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Introduced Version House Bill 4385 History

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hb4385 intr
H. B. 4385


(By Delegates Morgan, Michael and Perdue)
[Introduced February 4, 2008; referred to the
Committee on Government Organization.]




A BILL to amend and reenact §4-2-5 of the Code of West Virginia, 1931, as amended; and to amend and reenact §30-1A-1, §30-1A-2, §30-1A-3, §30-1A-4, §30-1A-5 and §30-1A-6 of said code, all relating to the powers and duties of the Legislative Auditor; authorizing audits of state funds, including funds derived from a state controlled function ; providing legislative intent as to proposals for regulating professions and occupations; allowing reports to be conducted by the Legislative Auditor by request; providing recommendations the Legislative Auditor may make in reports; and expanding the time period during which legislation may be considered before reapplication for regulation of a profession or occupation.

Be it enacted by the Legislature of West Virginia:
That §4-2-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §30-1A-1, §30-1A-2, §30-1A-3, §30-1A-4, §30-1A-5 and §30-1A-6 of said code be amended and reenacted, all to read as follows:

CHAPTER 4. THE LEGISLATURE.

ARTICLE 2. LEGISLATIVE AUDITOR; POWERS; FUNCTIONS; DUTIES; COMPENSATION.
§4-2-5. Powers of Auditor.
(a) (1) The Legislative Auditor shall have has the power and authority to examine the revenues, expenditures and performance of every spending unit of the state government, and of every public or private entity which is the recipient of state funds, including funds derived from a state controlled function, to the extent necessary to ascertain that the funds are properly expended and reported. and
(2) For these purposes shall have the Legislative Auditor has the authority, by such means as are necessary, to require:
(A) Any person holding office in the state government or employed by the state, to allow him the Legislative Auditor or his or her employee or designee to inspect the properties, equipment, facilities and records of the various agencies, departments, subdivisions or institutions of the state government for which appropriations are to be made or have been made, either before or after estimates therefor are submitted, and before, during and after the sessions of the Legislature; and
(B) Any public or private entity which is the recipient of state funds, including funds derived from a state controlled function, to allow
the Legislative Auditor or his or her employee or designee to inspect the properties, equipment, facilities and records of the entity to the extent necessary to ascertain that the state funds, including funds derived from a state controlled function, are properly expended and reported.
(b) Refusal of any person to allow such the inspection shall be reported by the Legislative Auditor to the committee.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 1A. PROCEDURE FOR REGULATION OF OCCUPATIONS AND PROFESSIONS.

§30-1A-1. Legislative findings.
(a) The Legislature finds that regulation should be imposed on an occupation or profession only when necessary for the protection of public health and safety.
(b) The Legislature further finds that establishing a procedure for reviewing the necessity of regulating an occupation or profession prior to enacting laws for such the regulation will better enable it to evaluate the need for the regulation and to determine the least restrictive regulatory alternative consistent with public health and safety.
(c) This article is intended to apply to any proposal to regulate a previously unregulated profession or occupation, including the formation of an independent board, regulation under an existing state agency, statutory certification or registration, or any other manner of regulation, including, but not limited to, those mechanisms set forth in subsection (d) of section three of this article.
§30-1A-2. Required application for regulation of professional or occupational group; application and reporting dates.

(a) Any professional or occupational group or organization, any individual or any other interested party which proposes the regulation of any unregulated professional or occupational group or organization, or who proposes to substantially revise or expand the scope of practice of a regulated profession or occupation, shall submit an application to the Joint Standing Committee on Government Organization, as set out in this article.
(b) The Joint Standing Committee on Government Organization may only accept an application for regulation of a professional or occupational group or organization, or substantial revision or expansion of the scope of practice of a regulated profession or occupation, when the party submitting an application files with the committee a statement of support for the proposed regulation which has been signed by at least ten residents or citizens of the State of West Virginia who are members of the professional or occupational group or organization for which regulation is being sought, or for which substantial revision or expansion of the scope of practice of a regulated profession or occupation is being sought.
(c) The completed application shall contain:
(1) A description of the occupational or professional group or organization for which regulation is proposed, or for which a substantial revision or expansion of the scope of practice of a regulated profession or occupation is proposed, including a list of associations, organizations and other groups currently representing the practitioners in this state, and an estimate of the number of practitioners in each group;
(2) A definition of the problem and the reasons why regulation or a substantial revision or expansion of the scope of practice is necessary;
(3) The reasons why certification, registration, licensure or other type of regulation is being requested and why that regulatory alternative was chosen;
(4) A detailed statement of the proposed funding mechanism to pay the administrative costs of the regulation or the substantial revision or expansion of the scope of practice; or of the fee structure conforming with the statutory requirements of financial autonomy as set out in this chapter
(5) A detailed statement of the location and manner in which the group or organization plans to maintain records which are accessible to the public; as set out in this chapter
(6) The benefit to the public that would result from the proposed regulation or substantial revision or expansion of the scope of practice; and
(7) The cost of the proposed regulation or substantial revision or expansion of the scope of practice.
(d) Notwithstanding the requirements for application set forth in this section, the President of the Senate or the Speaker of the House of Delegates may request that the Legislative Auditor conduct an evaluation and submit a report on the unregulated practice of a profession or occupation which includes analysis and findings as set forth in section three of this article.
§30-1A-3. Analysis and evaluation of application.
(a) The Joint Committee on Government Organization shall refer the completed application of the professional or occupational group or organization to the Performance Evaluation and Research Division of the Office of the Legislative Auditor.
(b) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall conduct an analysis and evaluation of the application. The analysis and evaluation shall be based upon the criteria listed in subsection (c) of this section. The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall submit a report, and such supporting materials as may be required, to the Joint Standing Committee on Government Organization, as set out in this section.
(c) For an application proposing the regulation of an unregulated professional or occupational group or organization, the report shall include evaluation, analysis and findings as to:
(1) Whether the unregulated practice of the occupation or profession clearly harms or endangers the health, safety or welfare of the public, and whether the potential for the harm is easily recognizable and not remote or dependent upon tenuous argument;
(2) Whether the practice of the profession or occupation requires specialized skill or training which is readily measurable or quantifiable so that examination or training requirements would reasonably assure initial and continuing professional or occupational competence;
(3) Whether the public can be adequately protected by other means in a more cost-effective manner; and
(4) Whether the professional or occupational group or organization should be regulated as proposed in the application.
(d) The report may include a recommendation that the occupation or profession be regulated by any of the following mechanisms, in whole or in part:
(1) By practice standards, which may include restrictions established by statute;
(2) By registration, which may include inspections or other enforcement provisions;
(3) By statutory certification, which may include testing or assessment of the practitioner's credential or competency;
(4) By supervision by a licensed practitioner, which may include practice standards, registration or statutory certification; or
(5) By licensure by a new or existing agency or board, which may include restrictions of the scope of practice, minimum competency, education, testing, registration, certification, inspection or enforcement.
(d) (e) For an application proposing the substantial revision or expansion of the scope of practice of a regulated profession or occupation, the report shall include the evaluation, analysis and findings as set forth in subsection (c) of this section inasmuch as applicable, and a clear recommendation as to whether the scope of practice should be substantially revised or expanded as proposed in the application.
(e) (f) For an application received after the first day of December and on or before the first day of June, the Performance Evaluation and Research Division of the Office of the Legislative Auditor shall present a report to the Joint Committee on Government Organization by the thirty-first day of December of that year.
(f) (g) For an application received after the first day of June and on or before the first day of December, the Performance Evaluation and Research Division of the Office of the Legislative Auditor shall present a report to the Joint Committee on Government Organization by the thirtieth day of June of the next year.
§30-1A-4. Public hearing and committee recommendations.
(a) After receiving the required report, the Joint Standing Committee on Government Organization may conduct public hearings to receive testimony from the public, the Governor or his or her designee, the group, organization or individual who submitted the proposal for regulation, and any other interested party.
(b) The joint standing committee on government organization shall report its findings and recommendations to the next regular session of the Legislature.
(c) The report shall include:
(1) Whether regulation of each occupation or profession is necessary for the public health and safety and, if regulation is necessary, recommendations as to what is the least restrictive type of regulation consistent with the public interest; and
(2) Whether regulation would result in the creation of a new agency or board or could be implemented more efficiently through an existing agency or board.
(d) The report may include a recommendation that the occupation or profession be regulated by any of the following mechanisms, in whole or in part:
(1) By practice standards, which may include restrictions established by statute;
(2) By registration, which may include inspections or other enforcement provisions;
(3) By statutory certification, which may include testing or assessment of the practitioner's credential or competency;
(4) By supervision by a licensed practitioner, which may include practice standards, registration or statutory certification;
(5) By licensure by a new or existing agency or board, which may include restrictions of the scope of practice, minimum competency, education, testing, registration, certification, inspection or enforcement.
§30-1A-5. Reapplication requirements.
(a) If an application is received by the Joint Standing Committee on Government Organization, approves an application for regulation of a professional or occupational group or organization but the legislation incorporating its recommendations imposing regulation does not become law in the year in which it is first introduced, the applicants for regulation may introduce legislation during each of the two four successive regular sessions without having to make reapplication.
(b) If the Joint Standing Committee on Government Organization Legislature does not approve an application adopt legislation within five successive regular sessions following the application for regulation, revision or expansion of the scope of practice of a professional or occupational group or organization, any party who continues to propose the regulation, revision or expansion must reapply in accordance with the provisions of this article.
§30-1A-6. Article construction.
(a) Nothing in this article shall be construed as limiting or interfering limits or interferes with the right of any member of the Legislature to introduce or of the Legislature to consider any bill that would create a new state governmental department or agency or amend the law with respect to an existing one.
(b) Notwithstanding the provisions of subsection (a) of this section, the recommendations of the Joint Standing Committee on Government Organization are to be given considerable weight in determining if a profession or occupation should be regulated, or if the scope of practice of a regulated profession or occupation should be revised or expanded.


NOTE: The purpose of this bill is to revise certain powers and duties of the Legislative Auditor. It authorizes audits of state funds, including funds derived from a state controlled function
, provides legislative intent as to proposals for regulating professions and occupations, allows reports to be conducted by the Legislative Auditor by request, provides recommendations the Legislative Auditor may make in reports and expands the time during which legislation may be considered before reapplication for regulation of a profession or occupation.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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