Senate Bill No. 1004
(By Senator Tomblin (Mr. President),
By Request of the Executive)
[Passed May 14, 2010; in effect ninety days from passage.]
AN ACT to repeal §27-1A-12 of the Code of West Virginia, 1931, as
amended; to repeal §27-2-1a and §27-2-1b of said code; to
amend and reenact §9-4C-1 and §9-4C-5 of said code; to amend
and reenact §9-5-11c of said code; to amend and reenact
§11-27-10 and §11-27-11 of said code; to amend and reenact
§16-1-4 of said code; to amend and reenact §16-2D-2 and
§16-2D-5 of said code; to amend and reenact §16-5F-2 of said
code; to amend and reenact §16-5O-2 of said code; to amend and
reenact §16-22-1 and §16-22-2 of said code; to amend and
reenact §16-29A-3 of said code; to amend and reenact §16-30-7
and §16-30-24 of said code; to amend and reenact §27-1-3,
§27-1-6, §27-1-7 and §27-1-9 of said code; to amend and
reenact §27-1A-1, §27-1A-4 and §27-1A-6 of said code; to amend
and reenact §27-2-1 of said code; to amend and reenact
§27-2A-1 of said code; to amend and reenact §27-5-9 of said
code; to amend and reenact §27-9-1 of said code; to amend and reenact §27-12-1 of said code; to amend and reenact §29-15-1,
§29-15-5 and §29-15-6 of said code; to amend and reenact
§44A-1-1 and §44A-1-2 of said code; and to amend and reenact
§49-4A-6 of said code, all relating to intellectually disabled
persons; revising nomenclature in favor of the term
"intellectual disability"; renaming facilities, operations and
references accordingly; removing antiquated code sections;
revising definitions; providing that previous terminology will
control in certain situations; and updating certain statutory
provisions to reflect prior changes occurring elsewhere in the
Be it enacted by the Legislature of West Virginia:
That §27-1A-12 of the Code of West Virginia, 1931, as amended,
be repealed; that §27-2-1a and §27-2-1b of said code be repealed;
that §9-4C-1 and §9-4C-5 of said code be amended and reenacted;
that §9-5-11c of said code be amended and reenacted; that §11-27-10
and §11-27-11 of said code be amended and reenacted; that §16-1-4
of said code be amended and reenacted; that §16-2D-2 and §16-2D-5
of said code be amended and reenacted; that §16-5F-2 of said code
be amended and reenacted; that §16-5O-2 of said code be amended and
reenacted; that §16-22-1 and §16-22-2 of said code be amended and
reenacted; that §16-29A-3 of said code be amended and reenacted;
that §16-30-7 and §16-30-24 of said code be amended and reenacted;
that §27-1-3, §27-1-6, §27-1-7 and §27-1-9 of said code be amended
and reenacted; that §27-1A-1, §27-1A-4 and §27-1A-6 of said code be amended and reenacted; that §27-2-1 of said code be amended and
reenacted; that §27-2A-1 of said code be amended and reenacted;
that §27-5-9 of said code be amended and reenacted; that §27-9-1 of
said code be amended and reenacted; that §27-12-1 of said code be
amended and reenacted; that §29-15-1, §29-15-5 and §29-15-6 of said
code be amended and reenacted; that §44A-1-1 and §44A-1-2 of said
code be amended and reenacted; and that §49-4A-6 of said code be
amended and reenacted, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 4C. HEALTH CARE PROVIDER MEDICAID ENHANCEMENT ACT.
The following words when used in this article have the
meanings ascribed to them in this section, except in those
instances where the context clearly indicates a different meaning:
(a) "Ambulance service provider" means a person rendering
ambulance services within this state and receiving reimbursement,
directly as an individual provider or indirectly as an employee or
agent of a medical clinic, partnership or other business entity.
(b) "General health care provider" means an audiologist, a
behavioral health center, a chiropractor, a community care center,
an independent laboratory, an independent X ray service, an
occupational therapist, an optician, an optometrist, a physical
therapist, a podiatrist, a private duty nurse, a psychologist, a
rehabilitative specialist, a respiratory therapist and a speech
therapist rendering services within this state and receiving reimbursement, directly as an individual provider or indirectly as
an employee or agent of a medical clinic, partnership or other
(c) "Inpatient hospital services provider" means a provider of
inpatient hospital services for purposes of Section 1903(w) of the
Social Security Act.
(d) "Intermediate care facility for individuals with an
intellectual disability services provider" means a provider of
intermediate care facility services for individuals with an
intellectual disability for purposes of Section 1903(w) of the
Social Security Act.
(e) "Nursing facility services provider" means a provider of
nursing facility services for purposes of Section 1903(w) of the
Social Security Act.
(f) "Outpatient hospital service provider" means a hospital
providing preventative, diagnostic, therapeutic, rehabilitative or
palliative services that are furnished to outpatients.
(g) "Secretary" means the Secretary of the Department of
Health and Human Resources.
(h) "Single state agency" means the single state agency for
Medicaid in this state.
§9-4C-5. Facility providers' Medicaid enhancement board.
(a) The outpatient hospital Medicaid enhancement board created
by this section shall cease to exist on the effective date of this
(b) There is hereby continued the facility providers' Medicaid
enhancement board to consist of seven members. In order to carry
out the purpose of this article, the board shall represent
ambulatory surgical centers, inpatient hospital service providers,
outpatient hospital service providers, nursing facility service
providers and intermediate care facility for individuals with an
intellectual disability service providers.
(c) The board shall consist of one representative from each of
the aforementioned classes of health care providers, one lay person
and the secretary, or his or her designee, who shall serve as an ex
officio, nonvoting member. The Governor shall make all
appointments within thirty days after the effective date of this
(d) After initial appointment of the board, any appointment to
fill a vacancy shall be for the unexpired term only, shall be made
in the same manner as the initial appointment, and the terms of all
members shall expire on July 1, 1996.
ARTICLE 5. MISCELLANEOUS PROVISIONS.
§9-5-11c. Right of the Department of Health and Human Resources to
recover medical assistance.
(a) Upon the death of a person who was fifty-five years of age
or older at the time the person received welfare assistance
consisting of nursing facility services, home and community-based
services, and related hospital and prescription drug services, the
Department of Health and Human Resources, in addition to any other available remedy, may file a claim or lien against the estate of
the recipient for the total amount of medical assistance provided
by Medicaid for nursing facility services, home and community-based
services, and related hospital and prescription drug services
provided for the benefit of the recipient. Claims so filed shall
be classified as and included in the class of debts due the state.
(b) The department may recover pursuant to subsection (a) only
after the death of the individual's surviving spouse, if any and
only after such time as the individual has no surviving children
under the age of twenty-one, or when the individual has no
surviving children who meet the Social Security Act's definition of
blindness or permanent and total disability.
(c) The state shall have the right to place a lien upon the
property of individuals who are inpatients in a nursing facility,
intermediate care facility for individuals with an intellectual
disability or other medical institution who, after notice and an
opportunity for a hearing, the state has deemed to be permanently
institutionalized. This lien shall be in an amount equal to
Medicaid expenditures for services provided by a nursing facility,
intermediate care facility for individuals with an intellectual
disability or other medical institution, and shall be rendered
against the proceeds of the sale of property except for a minimal
amount reserved for the individual's personal needs. Any such lien
dissolves upon that individual's discharge from the medical
institution. The secretary has authority to compromise or otherwise reduce the amount of this lien in cases where enforcement
would create a hardship.
(d) No lien may be imposed on such individual's home when the
home is the lawful residence of: (1) The spouse of the individual;
(2) the individual's child who is under the age of twenty-one; (3)
the individual's child meets the Social Security Act's definition
of blindness or permanent and total disability; or (4) the
individual's sibling has an equity interest in the home and was
residing in the home for a period of at least one year immediately
before the date of the individual's admission to a medical
(e) The filing of a claim, pursuant to this section, neither
reduces or diminishes the general claims of the Department of
Health and Human Resources, except that the department may not
receive double recovery for the same expenditure. The death of the
recipient neither extinguishes or diminishes any right of the
department to recover. Nothing in this section affects or prevents
a proceeding to enforce a lien pursuant to this section or a
proceeding to set aside a fraudulent conveyance.
(f) Any claim or lien imposed pursuant to this section is
effective for the full amount of medical assistance provided by
Medicaid for nursing facility services, home and community-based
services, and related hospital and prescription drug services.
The lien attaches and is perfected automatically as of the
beginning date of medical assistance, the date when a recipient first receives treatment for which the Department of Health and
Human Resources may be obligated to provide medical assistance. A
claim may be waived by the department, if the department
determines, pursuant to applicable federal law and rules and
regulations, that the claim will cause substantial hardship to the
surviving dependents of the deceased.
(g) Upon the effective date of this section, the Attorney
General, on behalf of the State of West Virginia, shall commence an
action in a court of competent jurisdiction to test the validity,
constitutionality, and the ability of the Congress of the United
States to mandate the implementation of this section. This
subsection does not limit the right of others, including
recipients, to intervene in any litigation, nor does it limit the
discretion of the Attorney General or appropriate counsel to seek
affected persons to act as parties to the litigation, either
individually or as a class.
CHAPTER 11. TAXATION.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-10. Imposition of tax on providers of intermediate care
facility services for individuals with an
(a) Imposition of tax.
-- For the privilege of engaging or
continuing within this state in the business of providing
intermediate care facility services for individuals with an
intellectual disability, there is levied and shall be collected from every person rendering such service an annual broad-based
health care related tax.
(b) Rate and measure of tax.
-- The tax imposed in subsection
(a) of this section is five and one-half percent of the gross
receipts derived by the taxpayer from furnishing intermediate care
facility services in this state to individuals with an intellectual
(1) "Gross receipts" means the amount received or receivable,
whether in cash or in kind, from patients, third-party payors and
others for intermediate care facility services furnished by the
provider, including retroactive adjustments under reimbursement
agreements with third-party payors, without any deduction for any
expenses of any kind: Provided,
That accrual basis providers are
allowed to reduce gross receipts by their contractual allowances,
to the extent those allowances are included therein, and by bad
debts, to the extent the amount of those bad debts was previously
included in gross receipts upon which the tax imposed by this
section was paid.
(2) "Contractual allowances" means the difference between
revenue (gross receipts) at established rates and amounts
realizable from third-party payors under contractual agreements.
(3) "Intermediate care facility services for individuals with
an intellectual disability" means those services that are
intermediate care facility services for individuals with an intellectual disability for purposes of Section 1903(w) of the
Social Security Act.
(d) Effective date.
-- The tax imposed by this section
applies to gross receipts received or receivable by providers after
May 31, 1993.
§11-27-11. Imposition of tax on providers of nursing facility
services, other than services of intermediate care
facilities for individuals with an intellectual
(a) Imposition of tax
. -- For the privilege of engaging or
continuing within this state in the business of providing nursing
facility services, other than those services of intermediate care
facilities for individuals with an intellectual disability, there
is levied and shall be collected from every person rendering such
service an annual broad-based health care related tax: Provided,
That hospitals which provide nursing facility services may adjust
nursing facility rates to the extent necessary to compensate for
the tax without first obtaining approval from the health care
authority: Provided, however,
That the rate adjustment is limited
to a single adjustment during the initial year of the imposition of
the tax which adjustment is exempt from prospective review by the
health care authority and further which is limited to an amount not
to exceed the amount of the tax which is levied against the
hospital for the provision of nursing facility services pursuant to
this section. The health care authority shall retroactively review the rate increases implemented by the hospitals under this section
during the regular rate review process. A hospital which fails to
meet the criteria established by this section for a rate increase
exempt from prospective review is subject to the penalties imposed
under article twenty-nine-b, chapter sixteen of the code.
(b) Rate and measure of tax
. -- The tax imposed in subsection
(a) of this section is five and one-half percent of the gross
receipts derived by the taxpayer from furnishing nursing facility
services in this state, other than services of intermediate care
facilities for individuals with an intellectual disability. This
rate shall be increased to five and ninety-five one hundredths
percent of the gross receipts received or receivable by providers
of nursing facility services after June 30, 2004, and shall again
be decreased to five and one- half percent of the gross receipts
received or receivable by providers of nursing services after
October 31, 2007.
(1) "Gross receipts" means the amount received or receivable,
whether in cash or in kind, from patients, third-party payors and
others for nursing facility services furnished by the provider,
including retroactive adjustments under reimbursement agreements
with third-party payors, without any deduction for any expenses of
any kind: Provided,
That accrual basis providers are allowed to
reduce gross receipts by their bad debts, to the extent the amount
of those bad debts was previously included in gross receipts upon which the tax imposed by this section was paid.
(2) "Nursing facility services" means those services that are
nursing facility services for purposes of Section 1903(w) of the
Social Security Act.
(d) Effective date
. -- The tax imposed by this section
applies to gross receipts received or receivable by providers after
May 31, 1993.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-4. Proposal of rules by the secretary.
The secretary may propose rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code
that are necessary and proper to effectuate the purposes of this
chapter. The secretary may appoint or designate advisory councils
of professionals in the areas of hospitals, nursing homes, barbers
and beauticians, postmortem examinations, mental health and
intellectual disability centers and any other areas necessary to
advise the secretary on rules.
The rules may include, but are not limited to, the regulation
(a) Land usage endangering the public health: Provided,
no rules may be promulgated or enforced restricting the subdivision
or development of any parcel of land within which the individual
tracts, lots or parcels exceed two acres each in total surface area
and which individual tracts, lots or parcels have an average frontage of not less than one hundred fifty feet even though the
total surface area of the tract, lot or parcel equals or exceeds
two acres in total surface area, and which tracts are sold, leased
or utilized only as single-family dwelling units. Notwithstanding
the provisions of this subsection, nothing in this section may be
construed to abate the authority of the department to: (1) Restrict
the subdivision or development of a tract for any more intense or
higher density occupancy than a single-family dwelling unit; (2)
propose or enforce rules applicable to single-family dwelling units
for single-family dwelling unit sanitary sewerage disposal systems;
or (3) restrict any subdivision or development which might endanger
the public health, the sanitary condition of streams or sources of
(b) The sanitary condition of all institutions and schools,
whether public or private, public conveyances, dairies,
slaughterhouses, workshops, factories, labor camps, all other
places open to the general public and inviting public patronage or
public assembly, or tendering to the public any item for human
consumption and places where trades or industries are conducted;
(c) Occupational and industrial health hazards, the sanitary
conditions of streams, sources of water supply, sewerage facilities
and plumbing systems and the qualifications of personnel connected
with any of those facilities, without regard to whether the
supplies or systems are publicly or privately owned; and the design
of all water systems, plumbing systems, sewerage systems, sewage treatment plants, excreta disposal methods and swimming pools in
this state, whether publicly or privately owned;
(d) Safe drinking water, including:
(1) The maximum contaminant levels to which all public water
systems must conform in order to prevent adverse effects on the
health of individuals and, if appropriate, treatment techniques
that reduce the contaminant or contaminants to a level which will
not adversely affect the health of the consumer. The rule shall
contain provisions to protect and prevent contamination of
wellheads and well fields used by public water supplies so that
contaminants do not reach a level that would adversely affect the
health of the consumer;
(2) The minimum requirements for: Sampling and testing; system
operation; public notification by a public water system on being
granted a variance or exemption or upon failure to comply with
specific requirements of this section and rules promulgated under
this section; record keeping; laboratory certification; as well as
procedures and conditions for granting variances and exemptions to
public water systems from state public water systems rules; and
(3) The requirements covering the production and distribution
of bottled drinking water and may establish requirements governing
the taste, odor, appearance and other consumer acceptability
parameters of drinking water;
(e) Food and drug standards, including cleanliness,
proscription of additives, proscription of sale and other requirements in accordance with article seven of this chapter as
are necessary to protect the health of the citizens of this state;
(f) The training and examination requirements for emergency
medical service attendants and emergency medical care
technician-paramedics; the designation of the health care
facilities, health care services and the industries and occupations
in the state that must have emergency medical service attendants
and emergency medical care technician-paramedics employed and the
availability, communications and equipment requirements with
respect to emergency medical service attendants and to emergency
medical care technician-paramedics: Provided,
That any regulation
of emergency medical service attendants and emergency medical care
technician-paramedics may not exceed the provisions of article
four-c of this chapter;
(g) The health and sanitary conditions of establishments
commonly referred to as bed and breakfast inns. For purposes of
this article, "bed and breakfast inn" means an establishment
providing sleeping accommodations and, at a minimum, a breakfast
for a fee: Provided,
That the secretary may not require an owner of
a bed and breakfast providing sleeping accommodations of six or
fewer rooms to install a restaurant-style or commercial food
service facility: Provided, however,
That the secretary may not
require an owner of a bed and breakfast providing sleeping
accommodations of more than six rooms to install a restaurant-type
or commercial food service facility if the entire bed and breakfast inn or those rooms numbering above six are used on an aggregate of
two weeks or less per year;
(h) Fees for services provided by the Bureau for Public Health
including, but not limited to, laboratory service fees,
environmental health service fees, health facility fees and permit
(i) The collection of data on health status, the health system
and the costs of health care;
(j) Opioid treatment programs duly licensed and operating
under the requirements of chapter twenty-seven of this code. The
health care authority shall develop new certificate of need
standards, pursuant to the provisions of article two-d of this
chapter, that are specific for opioid treatment program facilities.
No applications for a certificate of need for opioid treatment
programs shall be approved by the health care authority as of the
effective date of the 2007 amendments to this subsection. The
secretary shall promulgate revised emergency rules to govern
licensed programs: Provided,
That there is a moratorium on the
licensure of new opioid treatment programs that do not have a
certificate of need as of the effective date of the 2007 amendments
to this subsection, which shall continue until the Legislature
determines that there is a necessity for additional opioid
treatment facilities in West Virginia. The secretary shall file
revised emergency rules with the Secretary of State to regulate
opioid programs in compliance with subsections (1) through (9), inclusive, of this section: Provided, however,
That any opioid
treatment program facility that has received a certificate of need
pursuant to article two-d, of this chapter by the health care
authority shall be permitted to proceed to license and operate the
facility. All existing opioid treatment programs shall be in
compliance within one hundred eighty days of the effective date of
the revised emergency rules as required herein. The revised
emergency rules shall provide at a minimum:
(1) That the initial assessment prior to admission for entry
into the opioid treatment program shall include an initial drug
test to determine whether an individual is either opioid addicted
or presently receiving methadone for an opioid addiction from
another opioid treatment program. The patient may be admitted to
the program if there is a positive test for either opioids or
methadone or there are objective symptoms of withdrawal, or both,
and all other criteria set forth in the rule for admission into an
opioid treatment program are met: Provided,
That admission to the
program may be allowed to the following groups with a high risk of
relapse without the necessity of a positive test or the presence of
objective symptoms: Pregnant women with a history of opioid abuse,
prisoners or parolees recently released from correctional
facilities, former clinic patients who have successfully completed
treatment but who believe themselves to be at risk of imminent
relapse and HIV patients with a history of intravenous drug use.
(2) That within seven days of the admission of a patient, the opioid treatment program shall complete an initial assessment and
an initial plan of care. Subsequently, the opioid treatment
program shall develop a treatment plan of care by the thirtieth day
after admission and attach to the patient's chart no later than
five days after such plan is developed. The treatment plan is to
reflect that detoxification is an option for treatment and
supported by the program.
(3) That each opioid treatment program shall report and
provide statistics to the Department of Health and Human Resources
at least semiannually which includes the total number of patients;
the number of patients who have been continually receiving
methadone treatment in excess of two years, including the total
number of months of treatment for each such patient; the state
residency of each patient; the number of patients discharged from
the program, including the total months in the treatment program
prior to discharge and whether the discharge was for:
(A) Termination or disqualification;
(B) Completion of a program of detoxification;
(C) Voluntary withdrawal prior to completion of all
requirements of detoxification as determined by the opioid
treatment program; or
(D) An unexplained reason.
(4) That random drug testing of patients be conducted during
the course of treatment. For purposes of these rules, random drug
testing shall mean that each patient of an opioid treatment program facility has a statistically equal chance of being selected for
testing at random and at unscheduled times. Any refusal to
participate in a random drug test shall be considered a positive
That nothing contained in this section or the
legislative rules promulgated in conformity herewith will preclude
any opioid treatment program from administering such additional
drug tests as determined necessary by the opioid treatment program.
(5) That all random drug tests conducted by an opioid
treatment program shall, at a minimum, test for the following:
(A) Opiates, including oxycodone at common levels of dosing;
(B) Methadone and any other medication used by the program as
(C) Benzodiazepine including diazepam, lorazepan, clonazepam
(E) Methamphetamine or amphetamine; and
(F) Other drugs determined by community standards, regional
variation or clinical indication.
A positive test is a test that results in the presence of any
drug or substance listed in this schedule and any other drug or
substance prohibited by the opioid treatment program;
(6) That a positive drug test result after the first six
months in an opioid treatment program shall result in the
(A) Upon the first positive drug test result, the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling to the
patient, which shall include weekly meetings with a counselor who
is licensed, certified or enrolled in the process of obtaining
licensure or certification in compliance with the rules and on
staff at the opioid treatment program;
(2) Immediately revoke the take home methadone privilege for
a minimum of thirty days; and
(B) Upon a second positive drug test result within six months
of a previous positive drug test result, the opioid treatment
(1) Provide mandatory and documented weekly counseling, which
shall include weekly meetings with a counselor who is licensed,
certified or enrolled in the process of obtaining licensure or
certification in compliance with the rules and on staff at the
opioid treatment program;
(2) Immediately revoke the take-home methadone privilege for
a minimum of sixty days; and
(3) Provide mandatory documented treatment team meetings with
(C) Upon a third positive drug test result within a period of
six months the opioid treatment program shall:
(1) Provide mandatory and documented weekly counseling, which
shall include weekly meetings with a counselor who is licensed,
certified or enrolled in the process of obtaining licensure or certification in compliance with the rules and on staff at the
opioid treatment program;
(2) Immediately revoke the take-home methadone privilege for
a minimum of one hundred twenty days; and
(3) Provide mandatory and documented treatment team meetings
with the patient which will include, at a minimum: The need for
continuing treatment; a discussion of other treatment alternatives;
and the execution of a contract with the patient advising the
patient of discharge for continued positive drug tests.
(D) Upon a fourth positive drug test within a six-month
period, the patient shall be immediately discharged from the opioid
treatment program or, at the option of the patient, shall
immediately be provided the opportunity to participate in a
twenty-one day detoxification plan, followed by immediate discharge
from the opioid treatment program.
(7) That the opioid treatment program must report and provide
statistics to the Department of Health and Human Resources
demonstrating compliance with the random drug test rules including
(A) The random drug tests were truly random in regard to both
the patients tested and to the times random drug tests were
administered by lottery or some other objective standard so as not
to prejudice or protect any particular patient.
(B) The total number and the number of positive results; and
(C) The number of expulsions from the program.
(8) That all opioid treatment facilities be open for business
seven days per week: Provided,
That the opioid treatment center may
be closed for eight holidays and two training days per year.
(9) That the Office of Health Facility Licensure and
Certification develop policies and procedures in conjunction with
the Board of Pharmacy that will allow access to the Prescription
Drug Registry maintained by the Board of Pharmacy before
administration of methadone or other treatment in an opioid
treatment program, after any positive drug test, and at each
ninety-day treatment review to ensure the patient is not seeking
prescription medication from multiple sources.
(k) The secretary shall propose a rule for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code for the distribution of state
aid to local health departments and basic public health services
(1) The rule shall include the following provisions:
(A) Base allocation amount for each county;
(B) Establishment and administration of an emergency fund of
no more than two percent of the total annual funds of which unused
amounts are to be distributed back to local boards of health at the
end of each fiscal year;
(C) A calculation of funds utilized for state support of local
(D) Distribution of remaining funds on a per capita weighted population approach which factors coefficients for poverty, health
status, population density and health department interventions for
each county and a coefficient which encourages counties to merge in
the provision of public health services;
(E) A hold-harmless provision to provide that each local
health department receives no less in state support for a period of
three years beginning in the 2009 budget year.
(2) The Legislature finds that an emergency exists and,
therefore, the secretary shall file an emergency rule to implement
the provisions of this section pursuant to the provisions of
section fifteen, article three, chapter twenty-nine-a of this code.
The emergency rule is subject to the prior approval of the
Legislative Oversight Commission on Health and Human Resources
Accountability prior to filing with the Secretary of State.
(l) Other health-related matters which the department is
authorized to supervise and for which the rule-making authority has
not been otherwise assigned.
ARTICLE 2D. CERTIFICATE OF NEED.
Definitions of words and terms defined in articles five-f and
twenty-nine-b of this chapter are incorporated in this section
unless this section has different definitions.
As used in this article, unless otherwise indicated by the
(a) "Affected person" means:
(1) The applicant;
(2) An agency or organization representing consumers;
(3) Any individual residing within the geographic area served
or to be served by the applicant;
(4) Any individual who regularly uses the health care
facilities within that geographic area;
(5) The health care facilities which provide services similar
to the services of the facility under review and which will be
significantly affected by the proposed project;
(6) The health care facilities which, before receipt by the
state agency of the proposal being reviewed, have formally
indicated an intention to provide similar services in the future;
(7) Third-party payors who reimburse health care facilities
similar to those proposed for services;
(8) Any agency that establishes rates for health care
facilities similar to those proposed; or
(9) Organizations representing health care providers.
(b) "Ambulatory health care facility" means a free-standing
facility that provides health care to noninstitutionalized and
nonhomebound persons on an outpatient basis. For purposes of this
definition, a free-standing facility is not located on the campus
of an existing health care facility. This definition does not
include any facility engaged solely in the provision of lithotripsy
services or the private office practice of any one or more health
professionals licensed to practice in this state pursuant to the provisions of chapter thirty of this code: Provided,
exemption from review may not be construed to include practices
where major medical equipment otherwise subject to review under the
provisions of this article is acquired, offered or developed:
That this exemption from review may not be
construed to include certain health services otherwise subject to
review under the provisions of subdivision (1), subsection (a),
section four of this article.
(c) "Ambulatory surgical facility" means a free-standing
facility that provides surgical treatment to patients not requiring
hospitalization. For purposes of this definition, a free-standing
facility is not physically attached to a health care facility.
This definition does not include the private office practice of any
one or more health professionals licensed to practice surgery in
this state pursuant to the provisions of chapter thirty of this
That this exemption from review may not be
construed to include practices where major medical equipment
otherwise subject to review under the provisions of this article is
acquired, offered or developed: Provided, however,
exemption from review may not be construed to include health
services otherwise subject to review under the provisions of
subdivision (1), subsection (a), section four of this article.
(d) "Applicant" means: (1) The governing body or the person
proposing a new institutional health service who is, or will be,
the health care facility licensee wherein the new institutional health service is proposed to be located; and (2) in the case of a
proposed new institutional health service not to be located in a
licensed health care facility, the governing body or the person
proposing to provide the new institutional health service.
Incorporators or promoters who will not constitute the governing
body or persons responsible for the new institutional health
service may not be an applicant.
(e) "Bed capacity" means the number of beds licensed to a
health care facility or the number of adult and pediatric beds
permanently staffed and maintained for immediate use by inpatients
in patient rooms or wards in an unlicensed facility.
(f) "Campus" means the adjacent grounds and buildings, or
grounds and buildings not separated by more than a public
right-of-way, of a health care facility.
(g) "Capital expenditure" means:
(1) An expenditure made by or on behalf of a health care
(A) (i) Under generally accepted accounting principles is not
properly chargeable as an expense of operation and maintenance; or
(ii) is made to obtain either by lease or comparable arrangement
any facility or part thereof or any equipment for a facility or
(B)(i) Exceeds the expenditure minimum; or (ii) is a
substantial change to the bed capacity of the facility with respect
to which the expenditure is made; or (iii) is a substantial change to the services of such facility;
(2) The donation of equipment or facilities to a health care
facility, which if acquired directly by that facility would be
subject to review;
(3) The transfer of equipment or facilities for less than fair
market value if the transfer of the equipment or facilities at fair
market value would be subject to review; or
(4) A series of expenditures, if the sum total exceeds the
expenditure minimum and if determined by the state agency to be a
single capital expenditure subject to review. In making this
determination, the state agency shall consider: Whether the
expenditures are for components of a system which is required to
accomplish a single purpose; whether the expenditures are to be
made over a two-year period and are directed towards the
accomplishment of a single goal within the health care facility's
long-range plan; or whether the expenditures are to be made within
a two-year period within a single department such that they will
constitute a significant modernization of the department.
(h) "Expenditure minimum" means $2,700,000 for the calendar
year 2009. The state agency shall adjust the expenditure minimum
annually and publish an update of the amount on or before December
31 of each year. The expenditure minimum adjustment shall be based
on the DRI inflation index published in the Global Insight DRI/WEFA
Health Care Cost Review
, or its successor or appropriate
replacement index. This amount shall include the cost of any studies, surveys, designs, plans, working drawings, specifications
and other activities, including staff effort and consulting and
other services essential to the acquisition, improvement, expansion
or replacement of any plant or equipment.
(i) "Health", used as a term, includes physical and mental
(j) "Health care facility" means a publicly or privately owned
facility, agency or entity that offers or provides health care
services, whether a for-profit or nonprofit entity and whether or
not licensed, or required to be licensed, in whole or in part, and
includes, but is not limited to, hospitals; skilled nursing
facilities; kidney disease treatment centers, including
free-standing hemodialysis units; intermediate care facilities;
ambulatory health care facilities; ambulatory surgical facilities;
home health agencies; hospice agencies; rehabilitation facilities;
health maintenance organizations; and community mental health and
intellectual disability facilities. For purposes of this
definition, "community mental health and intellectual disability
facility" means a private facility which provides such
comprehensive services and continuity of care as emergency,
outpatient, partial hospitalization, inpatient or consultation and
education for individuals with mental illness, intellectual
disability or drug or alcohol addiction.
(k) "Health care provider" means a person, partnership,
corporation, facility, hospital or institution licensed or certified or authorized by law to provide professional health care
service in this state to an individual during that individual's
medical, remedial or behavioral health care, treatment or
(l) "Health maintenance organization" means a public or
private organization which:
(1) Is required to have a certificate of authority to operate
in this state pursuant to section three, article twenty-five-a,
chapter thirty-three of this code; or
(2) (A) Provides or otherwise makes available to enrolled
participants health care services, including substantially the
following basic health care services: Usual physician services,
hospitalization, laboratory, X ray, emergency and preventive
services and out-of-area coverage;
(B) Is compensated except for copayments for the provision of
the basic health care services listed in paragraph (A) of this
subdivision to enrolled participants on a predetermined periodic
rate basis without regard to the date the health care services are
provided and which is fixed without regard to the frequency, extent
or kind of health service actually provided; and
(C) Provides physicians' services: (i) Directly through
physicians who are either employees or partners of the
organization; or (ii) through arrangements with individual
physicians or one or more groups of physicians organized on a group
practice or individual practice basis.
(m) "Health services" means clinically related preventive,
diagnostic, treatment or rehabilitative services, including
alcohol, drug abuse and mental health services.
(n) "Home health agency" means an organization primarily
engaged in providing professional nursing services either directly
or through contract arrangements and at least one of the following
services: Home health aide services, other therapeutic services,
physical therapy, speech therapy, occupational therapy, nutritional
services or medical social services to persons in their place of
residence on a part-time or intermittent basis.
(o) "Hospice agency" means a private or public agency or
organization licensed in West Virginia for the administration or
provision of hospice care services to terminally ill persons in the
persons' temporary or permanent residences by using an
interdisciplinary team, including, at a minimum, persons qualified
to perform nursing services; social work services; the general
practice of medicine or osteopathy; and pastoral or spiritual
(p) "Hospital" means a facility licensed as such pursuant to
the provisions of article five-b of this chapter, and any acute
care facility operated by the state government, that primarily
provides inpatient diagnostic, treatment or rehabilitative services
to injured, disabled or sick persons under the supervision of
physicians and includes psychiatric and tuberculosis hospitals.
(q) "Intermediate care facility" means an institution that provides health-related services to individuals with mental or
physical conditions that require services above the level of room
and board, but do not require the degree of services provided in a
hospital or skilled-nursing facility.
(r) "Long-range plan" means a document formally adopted by the
legally constituted governing body of an existing health care
facility or by a person proposing a new institutional health
service which contains the information required by the state agency
in rules adopted pursuant to section eight of this article.
(s) "Major medical equipment" means a single unit of medical
equipment or a single system of components with related functions
which is used for the provision of medical and other health
services and costs in excess of $2,700,000 in the calendar year
2009. The state agency shall adjust the dollar amount specified in
this subsection annually and publish an update of the amount on or
before December 31 of each year. The adjustment of the dollar
amount shall be based on the DRI inflation index published in the
Global Insight DRI/WEFA Health Care Cost Review
or its successor or
appropriate replacement index. This term does not include medical
equipment acquired by or on behalf of a clinical laboratory to
provide clinical laboratory services if the clinical laboratory is
independent of a physician's office and a hospital and it has been
determined under Title XVIII of the Social Security Act to meet the
requirements of paragraphs ten and eleven, Section 1861(s) of such
act, Title 42 U.S.C. §1395x. In determining whether medical equipment is major medical equipment, the cost of studies, surveys,
designs, plans, working drawings, specifications and other
activities essential to the acquisition of such equipment shall be
included. If the equipment is acquired for less than fair market
value, the term "cost" includes the fair market value.
(t) "Medically underserved population" means the population of
an area designated by the state agency as having a shortage of
personal health services. The state agency may consider unusual
local conditions that are a barrier to accessibility or
availability of health services. The designation shall be in rules
adopted by the state agency pursuant to section eight of this
article, and the population so designated may include the state's
medically underserved population designated by the federal
Secretary of Health and Human Services under Section 330(b)(3) of
the Public Health Service Act, as amended, Title 42 U.S.C. §254.
(u) "New institutional health service" means any service as
described in section three of this article.
(v) "Nonhealth-related project" means a capital expenditure
for the benefit of patients, visitors, staff or employees of a
health care facility and not directly related to preventive,
diagnostic, treatment or rehabilitative services offered by the
health care facility. This includes, but is not limited to,
chapels, gift shops, news stands, computer and information
technology systems, educational, conference and meeting facilities,
but excluding medical school facilities, student housing, dining areas, administration and volunteer offices, modernization of
structural components, boiler repair or replacement, vehicle
maintenance and storage facilities, parking facilities, mechanical
systems for heating, ventilation systems, air conditioning systems
and loading docks.
(w) "Offer", when used in connection with health services,
means that the health care facility or health maintenance
organization holds itself out as capable of providing, or as having
the means to provide, specified health services.
(x) "Person" means an individual, trust, estate, partnership,
committee, corporation, association and other organizations such as
joint-stock companies and insurance companies, a state or a
political subdivision or instrumentality thereof or any legal
entity recognized by the state.
(y) "Physician" means a doctor of medicine or osteopathy
legally authorized to practice by the state.
(z) "Proposed new institutional health service" means any
service as described in section three of this article.
(aa) "Psychiatric hospital" means an institution that
primarily provides to inpatients, by or under the supervision of a
physician, specialized services for the diagnosis, treatment and
rehabilitation of mentally ill and emotionally disturbed persons.
(bb) "Rehabilitation facility" means an inpatient facility
operated for the primary purpose of assisting in the rehabilitation
of disabled persons through an integrated program of medical and other services which are provided under competent professional
(cc) "Review agency" means an agency of the state, designated
by the Governor as the agency for the review of state agency
(dd) "Skilled nursing facility" means an institution, or a
distinct part of an institution, that primarily provides inpatient
skilled nursing care and related services, or rehabilitation
services, to injured, disabled or sick persons.
(ee) "State agency" means the Health Care Authority created,
established and continued pursuant to article twenty-nine-b of this
(ff) "State health plan" means the document approved by the
Governor after preparation by the former statewide health
coordinating council or that document as approved by the Governor
after amendment by the former health care planning council or the
(gg) "Substantial change to the bed capacity" of a health care
facility means any change, associated with a capital expenditure,
that increases or decreases the bed capacity or relocates beds from
one physical facility or site to another, but does not include a
change by which a health care facility reassigns existing beds as
swing beds between acute care and long-term care categories:
That a decrease in bed capacity in response to federal
rural health initiatives is excluded from this definition.
(hh) "Substantial change to the health services" of a health
care facility means: (1) The addition of a health service offered
by or on behalf of the health care facility which was not offered
by or on behalf of the facility within the twelve-month period
before the month in which the service is first offered; or (2) the
termination of a health service offered by or on behalf of the
That "substantial change to the health
services" does not include the providing of ambulance service,
wellness centers or programs, adult day care or respite care by
acute care facilities.
(ii) "To develop", when used in connection with health
services, means to undertake those activities which upon their
completion will result in the offer of a new institutional health
service or the incurring of a financial obligation in relation to
the offering of such a service.
§16-2D-5. Powers and duties of state agency.
(a) The state agency shall administer the certificate of need
program as provided by this article.
(b) The state agency is responsible for coordinating and
developing the health planning research efforts of the state and
for amending and modifying the state health plan which includes the
certificate of need standards. The state agency shall review the
state health plan, including the certificate of need standards and
make any necessary amendments and modifications. The state agency
shall also review the cost effectiveness of the certificate of need program. The state agency may form task forces to assist it in
addressing these issues. The task forces shall be composed of
representatives of consumers, business, providers, payers and state
(c) The state agency may seek advice and assistance of other
persons, organizations and other state agencies in the performance
of the state agency's responsibilities under this article.
(d) For health services for which competition appropriately
allocates supply consistent with the state health plan, the state
agency shall, in the performance of its functions under this
article, give priority, where appropriate to advance the purposes
of quality assurance, cost effectiveness and access, to actions
which would strengthen the effect of competition on the supply of
(e) For health services for which competition does not or will
not appropriately allocate supply consistent with the state health
plan, the state agency shall, in the exercise of its functions
under this article, take actions, where appropriate to advance the
purposes of quality assurance, cost effectiveness and access and
the other purposes of this article, to allocate the supply of the
(f) Notwithstanding the provisions of section seven of this
article, the state agency may charge a fee for the filing of any
application, the filing of any notice in lieu of an application,
the filing of any exemption determination request or the filing of any request for a declaratory ruling. The fees charged may vary
according to the type of matter involved, the type of health
service or facility involved or the amount of capital expenditure
That any fee charged pursuant to this
subsection may not exceed a dollar amount to be established by
procedural rule. The state agency shall evaluate and amend any
procedural rule promulgated prior to the amendments to this
subsection made during the 2009 regular session of the Legislature.
The fees charged shall be deposited into a special fund known as
the Certificate of Need Program Fund to be expended for the
purposes of this article.
(g) A hospital, nursing home or other health care facility may
not add any intermediate care or skilled nursing beds to its
current licensed bed complement. This prohibition also applies to
the conversion of acute care or other types of beds to intermediate
care or skilled nursing beds: Provided,
That hospitals eligible
under the provisions of section four-a of this article and
subsection (i) of this section may convert acute care beds to
skilled nursing beds in accordance with the provisions of these
sections, upon approval by the state agency. Furthermore, a
certificate of need may not be granted for the construction or
addition of any intermediate care or skilled nursing beds except in
the case of facilities designed to replace existing beds in unsafe
existing facilities. A health care facility in receipt of a
certificate of need for the construction or addition of intermediate care or skilled nursing beds which was approved prior
to the effective date of this section shall incur an obligation for
a capital expenditure within twelve months of the date of issuance
of the certificate of need. Extensions may not be granted beyond
the twelve-month period. The state agency shall establish a task
force or utilize an existing task force to study the need for
additional nursing facility beds in this state. The study shall
include a review of the current moratorium on the development of
nursing facility beds; the exemption for the conversion of acute
care beds to skilled nursing facility beds; the development of a
methodology to assess the need for additional nursing facility
beds; and certification of new beds both by Medicare and Medicaid.
The task force shall be composed of representatives of consumers,
business, providers, payers and government agencies.
(h) No additional intermediate care facility for individuals
with an intellectual disability (ICF/ ID) beds may be granted a
certificate of need, except that prohibition does not apply to
ICF/MR beds approved under the Kanawha County Circuit Court order
of August 3, 1989, civil action number MISC-81-585 issued in the
case of E.H. v. Matin, 168 W.V. 248, 284 S.E. 2d 232 (1981).
(i) Notwithstanding the provisions of subsection (g) of this
section and further notwithstanding the provisions of subsection
(b), section three of this article, an existing acute care hospital
may apply to the Health Care Authority for a certificate of need to
convert acute care beds to skilled nursing beds: Provided,
That the proposed skilled nursing beds are Medicare-certified only:
That any hospital which converts acute care beds
to Medicare-certified only skilled nursing beds shall not bill for
any Medicaid reimbursement for any converted beds. In converting
beds, the hospital shall convert a minimum of one acute care bed
into one Medicare-certified only skilled nursing bed. The Health
Care Authority may require a hospital to convert up to and
including three acute care beds for each Medicare-certified only
skilled nursing bed: Provided further,
That a hospital designated
or provisionally designated by the state agency as a rural primary
care hospital may convert up to thirty beds to a distinct-part
nursing facility, including skilled nursing beds and intermediate
care beds, on a one-for-one basis if the rural primary care
hospital is located in a county without a certified freestanding
nursing facility and the hospital may bill for Medicaid
reimbursement for the converted beds: And provided further,
the hospital rejects the designation as a rural primary care
hospital, then the hospital may not bill for Medicaid
reimbursement. The Health Care Authority shall adopt rules to
implement this subsection which require that:
(1) All acute care beds converted shall be permanently deleted
from the hospital's acute care bed complement and the hospital may
not thereafter add, by conversion or otherwise, acute care beds to
its bed complement without satisfying the requirements of
subsection (b), section three of this article for which purposes an addition, whether by conversion or otherwise, shall be considered
a substantial change to the bed capacity of the hospital
notwithstanding the definition of that term found in subsection
(ff), section two of this article.
(2) The hospital shall meet all federal and state licensing
certification and operational requirements applicable to nursing
homes including a requirement that all skilled care beds created
under this subsection shall be located in distinct-part, long-term
(3) The hospital shall demonstrate a need for the project.
(4) The hospital shall use existing space for the Medicare-
certified only skilled nursing beds. Under no circumstances shall
the hospital construct, lease or acquire additional space for
purposes of this section.
(5) The hospital shall notify the acute care patient, prior to
discharge, of facilities with skilled nursing beds which are
located in or near the patient's county of residence. Nothing in
this subsection negatively affects the rights of inspection and
certification which are otherwise required by federal law or
regulations or by this code or duly adopted rules of an authorized
(j) (1) Notwithstanding the provisions of subsection (g) of
this section, a retirement life care center with no skilled nursing
beds may apply to the Health Care Authority for a certificate of
need for up to sixty skilled nursing beds provided the proposed skilled beds are Medicare-certified only. On a statewide basis, a
maximum of one hundred eighty skilled beds which are Medicare-
certified only may be developed pursuant to this subsection. The
state health plan is not applicable to projects submitted under
this subsection. The Health Care Authority shall adopt rules to
implement this subsection which shall include a requirement that:
(A) The one hundred eighty beds are to be distributed on a
(B) There be a minimum of twenty beds and a maximum of sixty
beds in each approved unit;
(C) The unit developed by the retirement life care center
meets all federal and state licensing certification and operational
requirements applicable to nursing homes;
(D) The retirement center demonstrates a need for the project;
(E) The retirement center offers personal care, home health
services and other lower levels of care to its residents; and
(F) The retirement center demonstrates both short- and
long-term financial feasibility.
(2) Nothing in this subsection negatively affects the rights
of inspection and certification which are otherwise required by
federal law or regulations or by this code or duly adopted rules of
an authorized state entity.
(k) The state agency may order a moratorium upon the offering
or development of a new institutional health service when criteria
and guidelines for evaluating the need for the new institutional health service have not yet been adopted or are obsolete. The
state agency may also order a moratorium on the offering or
development of a health service, notwithstanding the provisions of
subdivision (5), subsection (b), section three of this article,
when it determines that the proliferation of the service may cause
an adverse impact on the cost of health care or the health status
of the public. A moratorium shall be declared by a written order
which shall detail the circumstances requiring the moratorium.
Upon the adoption of criteria for evaluating the need for the
health service affected by the moratorium, or one hundred eighty
days from the declaration of a moratorium, whichever is less, the
moratorium shall be declared to be over and applications for
certificates of need are processed pursuant to section six of this
(l) (1) The state agency shall coordinate the collection of
information needed to allow the state agency to develop recommended
modifications to certificate of need standards as required in this
article. When the state agency proposes amendments or
modifications to the certificate of need standards, it shall file
with the Secretary of State, for publication in the State Register,
a notice of proposed action, including the text of all proposed
amendments and modifications, and a date, time and place for
receipt of general public comment. To comply with the public
comment requirement of this section, the state agency may hold a
public hearing or schedule a public comment period for the receipt of written statements or documents.
(2) When amending and modifying the certificate of need
standards, the state agency shall identify relevant criteria
contained in section six of this article or rules adopted pursuant
to section eight of this article and apply those relevant criteria
to the proposed new institutional health service in a manner that
promotes the public policy goals and legislative findings contained
in section one of this article. In doing so, the state agency may
consult with or rely upon learned treatises in health planning,
recommendations and practices of other health planning agencies and
organizations, recommendations from consumers, recommendations from
health care providers, recommendations from third-party payors,
materials reflecting the standard of care, the state agency's own
developed expertise in health planning, data accumulated by the
state agency or other local, state or federal agency or
organization and any other source deemed relevant to the
certificate of need standards proposed for amendment or
(3) All proposed amendments and modifications to the
certificate of need standards, with a record of the public hearing
or written statements and documents received pursuant to a public
comment period, shall be presented to the Governor. Within thirty
days of receiving the proposed amendments or modifications, the
Governor shall either approve or disapprove all or part of the
amendments and modifications and, for any portion of amendments or modifications not approved, shall specify the reason or reasons for
nonapproval. Any portions of the amendments or modifications not
approved by the Governor may be revised and resubmitted.
(4) The certificate of need standards adopted pursuant to this
section which are applicable to the provisions of this article are
not subject to article three, chapter twenty-nine-a of this code.
The state agency shall follow the provisions set forth in this
subsection for giving notice to the public of its actions, holding
hearings or receiving comments on the certificate of need
standards. The certificate of need standards in effect on November
29, 2005, and all prior versions promulgated and adopted in
accordance with the provisions of this section are and have been in
full force and effect from each of their respective dates of
approval by the Governor.
(m) The state agency may exempt from or expedite rate review,
certificate of need and annual assessment requirements and issue
grants and loans to financially vulnerable health care facilities
located in underserved areas that the state agency and the Office
of Community and Rural Health Services determine are collaborating
with other providers in the service area to provide cost effective
health care services.
ARTICLE 5F. HEALTH CARE FINANCIAL DISCLOSURE.
As used in this article:
(1) "Annual report" means an annual financial report for the covered facility's or related organization's fiscal year prepared
by an accountant or the covered facility's or related
(2) "Board" means the West Virginia Health Care Authority.
(3) "Covered facility" means any hospital, skilled nursing
facility, kidney disease treatment center, including a
free-standing hemodialysis unit; intermediate care facility;
ambulatory health care facility; ambulatory surgical facility; home
health agency; hospice agency; rehabilitation facility; health
maintenance organization; or community mental health or
intellectual disability facility, whether under public or private
ownership or as a profit or nonprofit organization and whether or
not licensed or required to be licensed, in whole or in part, by
the state: Provided,
That nonprofit, community-based primary care
centers providing primary care services without regard to ability
to pay which provide the board with a year-end audited financial
statement prepared in accordance with generally accepted auditing
standards and with governmental auditing standards issued by the
Comptroller General of the United States shall be deemed to have
complied with the disclosure requirements of this section.
(4) "Related organization" means an organization, whether
publicly owned, nonprofit, tax-exempt or for profit, related to a
covered facility through common membership, governing bodies,
trustees, officers, stock ownership, family members, partners or
limited partners, including, but not limited to, subsidiaries, foundations, related corporations and joint ventures. For the
purposes of this subdivision "family members" shall mean brothers
and sisters whether by the whole or half blood, spouse, ancestors
and lineal descendants.
(5) "Rates" means all rates, fees or charges imposed by any
covered facility for health care services.
(6) "Records" includes accounts, books, charts, contracts,
documents, files, maps, papers, profiles, reports, annual and
otherwise, schedules and any other fiscal data, however recorded or
ARTICLE 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.
As used in this article, unless a different meaning appears
from the context, the following definitions apply:
(a) "Administration of medication" means:
(1) Assisting a person in the ingestion, application or
inhalation of medications, including prescription drugs, or in the
use of universal precautions or rectal or vaginal insertion of
medication, according to the legibly written or printed directions
of the attending physician or authorized practitioner, or as
written on the prescription label; and
(2) Making a written record of such assistance with regard to
each medication administered, including the time, route and amount
That for purposes of this article,
"administration" does not include judgment, evaluation, assessments, injections of medication, monitoring of medication or
self-administration of medications, including prescription drugs
and self-injection of medication by the resident.
(b) "Authorizing agency" means the department's Office of
Health Facility Licensure and Certification.
(c) "Department" means the Department of Health and Human
(d) "Facility" means an ICF/ID, a personal care home,
residential board and care home, behavioral health group home,
private residence in which health care services are provided under
the supervision of a registered nurse or an adult family care home
that is licensed by or approved by the department.
(e) "Facility staff member" means an individual employed by a
facility but does not include a health care professional acting
within the scope of a professional license or certificate.
(f) "Health care professional" means a medical doctor or
doctor of osteopathy, a podiatrist, registered nurse, practical
nurse, registered nurse practitioner, physician's assistant,
dentist, optometrist or respiratory care professional licensed
under chapter thirty of this code.
(g) "ICF-ID" means an intermediate care facility for
individuals with an intellectual disability which is certified by
(h) "Medication" means a drug, as defined in section one
hundred one, article one, chapter sixty-a of this code, which has been prescribed by a duly authorized health care professional to be
ingested through the mouth, applied to the outer skin, eye or ear,
or applied through nose drops, vaginal or rectal suppositories.
(i) "Registered professional nurse" means a person who holds
a valid license pursuant to article seven, chapter thirty of this
(j) "Resident" means a resident of a facility.
(k) "Secretary" means the Secretary of the Department of
Health and Human Resources or his or her designee.
(l) "Self-administration of medication" means the act of a
resident, who is independently capable of reading and understanding
the labels of drugs ordered by a physician, in opening and
accessing prepackaged drug containers, accurately identifying and
taking the correct dosage of the drugs as ordered by the physician,
at the correct time and under the correct circumstances.
(m) "Supervision of self-administration of medication" means
a personal service which includes reminding residents to take
medications, opening medication containers for residents, reading
the medication label to residents, observing residents while they
take medication, checking the self administered dosage against the
label on the container and reassuring residents that they have
obtained and are taking the dosage as prescribed.
ARTICLE 22. DETECTION AND CONTROL OF PHENYLKETONURIA,
GALACTOSEMIA, HYPOTHYROIDISM, AND CERTAIN
OTHER DISEASES IN NEWBORN CHILDREN.
The Legislature finds that phenylketonuria, galactosemia,
hypothyroidism, and certain other diseases are usually associated
with intellectual disability or other severe health hazards.
Laboratory tests are readily available to aid in the detection of
these diseases and hazards to the health of those suffering from
these diseases may be lessened or prevented by early detection and
treatment. Damage from these diseases, if untreated in the early
months of life, is usually rapid and not appreciably affected by
§16-22-2. Program to combat intellectual disability or other
severe health hazards; rules; facilities for making
The State Bureau of Public Health is authorized to establish
and carry out a program designed to combat intellectual disability
or other severe health hazards in our state's population due to
phenylketonuria, galactosemia, hypothyroidism, and certain other
diseases specified by the State Public Health Commissioner, and may
adopt reasonable rules and regulations necessary to carry out such
a program. The Bureau of Public Health shall establish and
maintain facilities at its state hygienic laboratory for testing
specimens for the detection of phenylketonuria, galactosemia,
hypothyroidism, and certain other diseases specified by the State
Public Health Commissioner. Tests shall be made by such laboratory
of specimens upon request by physicians, hospital medical personnel and other individuals attending newborn infants. The State Bureau
of Public Health is authorized to establish additional laboratories
throughout the state to perform tests for the detection of
phenylketonuria, galactosemia, hypothyroidism, and certain other
diseases specified by the State Public Health Commissioner.
ARTICLE 29A. WEST VIRGINIA HOSPITAL FINANCE AUTHORITY ACT.
As used in this article, unless the context clearly requires
a different meaning:
(1) "Authority" means the West Virginia Hospital Finance
Authority created by section four of this article, the duties,
powers, responsibilities and functions of which are specified in
(2) "Board" means the West Virginia Hospital Finance Board
created by section four of this article, which shall manage and
control the authority;
(3) "Bond" means a revenue bond issued by the authority to
effect the purposes of this article;
(4) "Construction" means and includes new construction,
reconstruction, enlargement, improvement and providing furnishings
(5) "Direct provider of health care" means a person or
organization whose primary current activity is the provision of
health care to individuals and includes a licensed or certified
physician, osteopath, dentist, nurse, podiatrist or physician's assistant or an organization comprised of these health
professionals or employing these health professionals;
(6) "Hospital" means a corporation, association, institution
or establishment for the care of those who require medical
treatment, which may be a public or private corporation or
association, or state-owned or operated establishment and
specifically includes nursing homes which are licensed under
chapter sixteen of this code or those facilities certified under
the Social Security Act as intermediate care facilities for
individuals with an intellectual disability;
(7) "Hospital facilities" means any real or personal property
suitable and intended for, or incidental or ancillary to, use by a
hospital and includes: Outpatient clinics; laboratories; laundries;
nurses', doctors' or interns' residences; administration buildings;
facilities for research directly involved with hospital care;
maintenance, storage or utility facilities; parking lots and
garages; and all necessary, useful or related equipment,
furnishings and appurtenances and all lands necessary or convenient
as a site for the foregoing and specifically includes any capital
improvements to any of the foregoing. "Hospital facilities"
specifically includes office facilities not less than eighty
percent of which are intended for lease to direct providers of
health care and which are geographically or functionally related to
one or more other hospital facilities, if the authority determines
that the financing of the office facilities is necessary to accomplish the purposes of this article;
(8) "Hospital loan" means a loan made by the authority to a
hospital and specifically includes financings by the authority for
hospital facilities pursuant to lease-purchase agreements,
installment sale or other similar agreements;
(9) "Note" means a short-term promise to pay a specified
amount of money, payable and secured as provided pursuant to this
article and issued by the authority to effect the purposes of this
(10) "Project costs" means the total of the reasonable or
necessary costs incurred for carrying out the works and
undertakings for the acquisition or construction of hospital
facilities under this article. "Project costs" includes, but is
not limited to, all of the following costs: The costs of
acquisition or construction of the hospital facilities; studies and
surveys; plans, specifications, architectural and engineering
services; legal, organization, marketing or other special services;
financing, acquisition, demolition, construction, equipping and
site development of new and rehabilitated buildings;
rehabilitation, reconstruction, repair or remodeling of existing
buildings; interest and carrying charges during construction and
before full earnings are achieved and operating expenses before
full earnings are achieved or a period of one year following the
completion of construction, whichever occurs first; and a
reasonable reserve for payment of principal of and interest on bonds or notes of the authority. "Project costs" shall also
include reimbursement of a hospital for the foregoing costs
expended by a hospital from its own funds or from money borrowed by
the hospital for such purposes before issuance and delivery of
bonds or notes by the authority for the purpose of providing funds
to pay the project costs. "Project costs" also specifically
includes the refinancing of any existing debt of a hospital
necessary in order to permit the hospital to borrow from the
authority and give adequate security for the hospital loan. The
determination of the authority with respect to the necessity of
refinancing and adequate security for a hospital loan is
(11) "Revenue" means any money or thing of value collected by,
or paid to, the authority as principal of or interest, charges or
other fees on hospital loans or any other collections on hospital
loans made by the authority to hospitals to finance, in whole or in
part, the acquisition or construction of any hospital facilities or
other money or property which is received and may be expended for
or pledged as revenues pursuant to this article;
(12) "Veterans skilled nursing facility" means a skilled
nursing care facility constructed and operated to serve the needs
of veterans of the Armed Forces of the United States who are
citizens of this state.
ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.
§16-30-7. Determination of incapacity.
(a) For the purposes of this article, a person may not be
presumed to be incapacitated merely by reason of advanced age or
disability. With respect to a person who has a diagnosis of mental
illness or intellectual disability, such a diagnosis is not a
presumption that the person is incapacitated. A determination that
a person is incapacitated shall be made by the attending physician,
a qualified physician, a qualified psychologist or an advanced
nurse practitioner who has personally examined the person.
(b) The determination of incapacity shall be recorded
contemporaneously in the person's medical record by the attending
physician, a qualified physician, advanced nurse practitioner or a
qualified psychologist. The recording shall state the basis for
the determination of incapacity, including the cause, nature and
expected duration of the person's incapacity, if these are known.
(c) If the person is conscious, the attending physician shall
inform the person that he or she has been determined to be
incapacitated and that a medical power of attorney representative
or surrogate decision-maker may be making decisions regarding
life-prolonging intervention or mental health treatment for the
§16-30-24. Need for a second opinion regarding incapacity for
persons with psychiatric mental illness,
intellectual disability or addiction.
For persons with psychiatric mental illness, intellectual
disability or addiction who have been determined by their attending physician or a qualified physician to be incapacitated, a second
opinion by a qualified physician or qualified psychologist that the
person is incapacitated is required before the attending physician
is authorized to select a surrogate. The requirement for a second
opinion does not apply in those instances in which the medical
treatment to be rendered is not for the person's psychiatric mental
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-3. Intellectual disability.
"Intellectual disability" means significantly subaverage
intellectual functioning which manifests itself in a person during
his or her developmental period and which is characterized by his
or her inadequacy in adaptive behavior. Notwithstanding any
provision to the contrary, if any service provision or
reimbursement is affected by the changes in terminology adopted in
the 2010 First Extraordinary Session of the Legislature, the terms
"intellectual disability" or "individuals with an intellectual
disability" shall assume their previous terminology. It is not the
intent of the Legislature to expand the class of individuals
affected by this terminology change.
§27-1-6. State hospital.
"State hospital" means any hospital, center or institution, or
part of any hospital, center or institution, established,
maintained and operated by the Division of Health, or by the Division of Health in conjunction with a political subdivision of
the state, to provide inpatient or outpatient care and treatment
for the mentally ill, intellectually disabled or addicted. The
terms "hospital" and "state hospital" exclude correctional and
regional jail facilities.
§27-1-7. Administrator and clinical director.
(a) The administrator of a state-operated treatment facility
is its chief executive officer and has the authority to manage and
administer the financial, business and personnel affairs of such
facility. All other persons employed at the state-operated
treatment facility are under the jurisdiction and authority of the
administrator of the treatment facility who need not be a
(b) The clinical director has the responsibility for decisions
involving clinical and medical treatment of patients in a
state-operated mental health facility. The clinical director must
be a physician duly licensed to practice medicine in this state who
has completed training in an accredited program of post-graduate
education in psychiatry.
(c) In any facility designated by the Secretary of the
Department of Health and Human Resources as a facility for
individuals with an intellectual disability in which programs and
services are designed primarily to provide education, training and
rehabilitation rather than medical or psychiatric treatment, the
duties and responsibilities, other than those directly related to medical treatment services, assigned to the clinical director by
this section or elsewhere in this chapter, are assigned to and
become the responsibility of the administrator of that facility, or
of a person with expertise in the field of intellectual disability,
who need not be a physician, designated by the administrator.
§27-1-9. Mental health facility.
"Mental health facility" means any inpatient, residential or
outpatient facility for the care and treatment of the mentally ill,
intellectually disabled or addicted which is operated, or licensed
to operate, by the Department of Health and Human Resources and
includes state hospitals as defined in section six of this article.
The term also includes veterans administration hospitals, but does
not include any regional jail, juvenile or adult correctional
facility, or juvenile detention facility.
ARTICLE 1A. DEPARTMENT OF HEALTH.
§27-1A-1. Statement of policy.
The purpose of this article is to improve the administration
of the state hospitals, raise the standards of treatment of the
mentally ill and intellectually disabled in the state hospitals,
encourage the further development of outpatient and diagnostic
clinics, establish better research and training programs, and
promote the development of mental health.
§27-1A-4. Powers and duties of the secretary.
In addition to the powers and duties set forth in any other
provision of this code, the Secretary of the Department of Health and Human Resources has the following powers and duties:
(a) To develop and maintain a state plan which sets forth
needs of the state in the areas of mental health and intellectual
disability; goals and objectives for meeting those needs; plan of
operation for achieving the stated goals and objectives, including
organizational structure; and statement of requirements in
personnel funds and authority for achieving the goals and
(b) To appoint deputies and assistants to supervise the
departmental programs, including hospital and residential services,
and such other assistants and employees as may be necessary for the
efficient operation of the department and all its programs.
(c) To promulgate rules clearly specifying the respective
duties and responsibilities of program directors and fiscal
administrators, making a clear distinction between the respective
functions of these officials.
(d) To delegate to any of his or her appointees, assistants or
employees all powers and duties vested in the commissioner,
including the power to execute contracts and agreements in the name
of the department as provided in this article, but the commissioner
shall be responsible for the acts of such appointees, assistants
(e) To supervise and coordinate the operation of the state
hospitals named in article two of this chapter and any other state
hospitals, centers or institutions hereafter created for the care and treatment of the mentally ill or intellectually disabled, or
(f) To transfer a patient from any state hospital to any other
state hospital or clinic under his or her control and, by agreement
with the state Division of Corrections, transfer a patient from a
state hospital to an institution, other than correctional, under
the supervision of the state Division of Corrections.
(g) To make periodic reports to the Governor and to the
Legislature on the condition of the state hospitals, centers and
institutions or on other matters within his or her authority, which
shall include recommendations for improvement of any mental health
facility and any other matters affecting the mental health of the
people of the state.
The Secretary of the Department of Health and Human Resources
has all of the authority vested in the divisions of the former
Department of Mental Health, as hereinafter provided.
The Secretary of the Department of Health and Human Resources
is hereby authorized and empowered to accept and use for the
benefit of a state hospital, center or institution, or for any
other mental health purpose specified in this chapter, any gift or
devise of any property or thing which lawfully may be given. If
such a gift or devise is for a specific purpose or for a particular
state hospital, center or institution, it shall be used as
specified. Any gift or devise of any property or thing which
lawfully may be given and whatever profit may arise from its use or investment shall be deposited in a special revenue fund with the
State Treasurer, and shall be used only as specified by the donor
§27-1A-6. Division of professional services; powers and duties of
supervisor; liaison with other state agencies.
There is a Division of Professional Services established in
the Department of Mental Health. The supervisor of this division
shall assist the director in the operation of the programs or
services of the department and shall be a qualified psychiatrist.
The supervisor of this division has the following powers and
(1) To develop professional standards, provide supervision of
state hospitals, analyze hospital programs and inspect individual
(2) To assist in recruiting professional staff.
(3) To take primary responsibility for the education and
training of professional and subprofessional personnel.
(4) To carry on or stimulate research activities related to
medical and psychiatric facilities of the department, and render
specialized assistance to hospital superintendents.
(5) To establish liaison with appropriate state agencies and
with private groups interested in mental health, including the
state Bureau for Public Health, Division of Corrections, the
Department of Education, the Board of Governors of West Virginia
University, and the West Virginia Association for Mental Health, Incorporated.
(6) To license, supervise and inspect any hospital, center or
institution, or part of any hospital, center or institution,
maintained and operated by any political subdivision or by any
person, persons, association or corporation to provide inpatient
care and treatment for the mentally ill, or individuals with an
intellectual disability, or both.
(7) To perform any other duties assigned to the division by
the Secretary of the Department of Health and Human Resources.
ARTICLE 2. MENTAL HEALTH FACILITIES.
§27-2-1. State hospitals and other facilities; transfer of control
and property from Department of Mental Health to
Department of Health and Human Resources; civil service
The state hospitals heretofore established at Weston,
Huntington and Lakin, are continued and known respectively as the
William R. Sharpe, Jr. Hospital, Mildred-Mitchell Bateman
Hospital and Lakin Hospital. These state hospitals and centers are
managed, directed and controlled by the Department of Health and
Human Resources. Any person employed by the Department of Mental
Health who on the effective date of this article is a classified
civil service employee shall, within the limits contained in
section two, article six of chapter twenty-nine of this code,
remain in the civil service system as a covered employee. The
Secretary of the Department of Health and Human Resources is authorized to bring the state hospitals into structural compliance
with appropriate fire and health standards. All references in this
code or elsewhere in law to the "West Virginia Training School"
shall be taken and construed to mean and refer to the "Colin
The control of the property, records, and financial and other
affairs of state mental hospitals and other state mental health
facilities is transferred from the Department of Mental Health to
the Department of Health and Human Resources. The secretary shall,
in respect to the control and management of the state hospitals and
other state mental health facilities, perform the same duties and
functions as were heretofore exercised or performed by the Director
of Health. The title to all property of the state hospitals and
other state facilities is transferred to and vested in the
Department of Health and Human Resources.
Notwithstanding any other provisions of this code to the
contrary, whenever in this code there is a reference to the
Department of Mental Health, it shall be construed to mean and is
a reference to the Secretary of the Department of Health and Human
ARTICLE 2A. MENTAL HEALTH - INTELLECTUAL DISABILITY CENTERS.
§27-2A-1. Comprehensive community mental health-intellectual
disability centers; establishment, operation and
location; access to treatment.
(a) The Department of Health and Human Resources is authorized and directed to establish, maintain and operate comprehensive
community mental health centers and comprehensive intellectual
disability facilities, at locations within the state that are
determined by the secretary in accordance with the state's
comprehensive mental health plan and the state's comprehensive
intellectual disability plan. Such facilities may be integrated
with a general health care or other facility or remain separate as
the Secretary of the Department of Health and Human Resources may
by rules prescribe: Provided,
That nothing contained herein may be
construed to allow the Department of Health and Human Resources to
assume the operation of comprehensive regional mental health
centers or comprehensive intellectual disability facilities which
have been heretofore established according to law and which, as of
the effective date of this article, are being operated by local
(b) Any new mental health centers and comprehensive mental
retardation facilities herein provided may be operated and
controlled by the Department of Health and Human Resources or
operated, maintained and controlled by local nonprofit
organizations and licensed according to rules promulgated by the
Secretary of the Department of Health and Human Resources. All
comprehensive regional mental health and intellectual disability
facilities licensed in the state shall:
(1) Have a written plan for the provision of diagnostic,
treatment, supportive and aftercare services, and written policies and procedures for implementing these services;
(2) Have sufficient employees appropriately qualified to
provide these services;
(3) Maintain accurate medical and other records for all
patients receiving services;
(4) Render outpatient services in the aftercare of any patient
discharged from an inpatient hospital, consistent with the needs of
the individual. No person who can be treated as an outpatient at
a community mental health center may be admitted involuntarily into
a state hospital.
(5) Have a chief administrative officer directly responsible
to a legally constituted board of directors of a comprehensive
mental health or intellectual disability facility operated by a
local nonprofit organization, or to the Secretary of the Department
of Health and Human Resources if the comprehensive mental health or
intellectual disability center or facility is operated by the
Department of Health and Human Resources; and
(6) Have a written plan for the referral of patients for
evaluation and treatment for services not provided.
The state's share of costs of operating the facilities may be
provided from funds appropriated for this purpose within the budget
of the Department of Health and Human Resources. The Secretary of
the Department of Health and Human Resources shall administer these
funds among all comprehensive mental health and intellectual
disability facilities that are required to best provide comprehensive community mental health care and services to the
citizens of the state.
After July 1, but not later than August 1 of each year, the
chief administrative officer of each comprehensive regional mental
health center and intellectual disability facility shall submit a
report to the Secretary of the Department of Health and Human
Resources and to the Legislative Auditor containing a listing of:
(1) All funds received by the center or facility;
(2) All funds expended by the center or facility;
(3) All funds obligated by the center or facility;
(4) All services provided by the center or facility;
(5) The number of persons served by the center or facility;
(6) Other information as the Secretary of the Department of
Health and Human Resources prescribes by regulation.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-9. Rights of patients.
(a) No person may be deprived of any civil right solely by
reason of his or her receipt of services for mental illness,
intellectual disability or addiction, nor does the receipt of the
services modify or vary any civil right of the person, including,
but not limited to, civil service status and appointment, the right
to register for and to vote at elections, the right to acquire and
to dispose of property, the right to execute instruments or rights
relating to the granting, forfeiture or denial of a license, permit, privilege or benefit pursuant to any law, but a person who
has been adjudged incompetent pursuant to article eleven of this
chapter and who has not been restored to legal competency may be
deprived of such rights. Involuntary commitment pursuant to this
article does not of itself relieve the patient of legal capacity.
(b) Each patient of a mental health facility receiving
services from the facility shall receive care and treatment that is
suited to his or her needs and administered in a skillful, safe and
humane manner with full respect for his or her dignity and personal
(c) Every patient has the following rights regardless of
adjudication of incompetency:
(1) Treatment by trained personnel;
(2) Careful and periodic psychiatric reevaluation no less
frequently than once every three months;
(3) Periodic physical examination by a physician no less
frequently than once every six months; and
(4) Treatment based on appropriate examination and diagnosis
by a staff member operating within the scope of his or her
(d) The chief medical officer shall cause to be developed
within the clinical record of each patient a written treatment plan
based on initial medical and psychiatric examination not later than
seven days after he or she is admitted for treatment. The
treatment plan shall be updated periodically, consistent with reevaluation of the patient. Failure to accord the patient the
requisite periodic examinations or treatment plan and reevaluations
entitles the patient to release.
(e) A clinical record shall be maintained at a mental health
facility for each patient treated by the facility. The record
shall contain information on all matters relating to the admission,
legal status, care and treatment of the patient and shall include
all pertinent documents relating to the patient. Specifically, the
record shall contain results of periodic examinations,
individualized treatment programs, evaluations and reevaluations,
orders for treatment, orders for application for mechanical
restraint and accident reports, all signed by the personnel
(f) Every patient, upon his or her admission to a hospital and
at any other reasonable time, shall be given a copy of the rights
afforded by this section.
(g) The Secretary of the Department of Health and Human
Resources shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to protect the personal rights of
patients not inconsistent with this section.
ARTICLE 9. LICENSING OF HOSPITALS.
§27-9-1. License from director of health; regulations.
No hospital, center or institution, or part of any hospital,
center or institution, to provide inpatient, outpatient or other service designed to contribute to the care and treatment of the
mentally ill or intellectually disabled, or prevention of such
disorders, may be established, maintained or operated by any
political subdivision or by any person, persons, association or
corporation unless a license therefor is first obtained from the
Secretary of the Department of Health and Human Resources. The
application for such license shall be accompanied by a plan of the
premises to be occupied, and such other data and facts as the
secretary may require. The secretary may make such terms and
regulations in regard to the conduct of any licensed hospital,
center or institution, or part of any licensed hospital, center or
institution, as he or she thinks proper and necessary. The
secretary, or any person authorized by the secretary has authority
to investigate and inspect any licensed hospital, center or
institution, or part of any licensed hospital, center or
institution, and the secretary may revoke the license of any
hospital, center or institution, or part of any hospital, center or
institution, for good cause after reasonable notice to the
superintendent or other person in charge of the hospital, center or
ARTICLE 12. OFFENSES.
§27-12-1. Malicious making of medical certificate or complaint
as to mental condition.
Any physician who signs a certificate respecting the mental
condition of any person without having made the examination as provided by this chapter, or makes any statement in any such
certificate maliciously for the purpose of having such person
declared mentally ill, intellectually disabled or an inebriate, and
any person who maliciously makes application to any circuit court
or mental hygiene commission for the purpose of having another
person declared mentally ill, intellectually disabled, or an
inebriate, is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not exceeding $500, or imprisoned not exceeding one
year, or both fined and imprisoned at the discretion of the court.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 15. STATE COMMISSION ON INTELLECTUAL DISABILITY.
§29-15-1. Creation and composition.
There is created the State Commission on Intellectual
Disability hereinafter referred to as the commission.
Pursuant to subsection (g), section one, article two, chapter
five-f of this code, the commission created by this section is now
incorporated into and administered as part of the Department of
Health and Human Resources. All references to the commission in
this article shall be construed to mean the Department of Health
and Human Resources.
The Department of Health and Human Resources shall take action
to carry out the following purposes:
(a) Plan for and take other steps leading to comprehensive
state and community action to combat intellectual disability.
(b) Determine what action is needed to combat intellectual
disability in the state and the resources available for this
(c) Develop public awareness of the intellectual disability
problem and of the need for combating it.
(d) Coordinate state and local activities relating to the
various aspects of intellectual disability and its prevention,
treatment, or amelioration.
(e) Consult with and advise the Governor and Legislature on
all aspects of intellectual disability.
(f) Consult with and advise state agencies, boards or
departments with intellectual disability responsibilities relative
to the effective discharge of such responsibilities.
§29-15-6. State agency for federal intellectual disability
The Department of Health and Human Resources is designated and
established as the sole state agency for receiving appropriations
under and carrying out the purposes of section five of Public Law
88-156, eighty-eighth Congress approved October 24, 1963, and any
law amending, revising, supplementing or superseding section five
of said Public Law 88-156.
The department constitutes the designated state agency for
handling all programs of the federal government relating to
intellectual disability requiring action within the state which are
not the specific responsibility of another state agency under the provisions of federal law, rules or regulations, or which have not
been specifically entrusted to another state agency by the
CHAPTER 44A. WEST VIRGINIA GUARDIANSHIP
AND CONSERVATORSHIP ACT.
ARTICLE 1. DEFINITIONS AND GENERAL PROVISIONS.
§44A-1-1. Short title and legislative findings.
This chapter is known and may be cited as the "West Virginia
Guardianship and Conservatorship Act."
The Legislature finds that section six, article eight of the
Constitution of the State of West Virginia gives it the
discretionary authority to pass legislation which "...provides that
all matters of probate, the appointment and qualification of
personal representatives, guardians, committees and curators, and
the settlements of their accounts..." be under the exclusive
jurisdiction of circuit courts. The Legislature further finds and
declares that the use of the word "all" does not require an
interpretation that the Legislature must place every aspect of such
matters with circuit courts, but, that because of the discretionary
authority given, the Legislature may transfer, from time to time,
only those matters which it believes would be better served under
the jurisdiction of circuit courts.
The Legislature further finds and declares that legal
proceedings requiring a tribunal to determine whether persons
should be appointed to manage the personal or financial affairs of individuals deemed mentally incompetent, intellectually disabled,
mentally handicapped or missing involve considerations of
constitutionally protected rights which can best be resolved within
the circuit courts of this state.
§44A-1-2. Determinations and appointments under prior law.
(a) Any person determined to be "mentally incompetent",
"intellectually disabled" or "mentally handicapped" and for such
reason deemed to be in need of a guardian or committee pursuant to
any order entered and in effect before the effective date of this
chapter is deemed to be a "protected person" within the meaning of
this chapter, after its effective date, unless any such
determination be revoked or otherwise modified.
(b) Any person heretofore appointed to serve as a committee
for an incompetent person and any person appointed to serve as a
guardian for an individual with an intellectual disability or for
a mentally handicapped person, is, as of the effective date of this
chapter, deemed to be: (1) A guardian, within the meaning of this
chapter, if the order appointing such person provides that the
person so appointed has responsibility only for the personal
affairs of a mentally incompetent, intellectually disabled or
mentally handicapped person; (2) a conservator, within the meaning
of this chapter, if the order appointing such person provides that
the person so appointed had responsibility only for managing the
estate and financial affairs of a mentally incompetent
intellectually disabled or mentally handicapped person; or (3) a guardian and a conservator, within the meaning of this chapter, if
the order appointing such person does not set forth limitations of
responsibility for both the personal affairs and the financial
affairs of a mentally incompetent intellectually disabled, or
mentally handicapped person.
(c) After the effective date of this chapter, the circuit
courts have exclusive jurisdiction of all matters involving
determinations of mental incompetency, intellectual disability or
mental handicap, including the jurisdiction of any proceedings
pending as of that effective date. All orders entered before the
effective date of this chapter in those cases shall remain in full
force and effect until terminated, revoked or modified as provided
(d) All persons heretofore appointed to serve as a committee
or as a guardian retain their authority, powers and duties in that
capacity, except to the extent that their authority, powers and
duties as guardian or conservator under the provisions of this
chapter are more specifically enumerated, in which event the
committee or guardian has the authority, powers and duties so
Wherever in the Constitution, the Code of West Virginia, Acts
of the Legislature or elsewhere in law a reference is made to a
committee for an incompetent person, such reference shall be read,
construed and understood to mean guardian and/or conservator as
defined in this chapter.
(e) The provisions of this chapter providing for the
presentation of reports by guardians and the presentation of
accountings by conservators may not be retroactively applied, and
applicable law in effect before the effective date of this chapter
controls as to any reports or accountings to be made or filed for
any period before the effective date of this chapter.
(f) As used in this section, "prior law" refers to article
eleven, chapter twenty-seven of this code, relating to the
appointment of committees for mentally incompetent persons, and to
article ten-a, chapter forty-four, relating to the appointment of
guardians for individuals with an intellectual disability and
mentally handicapped persons, as those articles were in effect
before the effective date of this chapter.
CHAPTER 49. CHILD WELFARE.
ARTICLE 4A. WEST VIRGINIA FAMILY SUPPORT PROGRAM.
§49-4A-6. Regional and state family support councils.
(a) Each regional family support agency shall establish a
regional family support council comprised of at least seven
members, of whom at least a majority shall be persons with
developmental disabilities or their parents or primary caregivers.
Each regional family support council shall meet at least quarterly
to advise the regional family support agency on matters related to
local implementation of the family support program and to
communicate information and recommendations regarding the family
support program to the state Family Support Council.
(b) The Secretary of the Department of Health and Human
Resources shall appoint a state Family Support Council comprised of
at least twenty-two members, of whom at least a majority shall be
persons with developmental disabilities or their parents or primary
caregivers. A representative elected by each regional council
shall serve on the state council. The state council shall also
include a representative from each of the following agencies: The
state Developmental Disabilities Council, the state Protection and
Advocacy Agency, the Center for Excellence in Disabilities, the
Office of Special Education, the Behavioral Health Care Providers
Association and the Early Intervention Interagency Coordinating
(c) The state council shall meet at least quarterly. The
state council will participate in the development of program
policies and procedures, annual contracts and perform such other
duties as are necessary for statewide implementation of the family
(d) Members of the state and regional councils who are a
member of the family or the primary caregiver of a developmentally
disabled person shall be reimbursed for travel and lodging expenses
incurred in attending official meetings of their councils. Child
care expenses related to the developmentally disabled person shall
also be reimbursed. Members of regional councils who are eligible
for expense reimbursement shall be reimbursed by their respective
regional family support agencies.