H. B. 4086
(By Delegates Cowles, Williams,
Schadler and J. Miller)
[Introduced January 17, 2008; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to amend and reenact §16-1-3 of the Code of West Virginia,
1931, as amended; and to amend and reenact §16-2-11 of said
code, all relating to the vesting of power in the Legislature
to regulate smoking in fraternal organizations and private
clubs; and for the removal of fraternal organizations and
private clubs from the smoking bans enacted by local health
departments.
Be it enacted by the Legislature of West Virginia:
That §16-1-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §16-2-11 of said code be amended
and reenacted, all to read as follows:
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-3. Powers and duties of the secretary.
(a) The secretary may establish a state public health system.
(b) All powers and duties of the director of health previously established by former section ten of this article that are not
specifically included in this chapter as powers and duties of the
commissioner are powers and duties of the secretary.
(c) As necessary for the effective, efficient and economical
operation of the system, the secretary may from time to time
delegate, assign, transfer or combine responsibilities or duties to
or among employees of the department.
(d) Within the limits of applicable federal law, the secretary
may require every applicant for a license, permit, certificate of
registration, or registration under this chapter to place his or
her social security number on the application.
(e) No power or authority granted within this article of code
is construed to allow the secretary to promulgate rules which ban
smoking at fraternal organizations or private clubs. This power is
solely vested in the Legislature of West Virginia.
ARTICLE 2. LOCAL BOARDS OF HEALTH.
§16-2-11. Local board of health; powers and duties.
(a) Each local board of health created, established and
operated pursuant to the provisions of this article shall:
(1) Provide the following basic public health services and
programs in accordance with state public health performance-based
standards:
(i) Community health promotion including assessing and
reporting community health needs to improve health status, facilitating community partnerships including identifying the
community's priority health needs, mobilization of a community
around identified priorities and monitoring the progress of
community health education services;
(ii) Environmental health protection including the promoting
and maintaining of clean and safe air, water, food and facilities
and the administering of public health laws as specified by the
commissioner as to general sanitation, the sanitation of public
drinking water, sewage and wastewater, food and milk, and the
sanitation of housing, institutions, and recreation; and
(iii) Communicable or reportable disease prevention and
control including disease surveillance, case investigation and
follow-up, outbreak investigation, response to epidemics, and
prevention and control of rabies, sexually transmitted diseases,
vaccine preventable diseases, HIV/AIDS, tuberculosis and other
communicable and reportable diseases;
(2) Appoint a local health officer to serve at the will and
pleasure of the local board of health with approval of the
commissioner;
(3) Submit a general plan of operation to the commissioner for
approval, if it receives any state or federal money for health
purposes. This program plan shall be submitted annually and comply
with provisions of the local board of health standards
administrative rule;
(4) Provide equipment and facilities for the local health
department that are in compliance with federal and state law;
(5) Permit the commissioner to act by and through it, as
needed. The commissioner may enforce all public health laws of
this state, the rules and orders of the secretary, any county
commission orders or municipal ordinances of the board's service
area relating to public health, and the rules and orders of the
local board within the service area of a local board. The
commissioner may enforce these laws, rules and orders when, in the
opinion of the commissioner, a public health emergency exists or
when the local board fails or refuses to enforce public health laws
and rules necessary to prevent and control the spread of a
communicable or reportable disease dangerous to the public health.
The expenses incurred shall be charged against the counties or
municipalities concerned;
(6) Deposit all moneys and collected fees into an account
designated for local board of health purposes. The moneys for a
municipal board of health shall be deposited with the municipal
treasury in the service area. The moneys for a county board of
health shall be deposited with the county treasury in the service
area. The moneys for a combined local board of health shall be
deposited in an account as designated in the plan of combination
:
Provided, That nothing contained in this subsection is intended to
conflict with the provisions of article one, chapter sixteen of this code;
(7) Submit vouchers or other instruments approved by the board
and signed by the local health officer or designated representative
to the county or municipal treasurer for payment of necessary and
reasonable expenditures from the county or municipal public health
funds:
Provided, That a combined local board of health shall draw
upon its public health funds account in the manner designated in
the plan of combination;
(8) Participate in audits, be in compliance with tax
procedures required by the state and annually develop a budget for
the next fiscal year;
(9) Perform public health duties assigned by order of a county
commission or by municipal ordinance consistent with state public
health laws; and
(10) Enforce the public health laws of this state and any
other laws of this state applicable to the local board.
(b) Each local board of health created, established and
operated pursuant to the provisions of this article may:
(1) Provide primary care services, clinical and categorical
programs, and enhanced public health services;
(2) Employ or contract with any technical, administrative,
clerical or other persons, to serve as needed and at the will and
pleasure of the local board of health. Staff and any contractors
providing services to the board shall comply with applicable West Virginia certification and licensure requirements. Eligible staff
employed by the board shall be covered by the rules of the Division
of Personnel under section six, article ten, chapter twenty-nine of
this code. However, any local board of health may, in the
alternative and with the consent and approval of the appointing
authority, establish and adopt a merit system for its eligible
employees. The merit system may be similar to the state merit
system and may be established by the local board by its order,
subject to the approval of the appointing authority, adopting and
making applicable to the local health department all, or any
portion of any order, rule, standard, or compensation rate in
effect in the state merit system as may be desired and as is
properly applicable;
(3) Adopt and promulgate and from time to time amend rules
consistent with state public health laws and the rules of the West
Virginia State Department of Health and Human Resources, that are
necessary and proper for the protection of the general health of
the service area and the prevention of the introduction,
propagation and spread of disease. All rules shall be filed with
the clerk of the county commission or the clerk or the recorder of
the municipality or both and shall be kept by the clerk or
recording officer in a separate book as public records;
(4) Accept, receive and receipt for money or property from any
federal, state or local governmental agency, from any other public source or from any private source, to be used for public health
purposes or for the establishment or construction of public health
facilities;
(5) Assess, charge and collect fees for permits and licenses
for the provision of public health services:
Provided, That
permits and licenses required for agricultural activities may not
be assessed, charged or collected:
Provided, however, That a local
board of health may assess, charge and collect all of the expenses
of inspection of the physical plant and facilities of any
distributor, producer or pasteurizer of milk whose milk
distribution, production or pasteurization facilities are located
outside this state but who sells or distributes in the state, or
transports, causes or permits to be transported into this state,
milk or milk products for resale, use or consumption in the state
and in the service area of the local board of health. A local
board of health may not assess, charge and collect the expenses of
inspection if the physical plant and facilities are regularly
inspected by another agency of this state or its governmental
subdivisions or by an agency of another state or its governmental
subdivisions certified as an approved inspection agency by the
commissioner. No more than one local board of health may act as
the regular inspection agency of the physical plant and facilities;
when two or more include an inspection of the physical plant and
facilities in a regular schedule, the commissioner shall designate one as the regular inspection agency;
(6) Assess, charge and collect fees for services provided by
the local health department:
Provided, That fees for services
shall be submitted to and approved by the commissioner;
(7) Contract for payment with any municipality, county or
Board of Education for the provision of local health services or
for the use of public health facilities. Any contract shall be in
writing and permit provision of services or use of facilities for
a period not to exceed one fiscal year. The written contract may
include provisions for annual renewal by agreement of the parties;
and
(8) Retain and make available child safety car seats, collect
rental and security deposit fees for the expenses of retaining and
making available child safety car seats, and conduct public
education activities concerning the use and preventing the misuse
of child safety car seats
: Provided, That this subsection is not
intended to conflict with the provisions of section forty-six,
article fifteen, chapter seventeen-c of this code:
Provided,
however, That any local board of health offering a child safety car
seat program or employee or agent of a local board of health is
immune from civil or criminal liability in any action relating to
the improper use, malfunction or inadequate maintenance of the
child safety car seat and in any action relating to the improper
placement, maintenance or securing of a child in a child safety car seat.
(c) Each local board of health created, established and
operated pursuant to the provisions of this article may not
regulate the indoor air, by means of smoking regulations, for
fraternal organizations or private clubs.
All regulations passed by local boards of health concerning a
ban on smoking indoors or clean air are no longer applicable toward
fraternal organizations and private clubs.
(c) (d) The local boards of health are charged with protecting
the health and safety, as well as promoting the interests of the
citizens of West Virginia. All state funds appropriated by the
Legislature for the benefit of local boards of health shall be used
for provision of basic public health services.
NOTE: The purpose of this bill is to vest power in the
Legislature to regulate smoking in fraternal organizations and
private clubs; and for the removal of fraternal organizations and
private clubs from the smoking bans enacted by local health
departments.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.