§16-1-1. Purpose.

It is the policy of this state to promote the physical and mental health of all of its citizens and to prevent disease, injury, and disability whenever possible. The state recognizes its responsibility to assist in the provision of essential public health services and establishes by this article a state public health system to work in conjunction with local boards of health to provide basic public health services that encourage healthy people in healthy communities. Until January 1, 2024, the Bureau for Public Health and the Department of Health and Human Resources shall have those powers and duties respecting the administration of the state public health system as authorized, granted and imposed by this chapter and elsewhere by law.

Beginning January 1, 2024, the Department of Health is comprised of the agencies as provided in §5F-2-1a of this code, is charged with the administration of this chapter, and shall have those powers and duties respecting the administration of the state public health system as authorized, granted and imposed by this chapter and elsewhere by law.

§16-1-2. Definitions.

As used in this article:

(1) "Basic public health services" means those services that are necessary to protect the health of the public;

(2) "Bureau" means the Bureau for Public Health in the department;

(3) "Combined local board of health" means one form of organization for a local board of health and means a board of health serving any two or more counties or any county or counties and one or more municipalities within or partially within the county or counties;

(4) "Commissioner" means the commissioner of the bureau, who may be designated as the state health officer;

(5) "County board of health" means one form of organization for a local board of health and means a local board of health serving a single county;

(6) "Department" means the Department of Health.

(7) "Director" or "director of health" means the state health officer. Administratively within the department, the bureau through its commissioner carries out the public health functions of the department, unless otherwise assigned by the secretary;

(8) "Essential public health services" means the core public health activities necessary to promote health and prevent disease, injury, and disability for the citizens of the state. The services include:

(A) Monitoring health status to identify community health problems;

(B) Diagnosing and investigating health problems and health hazards in the community;

(C) Informing, educating, and empowering people about health issues;

(D) Mobilizing community partnerships to identify and solve health problems;

(E) Developing policies and plans that support individual and community health efforts;

(F) Enforcing laws and rules that protect health and ensure safety;

(G) Uniting people with needed personal health services and assuring the provision of health care when it is otherwise not available;

(H) Promoting a competent public health and personal health care workforce;

(I) Evaluating the effectiveness, accessibility, and quality of personal and population-based health services; and

(J) Researching for new insights and innovative solutions to health problems;

(9) "Local board of health", "local board", or "board" means a board of health serving one or more counties or one or more municipalities or a combination thereof;

(10) "Local health department" means the staff of the local board of health;

(11) "Local health officer" has the meaning ascribed in §16-2-2 of this code.

(12) "Municipal board of health" means one form of organization for a local board of health and means a board of health serving a single municipality;

(13) "Performance-based standards" means generally accepted, objective standards such as rules or guidelines against which public health performance can be measured;

(14) "Potential source of significant contamination" means a facility or activity that stores, uses, or produces substances or compounds with potential for significant contaminating impact if released into the source water of a public water supply;

(15) "Public groundwater supply source" means a primary source of water supply for a public water system which is directly drawn from a well, underground stream, underground reservoir, underground mine, or other primary source of water supplies which is found underneath the surface of the state;

(16) "Public surface water supply source" means a primary source of water supply for a public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments, or other primary sources of water supplies which are found on the surface of the state;

(17) "Public surface water influenced groundwater supply source" means a source of water supply for a public water system which is directly drawn from an underground well, underground river or stream, underground reservoir, or underground mine, and the quantity and quality of the water in that underground supply source is heavily influenced, directly or indirectly, by the quantity and quality of surface water in the immediate area;

(18) "Public water system" means:

(A) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of 25 individuals per day for at least 60 days per year, or which has at least 15 service connections, and shall include:

(i) Any collection, treatment, storage, and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and

(ii) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system;

(B) A public water system does not include a system which meets all of the following conditions:

(i) Consists only of distribution and storage facilities and does not have any collection and treatment facilities;

(ii) Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;

(iii) Does not sell water to any person; and

(iv) Is not a carrier conveying passengers in interstate commerce;

(19) "Public water utility" means a public water system which is regulated by the West Virginia Public Service Commission pursuant to the provisions of §24-1-1 et seq. of this code;

(20) "Secretary" means the secretary of the department;

(21) "Service area" means the territorial jurisdiction of a local board of health; and

(22) "Zone of critical concern" for a public surface water supply is a corridor along streams within a watershed that warrant more detailed scrutiny due to its proximity to the surface water intake and the intake's susceptibility to potential contaminants within that corridor. The zone of critical concern is determined using a mathematical model that accounts for stream flows, gradient, and area topography. The length of the zone of critical concern is based on a five-hour time-of-travel of water in the streams to the water intake, plus an additional one-fourth mile below the water intake. The width of the zone of critical concern is 1000 feet measured horizontally from each bank of the principal stream and 500 feet measured horizontally from each bank of the tributaries draining into the principal stream.

§16-1-3. Powers and duties of the Secretary.

(a) The secretary may establish a state public health system.

(b) As necessary for the effective, efficient, and economical operation of the system, the secretary may from time to time delegate, assign, transfer, or combine responsibilities or duties to or among employees of the department.

(c) Within the limits of applicable federal law, the secretary may require every applicant for a license, permit, certificate of registration, or registration under this chapter to place his or her social security number on the application.

(d) The secretary may appoint advisory councils.

(e) (1) The Secretary of the Department of Health is the chief executive officer of that department and beginning January 1, 2024, is charged with the administration of this chapter. The Governor shall appoint the secretary, by and with the advice and consent of the Senate, for the term for which the Governor is elected, and the secretary shall serve at the will and pleasure of the Governor. The Secretary shall be paid an annual salary not to exceed $175,000. Upon his or her initial appointment, which may be at any time after the effective date of this act, the Secretary shall take the oath of office described in this section and commence his or her duties. If appointed before January 1, 2024, the Secretary shall take the oath of office described in this section and commence such duties as determined by the Secretary to be necessary to prepare for the administration of this chapter.

(2) Before entering upon the duties of his or her office, the secretary shall take and subscribe to the oath of office prescribed by section five, article four of the state Constitution.

(3) The secretary shall not be a candidate for, or hold, any other public office or public employment under the federal government or under the government of this state or any of its political subdivisions, or be a member or officer of any political party committee, or serve as an election official, or engage in any political activity, other than to vote, in behalf of, or in opposition to, any candidate, political party or public issue involved in an election. Any violation by the secretary of the provisions of this section shall automatically vacate his or her appointment as secretary.

(4) In addition to the authority provided in §5F-2-2 of this code, the secretary shall:

(A) Coordinate efforts with the Secretary of Human Services and the Secretary of Health Facilities, including authority to share the expense of administrative services through a memorandum of understanding established by agreement of the secretaries as required under §5F-2-1a of this code;

(B) Establish a state public health system; and

(C) Cooperate with the Office of the Inspector General and take action on its findings;

(5) The secretary may:

(1) Within the limits of applicable federal law, the secretary may require every applicant for a license, permit, certificate of registration, or registration under this chapter to place his or her social security number on the application; and

(2) Appoint advisory councils.

(f) Any contract, agreement or memorandum of understanding between the secretary and West Virginia University, West Virginia School of Osteopathic Medicine or Marshall University for services is exempt from the provisions of §5A-3-1 et seq., of this code.

§16-1-4. Proposal of rules by the secretary.

(a) The secretary may propose legislative rules in accordance with the provisions of §29A-3-1 et seq. of this code that include:

(1) Land usage endangering the public health: Provided, That 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 150 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:

(A) Restrict the subdivision or development of a tract for any more intense or higher density occupancy than a single-family dwelling unit;

(B) Propose or enforce rules applicable to single-family dwelling units for single-family dwelling unit sanitary sewerage disposal systems; or

(C) Restrict any subdivision or development which might endanger the public health, the sanitary condition of streams, or sources of water supply;

(2) 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;

(3) 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;

(4) Safe drinking water, including:

(A) 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;

(B) 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

(C) 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;

(5) Food and drug standards, including cleanliness, proscription of additives, proscription of sale, and other requirements in accordance with §16-7-1 et seq. of this code as are necessary to protect the health of the citizens of this state;

(6) 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. Any regulation of emergency medical service attendants and emergency medical care technician- paramedics may not exceed the provisions of §16-4C-1 et seq. of this code;

(7) 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. 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. 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;

(8) 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 fees;

(9) The collection of data on health status, the health system, and the costs of health care;

(10) The distribution of state aid to local health departments and basic public health services funds in accordance with:

(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 health departments;

(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; and

(E) The provisions of this subdivision are in effect until the performance standard funding formula is created and established by legislative rule.

(b) The secretary shall not review any repair or modernization of equipment at a public pool facility as long as such activity does not change the scope of the facility or its current use and such activity does not exceed $25,000 in planned cost.

§16-1-5. State health officer; Commissioner of the Bureau for Public Health; appointment; qualifications; term.

The Commissioner of the Bureau for Public Health may be designated the state health officer. The commissioner and the state health officer shall be appointed by the secretary. The commissioner shall be a person holding a doctorate degree in public health administration unless designated the state health officer. The state health officer shall be licensed under the laws of this state to practice medicine. The commissioner and the state health officer serve at the will and pleasure of the secretary and shall not be actively engaged or employed in any other business, vocation, or employment, serving full-time in the duties of the office as prescribed by this article.

§16-1-6. Commissioner of the Bureau for Public Health; powers and duties.

(a) The commissioner is the chief executive, administrative and fiscal officer of the Bureau for Public Health and has the following powers and duties:

(1) To supervise and direct the fiscal and administrative matters of the bureau, and in that regard and in accordance with law, employ, fix the compensation of, and discharge all persons necessary for the proper execution of the public health laws of this state and the efficient and proper discharge of the duties imposed upon, and execution of powers vested in the commissioner by law and as directed by the secretary;

(2) To enforce all laws of this state concerning public health.

(3) To investigate the cause of disease, especially of epidemics and endemic conditions, and the means of prevention, suppression, or control of those conditions; the source of sickness and mortality, the effects of environment, employment, habits, and circumstances of life on the public health.

(4) To inspect and examine food, drink, and drugs offered for sale or public consumption in the manner the commissioner considers necessary to protect the public health and shall report all violations of laws and rules relating to the law to the prosecuting attorney of the county in which the violations occur;

(5) To make complaint or cause proceedings to be instituted against any person, corporation, or other entity for the violation of any public health law before any court or agency, without being required to give security for costs; the action may be taken without the sanction of the prosecuting attorney of the county in which the proceedings are instituted or to which the proceedings relate;

(6) To promote the provision of essential public health services to citizens of this state;

(7) To monitor the operation and coordination of the local boards of health and local health officers;

(8) To develop and maintain a state plan of operation that sets forth the needs of the state in the areas of public health; goals and objectives for meeting those needs; methods for achieving the stated goals and objectives; and needed personnel, funds, and authority for achieving the goals and objectives;

(9) To collect data as may be required to foster knowledge on the citizenry's health status, the health system, and costs of health care;

(10) To delegate to any appointee, assistant, or employee any and all powers and duties vested in the commissioner, including, but not limited to, the power to execute contracts and agreements in the name of the bureau: Provided, That the commissioner is responsible for the acts of his or her appointees, assistants, and employees;

(11) To transfer any patient or resident between hospitals and facilities and, by agreement with the state Commissioner of Corrections and Rehabilitation and otherwise in accord with law, accept a transfer of a resident of a facility under the jurisdiction of the state Commissioner of Corrections and Rehabilitation;

(12) To make periodic reports to the Governor and to the Legislature relative to specific subject areas of public health, or other matters affecting the public health of the people of the state;

(13) To accept and use for the benefit of the health of the people of this state, any gift or devise of any property or thing which is lawfully given: Provided, That if any gift is for a specific purpose shall be used as specified. Any profit which may arise from any gift or devise of any property or thing shall be deposited in a special revenue fund with the State Treasurer and shall be used only as specified by the donor or donors;

(14) To inspect and enforce rules to control the sanitary conditions of and license all institutions and health facilities as set forth in this chapter, including, but not limited to, schools, whether public or private, public conveyances, dairies, slaughterhouses, workshops, factories, labor camps, places of entertainment, hotels, motels, tourist 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;

(15) To make inspections, conduct hearings, and to enforce the legislative rules concerning occupational and industrial health hazards, the sanitary condition of streams, sources of water supply, sewerage facilities, and plumbing systems, and the qualifications of personnel connected with the supplies, facilities or systems without regard to whether they are publicly or privately owned; and to make inspections, conduct hearings and enforce the legislative rules concerning the design of chlorination and filtration facilities and swimming pools;

(16) To provide in accordance with this subdivision for a program for the care, treatment, and rehabilitation of the parents of sudden infant death syndrome victims; for the training and employment of personnel to provide the requisite rehabilitation of parents of sudden infant death syndrome victims; for the education of the public concerning sudden infant death syndrome; for the education of police, employees, and volunteers of all emergency services concerning sudden infant death syndrome; and for requesting appropriation of funds in both federal and state budgets to fund the sudden infant death syndrome program;

(17) To establish and maintain a state hygienic laboratory as an aid in performing the duties imposed upon the commissioner, and to employ employees that may be necessary to properly operate the laboratory. The commissioner may establish branches of the state laboratory within the state that are necessary in the interest of the public health;

(18) To expend, for the purpose of performing the public health duties imposed on the bureau, or authorized by law, any sums appropriated by the Legislature. The commissioner may make advance payments to public and nonprofit health services providers when the commissioner determines it is necessary for the initiation or continuation of public health services. The advance payments, being in derogation of the principle of payment only after receipt of goods or services, shall be authorized only after serious consideration by the commissioner of the necessity of the advance payments and shall be for a period no greater than 90 days in advance of rendition of service or receipt of goods and continuation of health services; and

(19) To exercise all other powers delegated to the commissioner by the secretary or by this chapter or otherwise in this code, to enforce all health laws, and to pursue all other activities necessary and incident to the authority and area of concern entrusted to the bureau or the commissioner.

(b) The commissioner shall establish within the Bureau for Public Health, a Center for Local Public Health. The center shall:

(1) Enhance the quality and availability of essential public health services throughout the state provided by local boards of health;

(2) Provide technical assistance and consultation to a local board of health agency;

(3) Allocate and distribute funding based upon performance based standards;

(4) Provide technical assistance to the local public health workforce;

(5) Facilitate bi-directional communication;

(6) Establish a uniform state-wide computer system for the reporting of public health data;

(7) Inventory the services provided by a local boards of health;

(8) Support sharing of services between local boards of health;

(9) Create a performance-based evaluation system based on standards established by legislative rule;

(10) Provide a quarterly training to ensure consistency in the application of state laws, legislative rules, and local health department rules; and

(11) Enforce compliance with performance standards.

§16-1-7. Commissioner serving on advisory boards.

(a) The commissioner serves on the following advisory councils, boards, and commissions:

(1) The Advisory Committee on Cancer (Cancer Registry);

(2) The Air Quality Board;

(3) The Appalachian States Low-level Radioactive Waste Commission;

(4) The Child Fatality Review Team;

(5) The Childhood Immunization Advisory Committee;

(6) The Early Intervention Coordinating Council;

(7) The Interagency Council on Osteoporosis;

(8) The Sewage Advisory Board;

(9) The State Emergency Response Commission;

(10) The State Groundwater Coordinating Committee;

(11) The Water Development Authority;

(12) The West Virginia Commission for the Deaf and Hard of Hearing;

(13) The West Virginia Infrastructure and Jobs Development Council; and

(14) Any other advisory council, board, or commission as assigned by the secretary except for business, professional, or occupational licensing boards.

(b) The commissioner may, designate in writing a representative to serve in his or her stead at the meetings and in the duties of all boards and commissions on which the commissioner is designated as an ex officio member. The appropriately designated representative acts with the full authority of the commissioner in voting, and other business that is properly the duty of any board or commission. The representative serves at the commissioner’s will and pleasure.

§16-1-8. Inclusion of Alzheimer's disease in existing public health programs.

(a) The Commissioner of the Bureau for Public Health, in partnership with the Bureau for Medical Services and the Alzheimer's Association, shall, in its existing public health programs and services, educate health care professionals on the importance of early detection and timely diagnosis of cognitive impairment and dementia, use of validated cognitive assessment tools in the delivery of the Medicare Annual Wellness Visit, provision of effective care planning and care management at all stages of dementia, and delivery of counseling and referral.

(b) The Bureau for Public Health, in partnership with the Bureau of Senior Services, shall, in its existing, relevant public health outreach programs, incorporate information to increase understanding and awareness of Alzheimer's disease and other dementias, including information about the early signs of Alzheimer's disease and other dementias that should be discussed with health care professionals and the value of early detection and diagnosis, particularly among persons in diverse communities who are at greater risk of developing dementia.

(c) Any public awareness and/or educational outreach programs shall provide uniform, consistent guidance in nonclinical terms, with an emphasis on cultural relevancy and health literacy.

§16-1-9. Duties and powers of the commissioner; supervision over local sanitation; violations; jurisdiction; penalties.

No person, firm, company, corporation, institution or association, whether public or private, county or municipal, may install or establish any system or method of drainage, water supply, or sewage or excreta disposal without first obtaining a written permit to install or establish the system or method from the commissioner or his or her authorized representative. All systems or methods shall be installed or established in accordance with plans, specifications and instructions issued by the commissioner or which have been approved in writing by the commissioner or his or her authorized representative.

Whenever the commissioner or his or her authorized representative finds, upon investigation, that any system or method of drainage, water supply, or sewage or excreta disposal, whether publicly or privately owned, has not been installed in accordance with plans, specifications and instructions issued by the commissioner or approved in writing by the commissioner or his or her authorized representative, the commissioner or his or her authorized representative shall issue an order requiring the owner of the system or method to make alterations necessary to correct the improper condition. The alterations shall be made within a reasonable time, which shall not exceed 30 days, unless a time extension is authorized by the commissioner or his or her authorized representative.

The commissioner or his or her designee may determine, upon conducting a risk assessment, that any water supply system must be equipped with a backflow prevention assembly to protect the health and sanitation of water, whether publicly or privately owned: Provided, That water supply systems shall not require a backflow prevention assembly unless any of the following are met:

(i) it cross-connects with a sprinkler or fire suppression system;

(ii) it cross-connects with an active auxiliary water source or water well;

(iii) it cross-connects with any fluid storage tank, tub, pool or cistern 85 gallons or larger with a public water inlet that can be below the water level;

(iv) it cross-connects with a boiler system;

(v) it cross-connects with any land irrigation system; or

(vi) the property serviced by the public water supply is a funeral home or mortuary, restaurant, dry cleaner, medical facility, beauty and nail salon, car wash, multi-tenant retail space, commercial building three stories or taller, or commercial space with a dedicated fire service line/sprinkler system, industrial facility, salvage and/or wastewater facility, food processing facility, recycling facility where cross-connected to the public water supply, correctional facility, or any other customer using chemicals harmful to human health that are cross-connected to the public water supply.

Prior to requiring installation of a backflow prevention assembly to a water supply system, a risk assessment is required and may be performed based upon the known type of water activity and usage involving the use of the public water supply, by written responses to a written questionnaire presented by the commissioner or his or her designee to the owner or occupier of the water use facility, building or dwelling, or by personal inspection made by the commissioner or his or her designee if the owner or occupier of the premises allows entrance.

Provided however, That any customer deemed required to install a backflow prevention assembly may appeal the determination and seek a waiver by the water utility, and if not satisfied, may appeal further to the Public Service Commission pursuant to §24-1-1 et seq., §24-2-1 et seq. and §29A-1-1 et seq. of this code: And provided further, That the customer shall have the freedom to choose the brand of any required backflow prevention assembly that otherwise meets the required specifications of the commissioner or his or her designee.

The presence of sewage or excreta being disposed of in a manner not approved by the commissioner or his or her authorized representative constitutes prima facie evidence of the existence of a condition endangering public health.

The personnel of the Bureau for Public Health shall be available to consult and advise with any person, firm, company, corporation, institution or association, whether publicly or privately owned, county or municipal, or public service authority, as to the most appropriate design, method of operation or alteration of any system or method.

Any person, firm, company, corporation, institution or association, whether public or private, county or municipal, violating any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $50 nor more than $500. Any continuing failure or refusal of the convicted person, firm, company, corporation, institution or association, whether public or private, county or municipal, to make the alterations necessary to protect the public health required by the commissioner or his or her authorized representative is a separate, distinct and additional offense for each 24 hour period of failure or refusal, and, upon conviction thereof, the violator shall be fined not less than $50 nor more than $500 for each conviction: Provided, That none of the provisions contained in this section apply to those commercial or industrial wastes that are subject to the regulatory control of the West Virginia Department of Environmental Protection.

Magistrates have concurrent jurisdiction with the circuit courts of this state for violations of any provisions of this section.

§16-1-9a. Regulation of public water systems.

(a) The commissioner shall regulate public water systems as prescribed in this section.

(b) The commissioner shall establish by legislative rule, in accordance with §29A-3-1 et seq. of this code:

(1) The maximum contaminant levels to which all public water systems shall conform in order to prevent adverse effects on the health of individuals;

(2) Treatment techniques that reduce the contaminant or contaminants to a level which will not adversely affect the health of the consumer;

(3) 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;

(4) Minimum requirements for:

(A) Sampling and testing;

(B) System operation;

(C) 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 regulations promulgated under this section;

(D) Recordkeeping;

(E) Laboratory certification; and

(F) Procedures and conditions for granting variances and exemptions to public water systems from state public water systems’ regulations;

(5) Requirements covering the production and distribution of bottled drinking water;

(6) Requirements governing the taste, odor, appearance, and other consumer acceptability parameters of drinking water;

(7) Any requirements for a water supply system the commissioner determines is necessary to be equipped with a backflow prevention assembly, all maintenance activities must be documented and provided to the commissioner upon request; and

(8) Any other requirement the commissioner finds necessary to effectuate the provisions of this article.

(c) The commissioner, or his or her authorized representative or designee, may enter any part of a public water system, whether or not the system is in violation of a legal requirement, for the purpose of inspecting, sampling, or testing and shall be furnished records or information reasonably required for a complete inspection.

(d) The commissioner, or his or her authorized representative or designee, may conduct an evaluation necessary to assure the public water system meets federal safe drinking water requirements. The public water system shall provide a written response to the commissioner within 30 days of receipt of the evaluation by the public water system, addressing corrective actions to be taken as a result of the evaluation.

(e)(1) Any individual or entity who violates any provision of this article, or any of the rules or orders issued pursuant to this article, is liable for a civil penalty not less than $1,000 nor more than $5,000. Each day’s violation shall constitute a separate offense.

(2) For a willful violation of a provision of this article, or of any of the rules or orders issued under this article, an individual or entity shall be subject to a civil penalty of not more than $10,000 and each day’s violation shall be grounds for a separate penalty.

(3) Civil penalties are payable to the commissioner. All moneys collected under this section shall be deposited into a restricted account known as the Safe Drinking Water Fund. All moneys deposited into the fund shall be used by the commissioner to provide technical assistance to public water systems.

(f) The commissioner, or his or her authorized representative or designee, may also seek injunctive relief in the circuit court of the county in which all or part of the public water system is located for threatened or continuing violations.

(g) By July 1, 2020, a public water system supplying water to the public within the state shall immediately, but in no instance later than six hours, report the occurrence and the lifting of each advisory to local departments of health and to local office of emergency management 911 answering point.

(h) By January 1, 2022, a public water system shall make available to interested customers boiled water advisories promptly through a text or a voice alert mass notification system.

§16-1-9b. Permit approval for individual systems with surface water discharge; reserve areas.

Individual systems with surface water discharge may be considered for approval for a permit pursuant to section nine of this article under the following conditions: (1) To correct existing failures when other means of treatment and disposal have proven ineffective; (2) on a tract, lot or parcel of land that equals or exceeds two acres which cannot qualify for standard or alternative soil absorption systems; or (3) on existing lots which received approval under a prior permit where it has been determined that applicable standards cannot be met to qualify for a standard or alternate soil absorption system. Approval under these conditions are applicable only to single family residential units.

When installing a standard sewage disposal system, modified system, experimental system or other approved system, the reserve area shall consist of an area for the placement of the original system together with an area for replacement and upgrade of absorption field lines within the reserve area. Testing of the site for approval shall consist of a six foot hole and a percolation test of the soils.

§16-1-9c. Required update or completion of source water protection plans.

(a) An existing public water utility that draws and treats water from a surface water supply source or a surface water influenced groundwater supply source shall submit to the commissioner an updated or completed source water protection plan for each of its public water system plants with such intakes to protect its public water supplies from contamination. Every effort shall be made to inform and engage the public, local governments, local emergency planners, local health departments, and affected residents at all levels of the development of the protection plan.

(b) The completed or updated plan for each affected plant, at a minimum, shall include the following:

(1) A contingency plan that documents each public water utility’s planned response to contamination of its public surface water supply source or its public surface water influenced groundwater supply source;

(2) An examination and analysis of the public water system’s ability to isolate or divert contaminated waters from its surface water intake or groundwater supply and the amount of raw water storage capacity for the public water system’s plant;

(3) An examination and analysis of the public water system’s existing ability to switch to an alternative water source or intake in the event of contamination of its primary water source;

(4) An analysis and examination of the public water system’s existing ability to close its water intake in the event the system is advised that its primary water source has become contaminated due to a spill or release into a stream and the duration of time it can keep that water intake closed without creating a public health emergency;

(5) The following operational information for each plant receiving water supplies from a surface water source:

(A) The average number of hours the plant operates each day, and the maximum and minimum number of hours of operation in one day at that plant during the past year; and

(B) The average quantities of water treated and produced by the plant per day, and the maximum and minimum quantities of water treated and produced at that plant in one day during the past year;

(6) An analysis and examination of the public water system’s existing available storage capacity on its system, how its available storage capacity compares to the public water system’s normal daily usage and whether the public water system’s existing available storage capacity can be effectively utilized to minimize the threat of contamination to its system;

(7) The calculated level of unaccounted for water experienced by the public water system for each surface water intake, determined by comparing the measured quantities of water which are actually received and used by customers served by that water plant to the total quantities of water treated at the water plant over the past year. If the calculated ratio of those two figures is less than 85 percent, the public water system is to describe all of the measures it is actively taking to reduce the level of water loss experienced on its system;

(8) A list of the potential sources of significant contamination contained within the zone of critical concern as provided by the Department of Environmental Protection, the Bureau for Public Health and the Division of Homeland Security and Emergency Management. The exact location of the contaminants within the zone of critical concern is not subject to public disclosure in response to a Freedom of Information Act request under §29B-1-1 et seq. of this code.  However, the location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern shall be made known to one or more designees of the public water utility, and shall be maintained in a confidential manner by the public water utility. Disclosure is permitted on any location, characteristics and approximate quantities of potential sources of significant contamination within the zone of critical concern to the extent they are in the public domain through a state or federal agency.  In the event of a chemical spill, release or related emergency, information pertaining to any spill or release of contaminant shall be immediately disseminated to any emergency responders responding to the site of a spill or release, and the general public shall be promptly notified in the event of a chemical spill, release or related emergency;

(9) If the public water utility’s water supply plant is served by a single-source intake to a surface water source of supply or a surface water influenced source of supply, the submitted plan shall also include an examination and analysis of the technical and economic feasibility of each of the following options to provide continued safe and reliable public water service in the event its primary source of supply is detrimentally affected by contamination, release, spill event or other reason:

(A) Constructing or establishing a secondary or backup intake which would draw water supplies from a substantially different location or water source;

(B) Constructing additional raw water storage capacity or treated water storage capacity or both, to provide at least two days of system storage, based on the plant’s maximum level of production experienced within the past year;

(C) Creating or constructing interconnections between the public water system with other plants on the public water utility system or another public water system, to allow the public water utility to receive its water from a different source of supply during a period its primary water supply becomes unavailable or unreliable due to contamination, release, spill event or other circumstance;

(D) Any other alternative which is available to the public water utility to secure safe and reliable alternative supplies during a period its primary source of supply is unavailable or negatively impacted for an extended period; and

(E) If one or more alternatives set forth in paragraphs (A) through (D), inclusive, of this subdivision is determined to be technologically or economically feasible, the public water utility shall submit an analysis of the comparative costs, risks and benefits of implementing each of the described alternatives;

(10) A management plan that identifies specific activities that will be pursued by the public water utility, in cooperation and in concert with the Bureau for Public Health, local health departments, local emergency responders, local emergency planning committee, and other state, county, or local agencies and organizations to protect its source water supply from contamination, including, but not limited to, notification to and coordination with state and local government agencies whenever the use of its water supply is inadvisable or impaired, to conduct periodic surveys of the system, the adoption of best management practices, the purchase of property or development rights, conducting public education or the adoption of other management techniques recommended by the commissioner or included in the source water protection plan;

(11) A communications plan that documents the manner in which the public water utility, working in concert with state and local emergency response agencies, shall notify the local health agencies and the public of the initial spill or contamination event and provide updated information related to any contamination or impairment of the source water supply or the system’s drinking water supply, with an initial notification to the public to occur, in any event, no later than 30 minutes after the public water system becomes aware of the spill, release or potential contamination of the public water system;

(12) A complete and comprehensive list of the potential sources of significant contamination contained within the zone of critical concern, based upon information which is directly provided or can otherwise be requested and obtained from the Department of Environmental Protection, the Bureau for Public Health, the Division of Homeland Security, and Emergency Management and other resources; and

(13) An examination of the technical and economic feasibility of implementing an early warning monitoring system.

(c) A public water utility’s public water system with a primary surface water source of supply or a surface water influenced groundwater source of supply shall submit, prior to the commencement of its operations, a source water protection plan satisfying the requirements of subsection (b) of this section.

(d) The commissioner shall review a plan submitted pursuant to this section and provide a copy to the Secretary of the Department of Environmental Protection. Thereafter, within 180 days of receiving a plan for approval, the commissioner may approve, reject, or modify the plan as may be necessary and reasonable to satisfy the purposes of this article. The commissioner shall consult with the local public health officer and conduct at least one public hearing when reviewing the plan. Failure by a public water system to comply with a plan approved pursuant to this section is a violation of this article.

(e) The commissioner may request a public water utility to conduct one or more studies to determine the actual risk and consequences related to any potential source of significant contamination identified by the plan, or as otherwise made known to the commissioner.

(f) Any public water utility required to file a complete or updated plan in accordance with the provisions of this section shall submit an updated source water protection plan at least every three years or when there is a substantial change in the potential sources of significant contamination within the identified zone of critical concern.

(g) The commissioner’s authority in reviewing and monitoring compliance with a source water protection plan may be transferred by the bureau to a nationally accredited local board of public health.

(h) The secretary is authorized to propose legislative rules for promulgation pursuant to §29A-3-1 et seq. of this code to implement the provisions of this section. The rules shall include a staggered schedule by hydrologic regions for the submission of source water protection plans by public water utilities. The first report submitted pursuant to a staggered schedule is exempt from the reporting interval set forth in §16-1-9c(f) of this code. Subsequent reports shall be submitted pursuant to the provisions of §16-1-9c(f) of this code.

§16-1-9d. Wellhead and Source Water Protection Grant Program.

(a) The commissioner shall continue the Wellhead and Source Water Protection Grant Program.

(b) The fund heretofore created to provide funds for the Wellhead and Source Water Protection Grant Program is continued in the State Treasury and shall be known as the Wellhead and Source Water Protection Grant Fund. The fund shall be administered by the commissioner and shall consist of all moneys made available for the program from any source, including, but not limited to, all fees, civil penalties and assessed costs, all gifts, grants, bequests or transfers from any source, any moneys that may be appropriated and designated for the program by the Legislature and all interest or other return earned from investment of the fund. Expenditures from the fund shall be for the purposes set forth in this article to provide water source protection pursuant to the program and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal years ending June 30, 2014, and 2015, expenditures are authorized from collections rather than pursuant to an explicit appropriation by the Legislature. Any balance, including accrued interest and other returns, remaining in the fund at the end of each fiscal year shall not revert to the General Revenue Fund but shall remain in the fund and be expended as provided by this section.

(c) In prospectively awarding any grants under the Wellhead and Source Water Protection Grant Program, the commissioner shall prioritize those public water systems where there is the highest probability of contamination of the water source based on the source water assessment report or the source water protection plans which were previously performed. Priority shall also be extended to publicly owned public water systems over privately owned public water systems.

(d) The commissioner, or his or her designee, shall apply for and diligently pursue all available federal funds to help offset the cost of completing source water protection plans by the deadlines established in section nine-c of this article.

(e) The commissioner may receive any gift, federal grant, other grant, donation or bequest and receive income and other funds or appropriations to contribute to the Wellhead and Source Water Protection Grant Program.

§16-1-9e. Long-term medical study.

The Bureau for Public Health shall endeavor to engage the Centers for Disease Control and other federal agencies for the purpose of creating, organizing and implementing a medical study to assess any long-term health effects resulting from the chemical spill that occurred on January 9, 2014, and which exposed the public to chemicals, including 4-methylcyclohexane.

The commissioner shall conduct such study pursuant to the authority granted to the commissioner pursuant to section six of this article: Provided, That in the event the commissioner determines that, in order to adequately perform such study, additional authority is required, the commissioner shall provide a report of such additional authority requested to the Governor and the Joint Committee on Government and Finance.

The commissioner shall cause to be collected and preserved information from health providers who treated patients presenting with symptoms diagnosed as having been caused or exacerbated as a result of exposure related to the January 9, 2014, chemical spill. The commissioner shall analyze such data and other information deemed relevant by the commissioner and provide a report of the commissioner's findings regarding potential long-term health effects of the January 9, 2014, chemical spill to the Joint Committee on Health by January 1, 2015, including the results of its efforts to engage federal cooperation and assistance for a long-term comprehensive study on the costs of conducting such study on behalf of the state.

§16-1-9f. Inventory of potential sources of significant contamination.

(a) The secretary, working in collaboration with the Department of Environmental Protection and the Division of Homeland Security and Emergency Management, shall compile an inventory of all potential sources of significant contamination contained within a public water system's zone of critical concern and identify those that are not currently permitted or subject to regulation by the Secretary of the Department of Environmental Protection under one or more articles of chapter twenty-two of this code. In compiling the inventory, the secretary shall use information provided in the registrations submitted pursuant to section four, article thirty, chapter twenty-two of this code, information provided to the Division of Homeland Security and Emergency Management pursuant to section 312 of the federal Emergency Planning and Community Right-to-Know Act, and other information available to the agency.

(b) The department shall provide a copy of the compiled list of known potential sources of significant contamination in each zone of critical concern to the Department of Environmental Protection and the Division of Homeland Security and Emergency Management.

§16-1-10. Disposition of permit, license, or registration fees received by the commissioner; report to Auditor; health facility licensing account.

(a) The commissioner shall receive and account for all moneys required to be paid as fees to the bureau for permits, licenses, or registrations, pursuant to the provisions of this code and legislative rules.

(b) Subject to the provisions set forth in §12-2-2 of this code, there is continued in the State Treasury a separate account which shall be designated “the Health Facility Licensing Account.” The commissioner shall deposit to the Health Facility Licensing Account all health facility licensing fees and may spend the moneys deposited in the health facility licensing account in accordance with the laws of this state to implement activities of health facility licensing. As part of the annual state budget, the Legislature shall appropriate for health facility licensure all moneys deposited in the Health Facility Licensing Account.

Any remaining balance including accrued interest in the account at the end of any fiscal year shall not revert to the General Revenue Fund, but shall remain in the account, and the moneys may be spent after appropriation by the Legislature in ensuing fiscal years.

§16-1-11. Disposition of fees for services charged and received by the commissioner; health services fund.

(a) The commissioner may assess and charge reasonable fees for the provision of services provided by the bureau: Provided, That no individual may be denied health care services by the bureau because of the inability of the individual to pay for services. The fees shall be deposited into a special revolving fund in the State Treasury designated the “Health Services Fund.”

(b) Any balance including accrued interest in the special revolving fund at the end of any fiscal year shall not revert to the General Revenue Fund but shall remain in the fund for use by the commissioner for funding health programs in the ensuing fiscal years.

§16-1-12. Receipt and disbursement of federal aid and other moneys for health purposes.

(a) The commissioner may accept, receive, and receipt for federal moneys and other moneys, either public or private, for and on behalf of this state or any county or municipality of this state, for public health purposes, or for the establishment or construction of public health facilities, whether the work is to be done by the state, or by the county or municipality, or jointly, aided by grants of aid from the United States, upon such terms and conditions as are, or may be, prescribed by the laws of the United States and regulations made thereunder. The commissioner may act as the agent of the state or any of its agencies, or of any county or municipality of this state, upon the request of any agency of the state or of any county or municipality, in accepting, receiving and receipting for the moneys in its behalf, for public health facilities financed either, in whole or in part, by federal moneys.

(b) The state, any agency of the state, or any county or municipality may, designate the commissioner as its agent for the purposes set forth in subsection (a) of this section and the agency, county, or municipality may enter into an agreement with the commissioner prescribing the terms and conditions of the agency in accordance with federal laws and regulations, and with the laws of this state. The moneys paid over by the United States government shall be retained by the state or paid over to the counties or municipalities under the terms and conditions imposed by the United States government in making the grants.

(c) All moneys accepted for disbursement pursuant to this section shall be deposited by the commissioner in the State Treasury, and unless otherwise prescribed by the authority from which the money is received, kept in separate funds, designated according to the purpose for which the moneys were made available, and held by the state in trust for those purposes. All moneys are hereby appropriated for the purposes for which the moneys were made available and shall be expended in accordance with federal laws and regulations and with the laws of this state. The commissioner may, whether acting for the state or one of its agencies, or as the agency for any county or municipality, when requested by the United States government or any agency or department of the United States government, or when requested by the state, a state agency, or any county or municipality for which the moneys have been made available, disburse the moneys for the designated purposes, but this shall not include any other authorized method of disbursement.

§16-1-13. Hospital services revenue account.

(a) Subject to the provisions set forth in §12-2-2 of this code, there is continued in the State Treasury a separate account which shall be designated the “hospital services revenue account.” The secretary shall deposit promptly into the account any fees received by a facility owned and operated by the department from whatever source including the federal government, state government, or other third-party payer or personal payment.

(b) The secretary may spend the moneys deposited in the hospital services revenue account in accordance with federal laws and regulations and with the laws of this state. The secretary may spend the moneys deposited in the hospital services revenue account in the amounts the secretary determines necessary for the purpose of improving the delivery of health and mental health services or for the purpose of maintaining or obtaining certification at a state health or mental health facility: Provided, That all disproportionate share hospital funds received into the account shall be transferred by intergovernmental transfer to the medical services trust fund created in §9-4A-2a of this code, except for funds appropriated by the Legislature for other purposes within the annual budget bill: Provided, however, That during any fiscal year in which the secretary anticipates spending any money from the account, he or she shall submit to the executive department during the budget preparation period prior to the Legislature convening, before that fiscal year for inclusion in the executive budget document and budget bill, his or her recommended capital investments, recommended priorities and estimated costs, as well as requests of appropriations for the purpose of improving the delivery of health and mental health services or for the purpose of maintaining or obtaining certification at a state health facility in the amounts the secretary determines to be necessary.

(c) The secretary shall make an annual report to the Legislature on the status of the health services revenue account, including the previous year’s expenditures and projected expenditures for the next year.

§16-5P-15.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§16-1-14. Training of employees.

The commissioner may provide technical and specialized instruction for employees of the bureau.

The commissioner may pay out of federal funds and such state funds as are available to match such federal funds, any required tuition or enrollment fees.

§16-1-15. Investigations and hearings; power to administer oaths, subpoena witnesses, etc.; use of information and material acquired.

(a) The secretary, the commissioner, any officer or employee of the department designated by the secretary, or any other individual designated by the secretary may hold investigations, inquiries and hearings concerning matters covered by the laws of this state pertaining to public health and within the authority and the rules and orders of the secretary. Hearings shall be open to the public and shall be held upon any call or notice considered advisable by the secretary.

(b) Each individual designated to hold any inquiry, investigation or hearing may administer oaths and affirmations, certify to all official acts, issue subpoenas and order the attendance and testimony of witnesses in the production of papers, books and documents. In case of the failure of any person to comply with any subpoena or order issued under the authority of this section, the secretary or his or her authorized representative may invoke the aid of any circuit court of this state. The court may thereupon order that person to comply with the requirements of the subpoena order or to give evidence as to the matter in question. Failure to obey the order of the court may be punished by the court as a contempt of court.

(c) Subject to the provisions of subsections (a) and (b) of this section, the secretary may in his or her discretion make available to appropriate federal, state and municipal agencies information and material developed in the course of its investigation and hearings: Provided, That information obtained from studies or from any investigation made or hearing held pursuant to the provisions of this article may not be admissible in evidence in any action at law to recover damages for personal injury or in any action under the workers' compensation act, but the information, if available, shall be furnished upon request to the executive director of the workers' compensation commission for the sole purpose of adjusting claims presented to the commission.

§16-1-16.

Repealed.

Acts, 2012 Reg. Sess., Ch. 118.

§16-1-17. Penalties for interfering with examiners, inspectors or other authorized representatives of the commissioner in the performance of duty.

The commissioner may employ such administrative employees, inspectors, examiners or other persons as may be necessary to properly carry out the provisions of the public health laws of this state. The inspectors, examiners and other employees shall act as the commission's representatives and, under his or her direction, shall enforce the provisions of the public health laws and all duly promulgated public health rules and in the discharge of official duties, shall have the right of entry into any institution or school, whether public or private, public conveyances, dairy, creamery, slaughterhouse, workshop, factory, labor camp, place of entertainment, hotel, tourist camp, 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 hazardous trades or industries are conducted.

Any person interfering with or attempting to interfere with any inspector, examiner, or other duly authorized employee of the commissioner in the discharge of his or her duties under this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500.

§16-1-18. Penalties for violating provisions of article.

Any person violating any of the provisions of this article for which the penalty is not otherwise provided, or any of the rules or orders issued pursuant to this article, shall be punishable by a fine of not less than $50 nor more than $500.

§16-1-19. Child's right to nurse; location where permitted; right protected.

(a) The Legislature finds that breast feeding is an important, basic act of nurturing that is protected in the interests of maternal and child health.

(b) Notwithstanding any provision of this code to the contrary, a mother may breast feed a child in any location open to the public.

§16-1A-1. Legislative findings; purpose.

(a) The Legislature finds:

(1) Credentialing, required by hospitals, insurance companies, prepaid health plans, third party administrators, provider networks and other health care entities, is necessary to assess and verify the education, training and experience of health care practitioners to ensure that qualified professionals treat the citizens of this state.

(2) Although uniform credentialing and recredentialing application forms have been created to reduce duplication and increase efficiency, each credentialing entity continues to perform primary source verification for the practitioners who apply to that entity for affiliation. Moreover, because credentialing entities do not follow a common calendar, practitioners are required to respond to requests throughout the year from various credentialing entities seeking essentially similar information. This duplication of primary source verification is time consuming and costly.

(3) The Secretary of the Department of Human Services and the Insurance Commissioner share regulatory authority over the entities requiring credentialing.

(b) The purpose of this article is to continue the advisory committee previously established to assist in developing a uniform credentialing process through the development of legislative rules to govern how a single credentialing verification organization will operate in this state and, except with respect to health care facilities, the establishment of a common credentialing calendar.

§16-1A-2. Development of uniform credentialing application forms and the credentialing process.

Notwithstanding any provision of this code to the contrary, the Secretary of the Department of Human Services and the Insurance Commissioner shall jointly propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the development and use of uniform application forms for credentialing, recredentialing or updating information of health care practitioners required to use the forms and the improvement of the credentialing process, including creation of a credentialing verification organization and a uniform recredentialing calendar.

§16-1A-3. Definitions.

For the purposes of this article, the following definitions apply:

(a) "Credentialing" means the process used to assess and validate the qualifications of a health care practitioner, including, but not limited to, an evaluation of licensure status, education, training, experience, competence and professional judgment.

(b) "Credentialing entity" means any health care facility, as that term is defined in subsection (j), section two, article two-d of this chapter, or payor or network that requires credentialing of health care practitioners.

(c) "Credentialing Verification Organization" means an entity that performs primary source verification of a health care practitioner's training, education, experience; "statewide credentialing verification organization" means the credentialing verification organization selected pursuant to the provisions of section five of this article.

(d) "Health care practitioner" or "practitioner" means a person required to be credentialed using the uniform forms set forth in the rule promulgated pursuant to the authority granted in section two, article one-a of this chapter.

(e) "Insurance Commissioner" or "Commissioner" means the Insurance Commissioner of the State of West Virginia as set forth in article two, chapter thirty-three of this code.

(f) "Joint Commission" formerly known as the Joint Commission on Accreditation of Healthcare Organizations or JCAHO, is a private sector, United States-based, not-for-profit organization that operates voluntary accreditation programs for hospitals and other health care organizations.

(g) "National Committee for Quality Assurance" or "NCQA" is a private, 501(c)(3) not-for-profit organization that evaluates and certifies credentialing verification organizations.

(h) "Network" means an organization that represents or contracts with a defined set of health care practitioners under contract to provide health care services to a payor's enrollees.

(i) "Payor" means a third party administrator as defined in section two, article forty-six , chapter thirty-three of this code and including third party administrators that are required to be registered pursuant to section thirteen, article forty-six, chapter thirty-three of this code, any insurance company, health maintenance organization, health care corporation or any other entity required to be licensed under chapter thirty-three of this code and that, in return for premiums paid by or on behalf of enrollees, indemnifies such enrollees or reimburses health care practitioners for medical or other services provided to enrollees by health care practitioners.

(j) "Primary source verification procedure" means the procedure used by a credentialing verification organization to, in accordance with national committee for quality assurance standards, collect, verify and maintain the accuracy of documents and other credentialing information submitted in connection with a health care practitioner's application to be credentialed.

(k) "Secretary" means the Secretary of the Department of Human Services.

(l) "Uniform application form" or "uniform form" means the blank uniform credentialing or recredentialing form developed and set forth in a joint procedural rule promulgated pursuant to section two of this article.

§16-1A-4. Advisory committee.

(a) The secretary and the Insurance Commissioner shall jointly establish an advisory committee to assist them in the development and implementation of the uniform credentialing process in this state. The advisory committee shall consist of fourteen appointed members. Six members shall be appointed by the secretary: One member shall represent a hospital with one hundred beds or less; one member shall represent a hospital with more than one hundred beds; one member shall represent another type of health care facility requiring credentialing; one member shall be a person currently credentialing on behalf of health care practitioners; and two of the members shall represent the health care practitioners subject to credentialing. Five members shall be representative of the entities regulated by the Insurance Commissioner that require credentialing and shall be appointed by the Insurance Commissioner: One member shall represent an indemnity health care insurer; one member shall represent a preferred provider organization; one member shall represent a third party administrator; one member shall represent a health maintenance organization accredited by URAC; and one member shall represent a health maintenance organization accredited by the national committee on quality assurance. The secretary and the Insurance Commissioner, or the designee of either or both, shall be nonvoting ex officio members. Upon the effective date of this legislation, the state hospital association, the state association of licensing boards and state medical association shall each designate to the department one person to represent their respective associations and members and those designees shall be appointed to the advisory committee by the secretary.

(b) At the expiration of the initial terms, successors will be appointed to terms of three years. Members may serve an unlimited number of terms. When a vacancy occurs as a result of the expiration of a term or otherwise, a successor of like qualifications shall be appointed. Representatives of the hospital association, the association of licensing boards and the state medical association shall serve for three-year terms.

(c) The advisory committee shall meet at least annually to review the status of uniform credentialing in this state, and may make further recommendations to the secretary and the Insurance Commissioner as are necessary to carry out the purposes of this article. Any uniform forms and the list of health care practitioners required to use the uniform forms as set forth in legislative rule proposed pursuant to section two of this article may be amended as needed by procedural rule.

§16-1A-5. Credentialing Verification Organization.

The Secretary and the Insurance Commissioner shall, with the advice of the advisory committee, take such steps as are necessary to select and contract with a credentialing verification organization that will, beginning no later than July 1, 2015, be the sole source for primary source verification for all credentialing entities. The credentialing verification organization selected shall be responsible for the receipt of all uniform applications, the primary source verification of the information provided on such applications, and the updating and maintenance of all information generated by such activities. The dates on which the use of this statewide credentialing verification organization is mandatory with respect to the credentialing of the different classes of health care practitioners shall be determined by emergency and legislative rules promulgated pursuant to the authority in section ten of this article.

§16-1A-6. Contract with statewide credentialing verification organization; requirements.

The Secretary and Insurance Commissioner shall assure that:

(1) Any contract executed with a credentialing verification organization shall be for an initial contract period of at least three years, subject to renewals, and the Secretary and Insurance Commissioner shall, in consultation with the advisory committee, periodically review the statewide credentialing verification organization's operations no less often than prior to every renewal.

(2) A credentialing verification organization selected pursuant to this article must, at a minimum, be certified by the national committee for quality assurance, be able to demonstrate compliance with the joint commission's standards for credentialing and with all federal and state credentialing regulations, and maintain an errors and omissions insurance policy in amounts deemed to be adequate by the Secretary and Insurance Commissioner.

(3) Preference shall be given to credentialing verification organizations organized within the State of West Virginia.

§16-1A-7. Verification process; suspension of requirements.

(a) The statewide credentialing verification organization shall provide electronic access to the uniform credentialing application forms developed pursuant to section two of this article.

(b) A health care practitioner seeking to be credentialed must attest to and submit a completed uniform application form to the statewide credentialing verification organization and must provide any additional information requested by such credentialing verification organization: Provided, That a failure to comply with a reasonable request for additional information within thirty days may be grounds for the statewide credentialing verification organization to submit its report to any credentialing entity with identification of matters deemed to be incomplete.

(c) Except as provided in subsection (d) of this section, a credentialing entity may not require a person seeking to be credentialed or recredentialed to provide verification of any information contained in the uniform application: Provided, That nothing in this article is considered to prevent a credentialing entity from collecting or inquiring about information unavailable from or through the statewide credentialing verification organization or from making inquires to the National Practitioner Data Bank.

(d) A credentialing entity other than a health care facility must issue a credentialing decision within sixty days after receiving the statewide credentialing verification organization's completed report and, with respect to affirmative credentialing decisions, payments pursuant to the contract shall be retroactive to the date of the decision.

(e) If the statewide credentialing verification organization fails to maintain national committee for quality assurance certification or, in the opinion of the Secretary and Insurance Commissioner, is unable to satisfy compliance with the joint commission's standards or federal and state credentialing regulations, the Secretary and Insurance Commissioner may, under terms and conditions deemed necessary to maintain the integrity of the credentialing process, notify credentialing entities that the requirement, relating to the mandatory use of the statewide credentialing verification organization, is being suspended.

(f) Notwithstanding any other provision of this code, credentialing entities may contract with the statewide credentialing verification organization or another credentialing verification organization to perform credentialing services, such as site visits to health care practitioners' offices, in addition to those services for which the statewide credentialing verification organization is the sole source.

§16-1A-8. Release and uses of information collected; confidentiality.

(a) Upon execution of a release by the health care practitioner, the statewide credentialing verification organization shall, under terms established in rule, provide the credentialing entity with electronic access to data generated.

(b) In order to assure that information in its files is current, the statewide credentialing verification organization shall establish processes to update information as required by credentialing entities.

(c) Except as provided in subsection (d) of this section, all information collected by the statewide credentialing verification organization from any source is confidential in nature, is exempt from disclosure pursuant to subpoena or discovery, is exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code, and shall be used solely by a credentialing entity to review the professional background, competency and qualifications of each health care practitioner applying to be credentialed.

(d) Credentialing information received by a credentialing entity from the statewide credentialing verification organization shall not be disclosed except:

(1) In appeals of credentialing decisions or to peer review and quality improvement committees: Provided, That such information shall be afforded the same protection from disclosure as is provided to other records used in proceedings subject to section three, article three-c, chapter thirty of this code;

(2) In any matter in which an action or order of a professional licensing board or other state or federal regulatory authority is at issue, including any proceeding brought by or on behalf of a health care practitioner or patient or by a regulatory body that challenges the actions, omissions or conduct of a credentialing entity with respect to credentialing decision; or

(3) When authorized by the health care practitioner to whom the credentialing information relates: Provided, That the health care practitioner's authorization shall only permit disclosure of information that he or she provided directly to the statewide credentialing verification organization.

(e) Upon the expiration of the contract with a statewide credentialing verification organization, all information collected in connection with the duties under such contract shall be delivered to the Secretary and Insurance Commissioner to the extent allowed by law and subject to any legal requirements applicable to the sources of such information.

(f) The statewide credentialing verification organization may enter into contractual agreements to define the data type and form of information to be provided to users and to give users assurances of the integrity of the information collected.

§16-1A-9. Rulemaking; fees; penalties.

The Secretary and Insurance Commissioner, in consultation with the advisory committee, shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code on or before June 1, 2011. The legislative rules must include, but shall not be limited to, the following matters:

(1) Performance standards for the evaluation of the statewide credentialing verification organization;

(2) The manner in which the statewide credentialing verification organization must demonstrate compliance with credentialing standards and regulations;

(3) Penalties, including monetary sanctions, for violations of any provisions of this article;

(4) Duties of the statewide credentialing verification organization and the timelines for completion of its verification duties and services;

(5) Procedures for maintaining healthcare practitioner files;

(6) The payment system to cover the costs of the credentialing program;

(7) The use and confidentiality of data generated, collected and maintained by the statewide credentialing verification organization;

(8) Except with respect to health care facilities, the methodology for determination and communication of the common recredentialing date for a practitioner; and

(9) Procedures and criteria for the bidding and selection of the statewide credentialing verification organization.

§16-1A-10. Immunity.

(a) If the statewide credentialing verification organization certifies that information in an application has been verified according to its primary source verification procedures, any negligence by the statewide credentialing verification organization in its collection and verification of such information may not be imputed to a credentialing entity that receives such information and, further, such credentialing entity is not liable for damages arising from its reliance on such information in its credentialing process unless the credentialing entity knew or should have known such information was incorrect: Provided, That a credentialing entity is otherwise liable as provided by law for damages arising from its credentialing decisions.

(b) This article may not be interpreted as requiring a credentialing entity as defined in this article, to grant medical staff appointment to any practitioner nor may it be interpreted as requiring a credentialing entity to permit any practitioner to provide patient care or as requiring a payor or network to reimburse a practitioner for services.

§16-1B-1. Legislative findings.

The Legislature finds that the health and welfare of the veterans of the armed forces who are citizens of our state will be best served by the establishment of one or more skilled nursing facilities exclusively for these veterans. Furthermore, the Legislature finds that nearly two hundred thousand veterans in this state have distinguished themselves with the highest level of participation per capita of any state in the wars fought by this nation. Further, an aging veterans' population which suffers from wartime disabilities and illnesses are, or will be, in need of skilled nursing care.

The Legislature further finds that construction of an additional 120-bed veterans skilled nursing facility in southern West Virginia is needed, to be located on Department of Agriculture property in Beckley, West Virginia, adjacent to the Jackie Withrow Hospital which was formerly known as Pinecrest Hospital. The West Virginia veterans skilled nursing facility located in Clarksburg is currently at its maximum capacity and has a large waiting list for admission. With a veteran population that has now reached over two hundred twenty thousand, there is an overwhelming need for additional nursing home beds in other areas of our state to accommodate our veterans as they become unable to take care of themselves.

§16-1B-2. Construction, staffing and operation of one or more skilled nursing facilities for veterans of the Armed Forces of the United States.

The director of Veterans Affairs shall establish, construct, equip and operate one or more skilled nursing facilities to serve the needs of citizens of this state who are veterans of the Armed Forces of the United States. For each nursing facility established, the director shall appoint a facility administrator and other employees as are necessary to maintain the facility and deliver quality care to residents of the facility.

§16-1B-3. Issuance of bonds by the hospital finance authority; payment of bonds from net profits of the veterans lottery instant scratch-off game.

The director shall request that revenue bonds, not exceeding the principal amount of $10 million, be issued by the West Virginia hospital finance authority under provisions of section seven, article twenty-nine-a of this chapter. Net profit from the veterans lottery instant scratch-off game as authorized by section nine-a, article twenty-two, chapter twenty-nine of this code and other revenues that the Legislature may from time to time appropriate shall pay the principal and interest obligations of the bonds and the architectural and other project costs associated with the construction, reconstruction, renovation and maintenance of one or more skilled nursing facilities that will only serve the skilled nursing needs of West Virginia veterans who have performed active duty in an active component of the Armed Forces or performed active service in a reserve component of the Armed Forces.

§16-1B-4. Eligibility for service; legislative rule.

In order to qualify for service and residency in a skilled nursing facility established under this article, an applicant must have continuously been a citizen of the State of West Virginia for twelve consecutive months and must have performed active duty in an active component of the Armed Forces or performed active service in a reserve component of the Armed Forces for at least twelve consecutive months. The director shall propose a legislative rule further defining and limiting eligibility for services and residency under this article.

§16-1C-1. Definitions.

(a)"Direct patient care" means health care that provides for the physical, diagnostic, emotional or rehabilitation needs of a patient or health care that involves examination, treatment or preparation for diagnostic tests or procedures.

(b) "Employee" means an employee or contractor of a health care provider or a person who is granted privileges by a health care provider who delivers direct patient care.

(c) "Health care provider" means an individual, partnership, corporation, facility, hospital or institution licensed or certified or authorized by law to provide professional health care service in this state to a patient during that patient's medical, remedial or behavioral health care, treatment or confinement.

(d) "Secretary" means the Secretary of the Department of Health. The secretary may define in rules any term or phrase used in this article which is not expressly defined.

§16-1C-2. Identification badge requirements.

 Notwithstanding any other provision of this code, an employee shall wear an identification badge when providing direct patient care. The identification badge shall be worn in a conspicuous manner so as to be visible and apparent.

§16-1C-3. Exceptions.

(a) Notwithstanding section two of this article, the following shall apply:

(1) An employee shall not be required to wear an identification badge while delivering direct patient care if it is not clinically feasible.

(2) The last name of the employee may be omitted or concealed from an identification badge when delivering direct patient care if the employee is concerned for his or her safety.

(b) An employee may petition the secretary for an exemption from the requirements of this article for reasons that are not set forth in this section.

(c) An employee providing direct patient care in a behavioral health care setting may not be required to wear an identification badge.

§16-1C-4. Rules.

The secretary, in consultation with appropriate health care provider professional licensing boards, shall propose rules for legislative approval in accordance with the provisions of chapter twenty-nine-a of this code to implement the provisions of this article. These rules shall include, at a minimum:

(1) The contents of the identification badge, which shall at least include the name of the employee and title of the employee;

(2) The title to be used to identify employee licensure information;

(3) The appearance of the identification badge, which shall have the title of the employee as large as possible in block type: Provided, That health care facilities providing identification badges prior to enactment of this article shall not be required to issue new badges;

(4) The process and procedure for seeking an exemption from the requirements of this article; and

(5) Such other rules as may be deemed necessary to effectuate the purposes of this article.

§16-1C-5. Applicability.

Section two of this article applies to employees of health care providers who employ at least three licensed practitioners or employ more than ten employees as of July 1, 2016.

§16-2-1. Purpose.

Local boards of health, created, established and operated pursuant to the provisions of this article, are responsible for directing, supervising and carrying out matters relating to the public health of their respective counties or municipalities. This article provides that local boards of health may be organized as boards of health serving a single municipality, a single county or a combination of any two or more counties or any county or counties and one or more municipalities within or partially within the county or counties. This article establishes uniform provisions applicable to all local boards of health, whatever organizational form is elected, to ensure the consistent performance of duties relating to basic public health services and other health services and the enforcement of the laws of this state pertaining to public health.

§16-2-2. Definitions.

Unless the context used clearly requires a different meaning, as used in this article:

"Appointing authority" means the county commission or municipality, or combination thereof, that authorized the creation or combination of the local board of health, in whatever form it presently exists;

"Basic public health services" means those services that are necessary to protect the health of the public and that a local board of health must provide;

"Bureau" means the Bureau for Public Health;

"Clinical and categorical programs" means those services provided to individuals of specified populations and usually focus on health promotion or disease prevention. These services are not considered comprehensive health care but focus on specific health issues such as breast and cervical cancer, prenatal and pediatric health services, and home health services;

"Combined local board of health" is one form of organization for a local board of health and means a board of health serving any two or more counties or any county or counties and one or more municipalities within or partially within the county or counties;

"Commissioner" means the Commissioner of the Bureau for Public Health, who is the state health officer;

"Communicable and reportable disease prevention and control" means disease surveillance, case investigation and follow-up, outbreak investigation, response to epidemics, and prevention and control of communicable and reportable diseases;

"Community health promotion" mean assessing and reporting community health needs to improve health status, facilitating community partnerships including identifying the community’s priority health needs, mobilization of a community around identified priorities, and monitoring the progress of community health education services;

"County board of health" is one form of organization for a local board of health and means a local board of health serving a single county;

"Department" means the Department of Health;

"Enforcement activity" means the implementation or enforcement of applicable state rules, local rules, and local health department rules;

"Enhanced public health services" means services that focus on health promotion activities to address a major health problem in a community, are targeted to a particular population and assist individuals in this population to access the health care system;

"Environmental health protection" means efforts to protect the community from environmental health risks including, inspection of housing, institutions, recreational facilities, sewage, and wastewater facilities; inspection and sampling of drinking water facilities; and response to disease outbreaks or disasters;

"Guidance" means providing advice to a person, the public, a business, school board, or governmental entity regarding a public health issue or matter. Guidance is not a health order;

"Health order" means an order issued by the local health officer or local health board to protect the public health of the citizens by directing an individual or a discreet group of individuals to take a specific action to protect the health of the public or stop the spread of a communicable disease;

"Imminent public health emergency" means any immediate acute threat, hazard, or danger to the health of the population of the jurisdiction, whether specific or general, whether or not officially declared;

"Local board of health", "local board", or "board" means a board of health serving one or more counties or one or more municipalities or a combination thereof;

"Local health department" means the staff of the local board of health;

"Local health department rule" means a rule issued by the local board of health that has been approved by the appointing authority or was adopted prior to March 4, 2021, or a rule issued by the local board of health that may immediately go into effect because of an imminent public health emergency under §16-2-1(b)(3)(H) of this code;

"Local health officer" means the individual physician with a current West Virginia license to practice medicine or a licensed advanced practice registered nurse that has the ability to independently practice who supervises and directs the activities of the local health department services, staff and facilities and is appointed by the local board of health;

"Local rule" means an order adopted by a county commission or an ordinance adopted by a city that properly directs the local health department to implement or enforce the order or ordinance;

"Municipal board of health" is one form of organization for a local board of health and means a board of health serving a single municipality;

"Performance-based standards" means generally accepted, objective standards such as rules or guidelines against which a local health department’s level of performance can be measured;

"Primary care services" means health care services, including medical care, that emphasize first contact patient care and assume overall and ongoing responsibility for the patient in health maintenance and treatment of disease. Primary care services are services that local boards of health may offer if the board has determined that an unmet need for primary care services exists in its service area. Basic public health services funding may not be used to support these services;

"Secretary" means the Secretary of the Department of Health;

"Service area" means the territorial jurisdiction of the local board of health; and

"State Rule" means a state statute, legislative rule promulgated by a state agency, or an order of the secretary relating to public health that is to be enforced by a local health department.

§16-2-3. Authority to create, establish and maintain county boards of health; service area.

A county commission shall create, establish and maintain a county board of health if no other local board of health organized under this article is established and responsible for public health in the service area. The county board of health shall be organized pursuant to and with the powers and duties prescribed by this article. The service area of any county board of health is the county territorial limits and includes every municipality within the county that does not have a municipal board of health maintaining a separate full-time municipal health department under the supervision of a municipal local health officer or that is not a member of a combined local board of health.

§16-2-4. Authority to create, establish and maintain municipal boards of health; service area.

The governing body of a municipality may create, establish and maintain a municipal board of health organized pursuant to and with the powers and duties prescribed by this article. The territorial jurisdiction of any municipal board of health is an area including the municipality and all points within a distance of one mile from the limits of the municipality.

§16-2-5. Authority to create, establish and maintain combined local boards of health; service area.

Any two or more counties or any county or counties and one or more municipalities within or partially within the county or counties may combine to create, establish and maintain a combined local board of health organized pursuant to and with the powers and duties prescribed by this article. The plan of combination must be approved by the commissioner. The service area of any combined local board of health is the combined territorial limits of the participating municipality or municipalities and county or counties: Provided, That if all or a portion of a participating municipality is located in a nonparticipating county, the service area of the combined local board of health is limited to the territorial limits of the municipality and does not extend to or include any area of the nonparticipating county outside of the municipal limits: Provided, however, That the service area of a combined local board does not extend to or include any area within the service area of a municipal board of health maintaining a separate full-time municipal health department under the supervision of a municipal local health officer.

§16-2-6. Appointment to and composition of municipal boards of health; qualifications; number of appointees.

A municipal board of health is composed of five members selected and appointed by vote of the governing body of the municipality. Each member appointed to a municipal board of health shall be a resident of the municipality. No more than two members who reside in the same municipal ward may be appointed and no more than two members may be appointed who are personally licensed or certified in, engaged in, or actively participating in the same business, profession or occupation. No more than three members of a municipal board of health may belong to the same political party.

§16-2-7. Appointment to and composition of county boards of health; qualifications; number of appointees.

A county board of health is composed of five members selected and appointed by vote of the county commission. Each member appointed to the county board of health shall be a resident of the county. No more than two members who reside in the same magisterial district may be appointed and no more than two members may be appointed who are personally licensed or certified in, engaged in, or actively participating in the same business, profession or occupation. No more than three members of a county board of health may belong to the same political party.

§16-2-8. Appointment to and composition of combined local boards of health; qualifications; number of appointees.

A combined local board of health is composed of at least five members. The number of combined local board of health members to be selected by each participating county or municipality shall be established by agreement of the participating counties or municipalities. No more than one half of the members of a combined local board of health may be personally licensed or certified in, engaged in, or actively participating in the same business, profession or occupation. The number of members of a combined local board of health belonging to the same political party may not exceed by more than one the number of members belonging to another political party. No member may be selected and appointed by and represent more than one participating county or municipality.

The county commission of each participating county may select and appoint by vote no fewer than one and no more than three persons to serve as the representatives of the county on the combined local board of health. Each member appointed as a county representative to the combined local board of health shall be a resident of the participating county. No more than two persons residing in the same magisterial district may be appointed by a participating county as members and no more than two members may be appointed by a participating county who are personally licensed or certified in, engaged in, or actively participating in the same business, profession or occupation.

The governing body of each participating municipality may select and appoint by vote no fewer than one and no more than three persons to serve as the representatives of the municipality on the combined local board of health. Each member appointed as a municipality's representative to the combined local board of health shall be a resident of the municipality. No more than two members who reside in the same municipal ward may be appointed and no more than two members may be appointed who are personally licensed or certified in, engaged in, or actively participating in the same business, profession or occupation.

Upon the formation of a combined local board of health and during the duration of its existence, there may be no separate county board of health or municipal board of health in any county or any municipality participating in the combined local board of health.

§16-2-9. Local board of health; terms of appointment; reappointment; oath of office; vacancies; removal; compensation; expenses.

(a) The term of office for members selected and appointed to a local board of health pursuant to the provisions of this article is five years. Members may serve until their duly qualified successors are selected and appointed by vote of the original appointing authority. Members may be reappointed for additional terms of five years. Board members’ oaths of office shall be duly recorded before entering into or discharging any duties of the office.

(b) Any vacancy on any local board of health shall be filled by appointment of the original appointing authority. This appointment is for the unexpired term.

(c) A local board, or the appointing authority, of health may remove any of its members pursuant to the provisions of its lawfully adopted bylaws and shall remove any of its members for official misconduct, incompetence, neglect of duty, or the revocation of any state professional license or certification. With respect to a combined board, a county commission or appointing authority may remove any of its appointed members pursuant to the provisions of its lawfully adopted bylaws and shall remove any of its appointed members for official misconduct, incompetence, neglect of duty, or the revocation of any state professional license or certification. A local board of health, or any of its members may be removed by the state health officer for failure or refusal to comply with duties as set forth by statute or rule. Upon removal, a successor or successors to the member or members removed shall immediately be appointed by the original appointing body pursuant to the provisions of this article.

(d) Each member of a local board of health may receive compensation as determined by the local board for attending meetings of and other activities for the board as required by law: Provided, That this compensation may not exceed $100 per day. Each member of a local board may be reimbursed for all reasonable and necessary travel and other expenses actually incurred by the member in the performance of duties as a member of the local board.

§16-2-10. Local board of health; meetings; attendance; bylaws; quorum; chairperson selection, powers and duties.

(a) A local board of health shall meet as often as necessary to orderly and efficiently execute its duties and exercise its powers but, no fewer than six times per year. Members of a local board of health shall attend board meetings in compliance with attendance policies established by its bylaws or rules.

(b) A local board of health shall adopt and may amend bylaws or rules governing the time and place of its regular meetings, procedures, and method of conducting its meetings. A quorum of the board for transacting business is a simple majority of the constituent membership of the board.

(c) A local board of health, pursuant to its bylaws, shall elect from its members a chairperson. The chairperson shall serve for a term of one year and may be reelected for additional terms. The chairperson may, on behalf of the board, sign documents, execute contracts, and otherwise act for and in the name of the board in all matters within its lawful powers and as duly authorized by a majority of the board members.

§16-2-11. Local board of health; powers and duties.

(a) A local board of health created, established, and operated pursuant to the provisions of this article shall:

(1) Provide the following basic public health services and programs in accordance with state public health performance-based standards:

(A) Community health promotion including assessing and reporting community health needs to improve health status, facilitating community partnerships including identifying the community’s priority health needs, mobilization of a community around identified priorities, and monitoring the progress of community health education services;

(B) Environmental health protection including the promoting and maintaining of clean and safe air, water, food, and facilities, and the administering of public health laws as specified by the commissioner as to general sanitation, the sanitation of public drinking water, sewage and wastewater, food and milk, and the sanitation of housing, institutions, and recreation; and

(C) Communicable or reportable disease prevention and control including disease surveillance, case investigation and follow-up, outbreak investigation, response to epidemics, and prevention and control of rabies, sexually transmitted diseases, vaccine preventable diseases, HIV/AIDS, tuberculosis, and other communicable and reportable diseases;

 (D) Immunizations; and

(E) Threat preparedness.

(2) Provide equipment and facilities for the local health department that are in compliance with federal and state law;

(3) Permit the commissioner to act by and through it, as needed. The commissioner may enforce all public health laws of this state, the rules and orders of the secretary, any county commission orders or municipal ordinances of the board’s service area relating to public health, and the rules and orders of the local board within the service area of a local board. The commissioner may enforce these laws, rules, and orders when, in the opinion of the commissioner, a public health emergency exists or when the local board fails or refuses to enforce public health laws and rules necessary to prevent and control the spread of a communicable or reportable disease dangerous to the public health. The expenses incurred shall be charged against the counties or municipalities concerned;

(4) Deposit all moneys and collected fees into an account designated for local board of health purposes. The moneys for a municipal board of health shall be deposited with the municipal treasury in the service area. The moneys for a county board of health shall be deposited with the county treasury in the service area. The moneys for a combined local board of health shall be deposited in an account as designated in the plan of combination: Provided, That nothing contained in this subsection is intended to conflict with the provisions of §16-1-1 et seq. of this code;

(5) Submit vouchers or other instruments approved by the board and signed by the local health officer or designated representative to the county or municipal treasurer for payment of necessary and reasonable expenditures from the county or municipal public health funds: Provided, That a combined local board of health shall draw upon its public health funds account in the manner designated in the plan of combination;

(6) Participate in audits, be in compliance with tax procedures required by the state, and annually develop a budget for the next fiscal year;

(7) Perform public health duties assigned by order of a county commission or by municipal ordinance consistent with state public health laws;

(8) Enforce the public health laws of this state and any other laws of this state applicable to the local board; and

(9) Create by rule a fee schedule, as approved by the appointing authority, for those environmental services it provides that are not established by state code.

(b) A local board of health may:

(1) Provide primary care services, clinical and categorical programs, and enhanced public health services;

(2) Employ or contract with any technical, administrative, clerical, or other persons, to serve as needed and at the will and pleasure of the local board of health. Staff and any contractors providing services to the board shall comply with applicable West Virginia certification and licensure requirements. Eligible staff employed by the board shall be covered by the rules of the Division of Personnel under §29-10-6 of this code. However, any local board of health may, in the alternative and with the consent and approval of the appointing authority, establish and adopt a merit system for its eligible employees. The merit system may be similar to the state merit system and may be established by the local board by its order, subject to the approval of the appointing authority, adopting and making applicable to the local health department all, or any portion of any order, rule, standard, or compensation rate in effect in the state merit system as may be desired and as is properly applicable;

(3) (A) Adopt and promulgate and from time to time amend local health department rules consistent with state rules, that are necessary and proper for the protection of the general health of the service area and the prevention of the introduction, propagation, and spread of disease.

(B) The commissioner shall establish a procedure by which adverse determinations by local health departments may be appealed, unless otherwise provided for, for the purpose of ensuring a consistent interpretation of state rules.

(C) When local health department rules are adopted, promulgated, or amended, the local board of health shall place notice in the State Register and on their organization’s web page setting forth a notice of proposed action, including the text of the new local health department rule or the amendment and the date, time, and place for receipt of public comment.

(D) All local health department rules shall be approved, disapproved, or amended and approved by the county commission or appointing authority within 30 days of approval from the local board of health, and any local health department rule on which the appointing authority has taken no action within 30 days shall be void: Provided, That a local health department rule issued in response to an imminent public health emergency under the provisions of paragraph (H) of this subdivision may have immediate force and effect subject to the limitations set forth therein.

(E) All local health department rules of a combined local board of health shall be approved, disapproved, or amended and approved by each appointing authority within 30 days of approval from the combined local board of health. If one appointing authority approves and another other does not approve a local health department rule from a combined local board health department, the local health department rule is only in effect in the jurisdiction of the appointing authority which approved the local health department rule: Provided, That a local health department rule issued in response to an imminent public health emergency under the provisions of paragraph (H) of this subdivision may have immediate force and effect subject to the limitations set forth therein.

(F) An approved local health department rule shall be filed with the clerk of the county commission or the clerk or the recorder of the municipality, or both, and shall be kept by the clerk or recording officer in a separate book as public records.

(G) A local health department rule currently in effect on March 4, 2021, is not subject to approval, unless amended, from the county commission or appointing authority.

(H) If there is an imminent public health emergency, approval of the county commission or appointing authority is not necessary before a local health department rule goes into effect but shall be approved or disapproved by the county commission or appointing authority within 30 days after the local health department rules are effective, and any rule on which the appointing authority has taken no action within 30 days shall be void;

(4) Accept, receive, and receipt for money or property from any federal, state, or local governmental agency, from any other public source or from any private source, to be used for public health purposes or for the establishment or construction of public health facilities;

(5) Assess, charge, and collect fees for permits and licenses for the provision of public health services: Provided, That permits and licenses required for agricultural activities may not be assessed, charged, or collected: Provided, however, That a local board of health may assess, charge, and collect all of the expenses of inspection of the physical plant and facilities of any distributor, producer, or pasteurizer of milk whose milk distribution, production, or pasteurization facilities are located outside this state but who sells or distributes in the state, or transports, causes, or permits to be transported into this state, milk or milk products for resale, use or consumption in the state and in the service area of the local board of health. A local board of health may not assess, charge, and collect the expenses of inspection if the physical plant and facilities are regularly inspected by another agency of this state or its governmental subdivisions or by an agency of another state or its governmental subdivisions certified as an approved inspection agency by the commissioner. No more than one local board of health may act as the regular inspection agency of the physical plant and facilities; when two or more include an inspection of the physical plant and facilities in a regular schedule, the commissioner shall designate one as the regular inspection agency;

(6) A local health department may bill health care service fees to a payor which includes, but is not limited to, Medicaid, a Medicaid Managed Care Organization, and the Public Employees Insurance Agency for medical services provided: Provided further, That health care service fees billed by a local health department are not subject to commissioner approval and may be at the payor’s maximum allowable rate;

(7) Contract for payment with any municipality, county, or board of education, for the provision of local health services or for the use of public health facilities. Any contract shall be in writing and permit provision of services or use of facilities for a period not to exceed one fiscal year. The written contract may include provisions for annual renewal by agreement of the parties; and

(8) Retain and make available child safety car seats, collect rental and security deposit fees for the expenses of retaining and making available child safety car seats, and conduct public education activities concerning the use and preventing the misuse of child safety car seats: Provided, That this subsection is not intended to conflict with the provisions of §17C-15-46 of this code: Provided, however, That any local board of health offering a child safety car seat program or employee or agent of a local board of health is immune from civil or criminal liability in any action relating to the improper use, malfunction, or inadequate maintenance of the child safety car seat and in any action relating to the improper placement, maintenance, or securing of a child in a child safety car seat.

(c) The local boards of health are charged with protecting the health and safety, as well as promoting the interests of the citizens of West Virginia. All state funds appropriated by the Legislature for the benefit of local boards of health shall be used for provision of basic public health services.

(d) If the Governor declares a statewide public health emergency, the state health officer may develop emergency policies and guidelines that each of the local health departments responding to the emergency must comply with in response to the public health emergency.

§16-2-12. Local health officer; term of appointment; qualifications; reappointment; compensation; and removal.

A local board of health shall appoint a full-time or part-time local health officer. The local health officer shall be a physician or a licensed advanced practice registered nurse with the ability to practice independently currently licensed in this state and knowledgeable in the science of public health. A local health officer serves at the will and pleasure of the local board for a term of one year and is eligible for reappointment at compensation determined by the local board of health.

A local health officer may be removed from office by the commissioner if the local health officer fails or refuses to carry out the lawful orders or rules of the secretary in the event the commissioner determines a public health emergency exists or if the local health officer fails or refuses to enforce public health laws and rules necessary to prevent and control the spread of communicable or reportable diseases dangerous to the public health. Upon removal, a successor local health officer shall immediately be appointed by the board pursuant to the provisions of this article.

§16-2-13. Local health officer; powers and duties.

(a) A local health officer serves as the executive officer of the local board and under its supervision, a local health officer shall administer and enforce state rules, local rules, and local health department rules within the local board of health’s service area.

(b) A local health officer has the following additional powers which may be delegated with the approval of the board:

(1) To attend local board meetings as a nonvoting member. A local health officer serves as secretary at all board meetings and is responsible for maintaining the board’s offices, meeting minutes, and records;

(2) To supervise and direct the activities of the local board’s health services, employees and facilities;

(3) To ensure that procedures are established for the receipt of communicable or reportable disease reports and for the transmittal of the reports to the commissioner;

(4) To perform mandatory HIV tests on persons convicted of sex-related offenses and resident within the service area; and

(5) To determine when sufficient corrections have been made to warrant removal of any restrictions or limitations placed on an individual or entity for public health purposes by an employee of the local board of health.

(c) A local health officer shall perform enforcement activity.

(d) A local health officer may issue guidance.

(e) A local health officer may issue a health order.

§16-2-14. Financial responsibilities of appointing authorities for local boards of health; levies; appropriation of county or municipal general funds for public health purposes; state funding.

The appointing authorities for local boards of health shall provide financial support for the operation of the local health department. The county commission of any county or the governing body of any municipality in which a local board of health is established, or the county commission of any county or the governing body of any municipality who is a participating member of a combined local board of health may levy a county or municipal tax to provide funds for the local board of health: Provided, That the tax may not exceed 3 cents on each $100 of assessed valuation of the taxable property in the levying county or municipality, according to the latest assessment.

The county commission of any county or the governing body of any municipality in which a local board of health is established, or the county commission of any county or the governing body of any municipality who is a participating member of a combined local board of health may appropriate and spend money from the county or municipal general funds for public health purposes and to pay the expenses of the operation of the local board of health services and facilities.

The commissioner and the secretary may pay over and contribute to any board of health, the sum or sums of money that may be available from funds included in appropriations made for the department. The commissioner may withhold all or part of any funds until a local board of health submits an acceptable plan to correct deficiencies in the local board’s program plan.

§16-2-15. Obstructing local health officers and others in the enforcement of public health laws; other violations; penalties.

Any person who willfully obstructs any local health officer, public health nurse, sanitarian or any other person charged with the enforcement of any public health law, in the performance of that person's legal duties in enforcing the law, is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than $50 and not more than $500.

Any person who willfully violates any of the provisions of this article, or any of the rules or orders adopted or issued pursuant to the provisions, for which a penalty is not otherwise provided, is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than $200 and not more than $1,000.

Magistrates have concurrent jurisdiction with the circuit courts of this state for violations of provisions of this article.

§16-2-16. Food handler examinations and cards.

A food handler permit or card issued pursuant to the procedures put in place by a local county health department shall be valid for at least one year but not longer than three years. The permit or card shall be valid in all counties of this state, if the applicant pays an additional fee not to exceed $10. If required, a permit or card shall be obtained within thirty days of a person being hired in a restaurant or other applicable food establishment. The Bureau for Public Health shall develop minimum guidelines for training programs for individuals seeking a food handler permit or card that may be adopted by local county health departments. In lieu of state guidelines a local health department may use training courses developed by the American National Standards Institute or other nationally recognized entities for food safety training.

§16-2A-1.

Repealed.

Acts, 2000 Reg. Sess., Ch. 130.

§16-2B-1. Family planning and child spacing; authorized functions; funds.

(a) The Bureau for Public Health may provide printed material, guidance, advice, financial assistance, appliances, devices, drugs, approved methods, and medicines to local boards of health and other entities requesting the same for use in the operation of family planning and child spacing clinics to the extent of funds appropriated by the Legislature and any federal funds made available for such purpose.

(b) The Bureau for Medical Services shall not require multiple office visits or prior authorization for a woman who selects long-acting reversible contraceptive (LARC) methods unless medically necessary. The bureau shall provide payment for LARC devices and their insertion, maintenance, removal, and replacement. The Bureau for Medical Services shall update the managed care contract to include language that the contracted managed care company may not present barriers that delay or prevent access, such as prior authorizations or step-therapy failure requirements; and should receive patient-centered education and counseling on all FDA-approved birth control methods.

(c) The Bureau for Public Health may make LARC products available in practitioner offices without upfront practitioner costs.

(d) The Bureau for Public Health shall develop a statewide plan with the goal of reducing exposure of a fetus to illicit substances by increasing the number of clients served and enabling access to LARC and other family planning methods. The plan shall include strategies for increasing LARC accessibility and training of health care providers, and shall provide a fiscal analysis of plan implementation and potential impact.

(e) The Department of Health shall report annually to the Legislative Oversight Commission on Health and Human Resources Accountability. The report shall include, at a minimum, the number of LARC treatments provided and the number of children born with intrauterine substance exposure and neonatal abstinence syndrome in West Virginia during the past three years.

§16-2B-2. Local boards of health authorized to establish clinics; supervision; purposes; abortion not approved; approval by state board of programs.

A local board of health, created and maintained pursuant to the provisions of article two or article two-a of this chapter, is authorized to establish and operate within its jurisdiction, one or more family planning and child spacing clinics under the supervision of a licensed physician for the purpose of disseminating information, conducting medical examinations and distributing family planning and child spacing appliances, devices, drugs, approved methods and medication without charge to indigent and medically indigent persons on request and with the approval of said licensed physician. Such information, appliances, devices, drugs, approved methods and medication shall be dispensed only in accordance with the recipients' expressed wishes and beliefs and in accordance with all state and federal laws for the dispensing of legend drugs: Provided, That the procedure of abortion shall not be considered an approved method of family planning and child spacing within the intent of this section and is expressly excluded from the programs herein authorized. All local boards of health receiving state or federal funds for family planning or child spacing programs shall first receive approval by the Bureau for Public Health of their general plan of operation of such programs.

§16-2B-3. State and local health and welfare agency employees to advise indigent and medically indigent of availability of services; compulsory acceptance of services prohibited; acceptance not condition to receiving other services and benefits.

The Secretary of Health and the Secretary of Human Services are directed to instruct their employees who work with the indigent and medically indigent to advise such indigent persons of the availability of the family planning and child spacing services offered by the state and local health departments: Provided, however, That no employee of the State of West Virginia or any employee of its agencies or of its political subdivisions, including but not limited to local health, or welfare agencies may compel any individual or family, either directly or indirectly, to accept or practice family planning, or any particular family planning method as a condition for receiving other public services or governmental benefits in any form nor shall any such employee or person represent to any individual or family, either directly or indirectly, that the acceptance or practice of family planning is a condition for receiving any public services or governmental benefits. Any violation of this section shall be grounds for dismissal or other appropriate disciplinary action.

§16-2B-4. Exemption of employees from offering services when such duty is contrary to religious beliefs.

Any employee of the State of West Virginia or any of its agencies or political subdivisions, including, but not limited to, local health or welfare agencies, may refuse to accept the duty of offering family planning services to the extent that such duty is contrary to his personal religious beliefs and such refusal shall not be grounds for any disciplinary action, for dismissal, for any interdepartmental transfer, or any other discrimination in his employment, or for suspension from employment, or for any loss in pay or any other benefits.

§16-2C-1. Definitions.

For the purposes of this article:

"Home health services" shall mean and include, but not be limited to, the following services furnished to an individual who is under the care of a physician, such services to be provided on a visiting basis in a place of residence used as the individual's home: (1) Part-time or intermittent nursing care provided by or under the supervision of a registered professional nurse; (2) physical, occupational or speech therapy; (3) medical social services under the direction of a physician; (4) part-time or intermittent services of a home health aide.

"Department" shall mean the state department of health.

"Local boards" shall mean local health boards established pursuant to the provisions of article two or two- a of this chapter.

§16-2C-2. Department to provide services; charges for services; authority to employ personnel; purchase of supplies and equipment; assistance to nonprofit agencies.

The department shall provide home health services to those persons living in areas of the state in which adequate home health services are not available otherwise. For such services the department shall, and is hereby authorized to, charge fees to individuals to whom it renders such services or to any governmental agency purchasing such services for individuals, except for demonstration and public health program activities.

In order that it may effectively render home health services, the department shall employ the necessary personnel including nursing and supervisory personnel and shall have the further authority to purchase equipment and materials necessary to maintain an effective program of home health services.

The department shall, wherever possible, assist and advise nonprofit agencies or associations in the development of a home health services program to be carried out by such agencies or associations and, for that purpose, may enter into agreements with these agencies or associations specifying the type of assistance and advice it will render them.

§16-2C-3. Local boards' authority respecting home health services.

Local boards are hereby authorized to enter into written agreements with the department for the purpose of rendering home health services to persons within their respective counties and municipalities. Such agreements shall provide for the maintenance of standards established by the department for home health services by the local boards and for such supervision by the department as is deemed necessary to implement an effective program of home health services on the part of the local boards.

Whenever any local board has entered into an agreement with the department as is herein provided, it may render such home health services as are authorized by this article and for that purpose may charge fees and expend moneys to the same extent as this article authorizes for the department. Any local board may render such service anywhere within the area which it serves.

§16-2C-4. Funds received for home health services.

The department and local boards are authorized to receive moneys from any source for home health services. All such moneys as the department and local boards may receive for this service shall be used to carry out the provisions of this article.

§16-2C-5. Collection of fees for home health services.

The department and local boards are authorized to maintain legal action through the prosecuting attorneys of the several counties for the collection of fees charged for home health services which have been rendered to any person.

§16-2D-1. Legislative findings.

It is declared to be the public policy of this state:

(1) That the offering or development of all health services shall be accomplished in a manner which is orderly, economical and consistent with the effective development of necessary and adequate means of providing for the health services of the people of this state and to avoid unnecessary duplication of health services, and to contain or reduce increases in the cost of delivering health services.

(2) That the general welfare and protection of the lives, health and property of the people of this state require that the type, level and quality of care, the feasibility of providing such care and other criteria as provided for in this article, including certificate of need standards and criteria developed by the authority pursuant to provisions of this article, pertaining to health services within this state, be subject to review and evaluation before any health services are offered or developed in order that appropriate and needed health services are made available for persons in the area to be served.

§16-2D-2. Definitions.

As used in this article:

(1) "Affected person" means:

(A) The applicant;

(B) An agency or organization representing consumers;

(C) An individual residing within the geographic area but within this state served or to be served by the applicant;

(D) An individual who regularly uses the health care facilities within that geographic area;

(E) A health care facility located within this state which provide services similar to the services of the facility under review and which will be significantly affected by the proposed project;

(F) A health care facility located within this state which, before receipt by the authority of the proposal being reviewed, has formally indicated an intention to provide similar services within this state in the future;

(G) Third-party payors who reimburse health care facilities within this state; or

(H) An organization representing health care providers;

(2) "Ambulatory health care facility" means a facility that provides health services to noninstitutionalized and nonhomebound persons on an outpatient basis;

(3) "Ambulatory surgical facility" means a facility not physically attached to a health care facility that provides surgical treatment to patients not requiring hospitalization;

(4) "Applicant" means a person applying for a certificate of need, exemption or determination of review;

(5) "Authority" means the West Virginia Health Care Authority as provided in §16-29B-1 et seq. of this code;

(6) "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;

(7) "Behavioral health services" means services provided for the care and treatment of persons with mental illness or developmental disabilities;

(8) "Birthing center" means a short-stay ambulatory health care facility designed for low-risk births following normal uncomplicated pregnancy;

(9) "Campus" means the physical area immediately adjacent to the hospital’s main buildings, other areas, and structures that are not strictly contiguous to the main buildings, but are located within 250 yards of the main buildings;

(10) "Capital expenditure" means:

(A) (i) An expenditure made by or on behalf of a health care facility, which:

(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 part; and

(ii) (I) Exceeds the expenditure minimum;

(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;

(B) 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

(C) A series of expenditures, if the sum total exceeds the expenditure minimum and if determined by the authority to be a single capital expenditure subject to review. In making this determination, the authority shall consider: Whether the expenditures are for components of a system which is required to accomplish a single purpose; 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.

(11) "Charges" means the economic value established for accounting purposes of the goods and services a hospital provides for all classes of purchasers;

(12) "Community mental health and intellectual disability facility" means a facility which provides comprehensive services and continuity of care as emergency, outpatient, partial hospitalization, inpatient or consultation and education for individuals with mental illness, intellectual disability;

(13) "Diagnostic imaging" means the use of radiology, ultrasound, and mammography;

(14)"Drug and Alcohol Rehabilitation Services" means a medically or psychotherapeutically supervised process for assisting individuals through the processes of withdrawal from dependency on psychoactive substances;

(15) "Expenditure minimum" means the cost of acquisition, improvement, expansion of any facility, equipment, or services including the cost of any studies, surveys, designs, plans, working drawings, specifications and other activities, including staff effort and consulting at and above $100 million;

(16) "Health care facility" means a publicly or privately owned facility, agency or entity that offers or provides health services, whether a for-profit or nonprofit entity and whether or not licensed, or required to be licensed, in whole or in part;

(17) "Health care provider" means a person authorized by law to provide professional health services in this state to an individual;

(18) "Health services" means clinically related preventive, diagnostic, treatment or rehabilitative services;

(19) "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:

(A) Home health aide services;

(B) Physical therapy;

(C) Speech therapy;

(D) Occupational therapy;

(E) Nutritional services; or

(F) Medical social services to persons in their place of residence on a part-time or intermittent basis.

(20) "Hospice" means a coordinated program of home and inpatient care provided directly or through an agreement under the direction of a licensed hospice program which provides palliative and supportive medical and other health services to terminally ill individuals and their families.

(21) "Hospital" means a facility licensed pursuant to the provisions of §16-5B-1 et seq. of this code 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.

(22) "Hospital services" means services provided primarily to an inpatient to include, but not be limited to, preventative, diagnostic, treatment, or rehabilitative services provided in various departments on a hospital’s campus;

(23) "Intermediate care facility" means an institution that provides health-related services to individuals with 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.

(24) "Inpatient" means a patient whose medical condition, safety, or health would be significantly threatened if his or her care was provided in a less intense setting than a hospital. This patient stays in the hospital overnight.

(25) "Like equipment" means medical equipment in which functional and technological capabilities are similar to the equipment being replaced; and the replacement equipment is to be used for the same or similar diagnostic, therapeutic, or treatment purposes as currently in use; and it does not constitute a substantial change in health service or a proposed health service.

(26) "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 the expenditure minimum. 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.

(27) "Medically underserved population" means the population of an area designated by the authority as having a shortage of a specific health service.

(28) "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 health services offered by the health care facility.

(29) "Offer" means the health care facility holds itself out as capable of providing, or as having the means to provide, specified health services.

(30) "Opioid treatment program" means as that term is defined in §16-5Y-1 et seq. of this code.

(31)"Person" means an individual, trust, estate, partnership, limited liability corporation, committee, corporation, governing body, 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.

(32) "Personal care agency" means an entity that provides personal care services approved by the Bureau of Medical Services.

(33) "Personal care services" means personal hygiene; dressing; feeding; nutrition; environmental support and health-related tasks provided by a personal care agency.

(34) "Physician" means an individual who is licensed to practice allopathic medicine by the Board of Medicine or licensed to practice osteopathic medicine by the Board of Osteopathic Medicine.

(35) "Proposed health service" means any service as described in §16-2D-8 of this code.

(36) "Purchaser" means an individual who is directly or indirectly responsible for payment of patient care services rendered by a health care provider, but does not include third-party payers.

(37) "Rates" means charges imposed by a health care facility for health services.

(38) "Records" means accounts, books and other data related to health service costs at health care facilities subject to the provisions of this article which do not include privileged medical information, individual personal data, confidential information, the disclosure of which is prohibited by other provisions of this code and the laws enacted by the federal government, and information, the disclosure of which would be an invasion of privacy.

(39) "Rehabilitation facility" means an inpatient facility licensed in West Virginia operated for the primary purpose of assisting in the rehabilitation of disabled persons through an integrated program of medical and other services.

(40) "Related organization" means an organization, whether publicly owned, nonprofit, tax-exempt or for profit, related to a health care 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" means parents, children, brothers and sisters whether by the whole or half blood, spouse, ancestors, and lineal descendants.

(41) "Secretary" means the Secretary of the West Virginia Department of Health;

(42) "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.

(43) "Standard’’ means a health service guideline developed by the authority and instituted under §16-2D-6 of this code.

(44) "State health plan" means a document prepared by the authority that sets forth a strategy for future health service needs in this state.

(45) "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.

(46) "Substantial change to the health services" means:

(A) 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 12-month period before the month in which the service was first offered; or

(B) The termination of a health service offered by or on behalf of the facility but does not include the termination of ambulance service, wellness centers or programs, adult day care or respite care by acute care facilities.

(47) "Telehealth" means the use of electronic information and telecommunications technologies to support long-distance clinical health care, patient and professional health-related education, public health and health administration.

(48) "Third-party payor" means an individual, person, corporation or government entity responsible for payment for patient care services rendered by health care providers.

(49) "To develop" means to undertake those activities which upon their completion will result in the offer of a proposed health service or the incurring of a financial obligation in relation to the offering of such a service.

§16-2D-3. Powers and duties of the authority.

(a) The authority shall:

(1) Administer the certificate of need program;

(2) Review the state health plan, the certificate of need standards, and the cost effectiveness of the certificate of need program and make any amendments and modifications to each that it may deem necessary, no later than September 1, 2017, and biennially thereafter.

(3) Shall adjust the expenditure minimum annually and publish to its website the updated amount on or before December 31, of each year. The expenditure minimum adjustment shall be based on the DRI inflation index.

(4) Create a standing advisory committee to advise and assist in amending the state health plan, the certificate of need standards, and performing the state agencies’ responsibilities.

(b) The authority may:

(1) (A) Order a moratorium upon the offering or development of a health service when criteria and guidelines for evaluating the need for the health service have not yet been adopted or are obsolete or when it determines that the proliferation of the health service may cause an adverse impact on the cost of health services or the health status of the public.

(B) 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 eight.

(2) Approve an emerging health service or technology for one year.

(3) Exempt from certificate of need or annual assessment requirements 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 services.

§16-2D-4. Rulemaking.

(a) The authority shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the following:

(1) Information a person shall provide when applying for a certificate of need;

(2) Information a person shall provide when applying for an exemption;

(3) Process for the issuance of grants and loans to financially vulnerable health care facilities located in underserved areas;

(4) Information a person shall provide in a letter of intent;

(5) Process for an expedited certificate of need;

(6) Determine medically underserved population. The authority may consider unusual local conditions that are a barrier to accessibility or availability of health services. The authority may consider when making its determination of a 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;

(7) Process to review an approved certificate of need; and

(8) Process to review approved proposed health services for which the expenditure maximum is exceeded or is expected to be exceeded.

(b) All of the authority’s rules in effect and not in conflict with the provisions of this article, shall remain in effect until they are amended or rescinded.

§16-2D-4a

Repealed.

Acts, 2016 Reg. Sess., Ch. 195

§16-2D-4b

Repealed.

Acts, 2016 Reg. Sess., Ch. 195

§16-2D-5. Fee; special revenue account; administrative fines.

(a) All fees and other moneys, except administrative fines, received by the authority shall be deposited in a separate special revenue fund in the State Treasury which is continued and shall be known as the “Certificate of Need Program Fund”. Expenditures from this fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending June 30, 2017, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.

(b) Any amounts received as administrative fines imposed pursuant to this article shall be deposited into the General Revenue Fund of the State Treasury.

§16-2D-5a

Repealed.

Acts, 2016 Reg. Sess., Ch. 195

§16-2D-5b

Repealed.

Acts, 2016 Reg. Sess., Ch. 195

§16-2D-5c

Repealed.

Acts, 2016 Reg. Sess., Ch. 195

§16-2D-5d

Repealed.

Acts, 2016 Reg. Sess., Ch. 195

§16-2D-5e

Repealed.

Acts, 2016 Reg. Sess., Ch. 195

§16-2D-5f

Repealed

Acts, 2017 Reg. Sess., Ch. 185.

§16-2D-6. Changes to certificate of need standards.

(a) When the authority proposes a change 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 changes, and a date, time and place for receipt of general public comment. To comply with the public comment requirement of this section, the authority may hold a public hearing or schedule a public comment period for the receipt of written statements or documents.

(b) When changing the certificate of need standards, the authority shall identify relevant criteria contained in section twelve and apply those relevant criteria to the proposed health service in a manner that promotes the public policy goals and legislative findings contained in section one.

(c) The authority shall form task forces to assist it in satisfying its review and reporting requirements. The task forces shall be comprised of representatives of consumers, business, providers, payers and state agencies.

(d) The authority shall coordinate the collection of information needed to allow the authority to develop recommended modifications to certificate of need standards.

(e) The authority 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 authority’s own developed expertise in health planning, data accumulated by the authority or other local, state or federal agency or organization and any other source deemed relevant to the certificate of need standards proposed for change.

 (f) All proposed changes 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 disapproval. Any portions of the amendments or modifications not approved by the Governor may be revised and resubmitted.

(g) 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 authority shall follow the provisions set forth in this section 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 July 1, 2016, 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.

(h) After approval from the Governor, the authority shall prepare a report detailing its review findings and submit the report to the Legislative Oversight Commission on Health and Human Resources Accountability with its annual report before January 1, each year.

§16-2D-7. Determination of reviewability.

A person may make a written request to the authority for it to determine whether a proposed health service is subject to the certificate of need or exemption process.  The authority may require that a person submit certain information in order to make this determination.  A person shall pay a $100 fee to the authority to obtain this determination.  A person is not required to obtain this determination before filing an application for a certificate of need or an exemption.

§16-2D-7a

Repealed.

Acts, 2016 Reg. Sess., Ch. 195

§16-2D-8. Proposed health services that require a certificate of need.

(a) Except as provided in §16-2D-9, §16-2D-10, and §16-2D-11 of this code, the following proposed health services may not be acquired, offered, or developed within this state except upon approval of and receipt of a certificate of need as provided by this article:

(1) The construction, development, acquisition, or other establishment of a health care facility;

(2) The partial or total closure of a health care facility with which a capital expenditure is associated;

(3) (A) An obligation for a capital expenditure incurred by or on behalf of a health care facility in excess of the expenditure minimum; or

(B) An obligation for a capital expenditure incurred by a person to acquire a health care facility.

(4) An obligation for a capital expenditure is considered to be incurred by or on behalf of a health care facility:

(A) When a valid contract is entered into by or on behalf of the health care facility for the construction, acquisition, lease, or financing of a capital asset;

(B) When the health care facility takes formal action to commit its own funds for a construction project undertaken by the health care facility as its own contractor; or

(C) In the case of donated property, on the date on which the gift is completed under state law.

(5) A substantial change to the bed capacity of a health care facility with which a capital expenditure is associated;

(6) The addition of ventilator services by a hospital;

(7) The elimination of health services previously offered on a regular basis by or on behalf of a health care facility which is associated with a capital expenditure;

(8) (A) A substantial change to the bed capacity or health services offered by or on behalf of a health care facility, whether or not the change is associated with a proposed capital expenditure;

(B) If the change is associated with a previous capital expenditure for which a certificate of need was issued; and

(C) If the change will occur within two years after the date the activity which was associated with the previously approved capital expenditure was undertaken.

(9) The acquisition of major medical equipment;

(10) A substantial change in an approved health service for which a certificate of need is in effect;

(11) An expansion of the service area for hospice or home health agency regardless of the time period in which the expansion is contemplated or made; and

(12) The addition of health services offered by or on behalf of a health care facility which were not offered on a regular basis by or on behalf of the health care facility within the 12-month period prior to the time the services would be offered.

(b) The following health services are required to obtain a certificate of need regardless of the minimum expenditure:

(1) Providing radiation therapy;

(2) Providing computed tomography;

(3) Providing positron emission tomography;

(4) Providing cardiac surgery;

(5) Providing fixed magnetic resonance imaging;

(6) Providing comprehensive medical rehabilitation;

(7) Establishing an ambulatory care center;

(8) Establishing an ambulatory surgical center;

(9) Providing diagnostic imaging;

(10) Providing cardiac catheterization services;

(11) Constructing, developing, acquiring, or establishing kidney disease treatment centers, including freestanding hemodialysis units;

(12) Providing megavoltage radiation therapy;

(13) Providing surgical services;

(14) Establishing operating rooms;

(15) Adding acute care beds;

(16) Providing intellectual developmental disabilities services;

(17) Providing organ and tissue transplants;

(18) Establishing an intermediate care facility for individuals with intellectual disabilities;

(19) Providing inpatient services;

(20) Providing hospice services;

(21) Establishing a home health agency;

(22) Providing personal care services; and

(23) (A) Establishing no more than six four-bed transitional intermediate care facilities: Provided, That none of the four-bed sites shall be within five miles of another or adjacent to another behavioral health facility. This subdivision terminates upon the approval of the sixth four-bed intermediate care facility.

(B) Only individuals living in more restrictive institutional settings, in similar settings covered by state-only dollars, or at risk of being institutionalized will be given the choice to move, and they will be placed on the Individuals with Intellectual and Developmental Disabilities (IDD) Waiver Managed Enrollment List. Individuals already on the IDD Waiver Managed Enrollment List who live in a hospital or are in an out-of-state placement will continue to progress toward home- and community-based waiver status and will also be considered for all other community-based options, including, but not limited to, specialized family care and personal care.

(C) The department shall work to find the most integrated placement based upon an individualized assessment. Individuals already on the IDD waiver will not be considered for placement in the 24 new intermediate care beds.

(D) A monitoring committee of not more than 10 members, including a designee of Mountain State Justice, a designee of Disability Rights of West Virginia, a designee of the Statewide Independent Living Council, two members or family of members of the IDD waiver, the Developmental Disabilities Council, the Commissioner of the Bureau of Health and Health Facilities, the Commissioner of the Bureau for Medical Services, and the Commissioner of the Bureau for Children and Families. The secretary of the department shall chair the first meeting of the committee at which time the members shall elect a chairperson. The monitoring committee shall provide guidance on the department’s transitional plans for residents in the 24 intermediate care facility beds and monitor progress toward home- and community-based waiver status and/or utilizing other community-based options and securing the most integrated setting for each individual.

(E) Any savings resulting from individuals moving from more expensive institutional care or out-of-state placements shall be reinvested into home- and community-based services for individuals with intellectual developmental disabilities.

(c) A certificate of need previously approved under this article remains in effect unless revoked by the authority.

§16-2D-9. Health services that cannot be developed.

Notwithstanding §16-2D-8 and §16-2D-11 of this code, these health services require a certificate of need but the authority may not issue a certificate of need to:

(1) A health care facility adding intermediate care or skilled nursing beds to its current licensed bed complement, except as provided in §16-2D-11 of this code;

(2) A person developing, constructing, or replacing a skilled nursing facility except in the case of facilities designed to replace existing beds in existing facilities that may soon be deemed unsafe or facilities utilizing existing licensed beds from existing facilities which are designed to meet the changing health care delivery system;

(3) Add beds in an intermediate care facility for individuals with an intellectual disability, except that prohibition does not apply to an intermediate care facility for individuals with intellectual disabilities 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) including the 24 beds provided in §16-2D-8 of this code;

(4) An opioid treatment program; and

(5) Add licensed substance abuse treatment beds in any county which already has greater than 250 licensed substance abuse treatment beds.

§16-2D-10. Exemptions from certificate of need.

Notwithstanding §16-2D-8 of this code, a person may provide the following health services without obtaining a certificate of need or applying to the authority for approval:

(1) The creation of a private office of one or more licensed health professionals to practice in this state pursuant to §30-1-1 et seq. of this code;

(2) Dispensaries and first-aid stations located within business or industrial establishments maintained solely for the use of employees that does not contain inpatient or resident beds for patients or employees who generally remain in the facility for more than 24 hours;

(3) A place that provides remedial care or treatment of residents or patients conducted only for those who rely solely upon treatment by prayer or spiritual means in accordance with the creed or tenets of any recognized church or religious denomination;

(4) Telehealth;

(5) A private office practice owned or operated by one or more health professionals authorized or organized pursuant to §30-1-1 et seq. or ambulatory health care facility may offer laboratory services or diagnostic imaging to patients regardless of the cost associated with the proposal. A private office practice owned or operated by one or more health professionals authorized or organized pursuant to chapter 30 of this code which has at least seven office practice locations may acquire and utilize one fixed-site magnetic resonance imaging scanner regardless of the cost associated with the proposal. To qualify for this exemption, 75 percent of the magnetic resonance imaging scans are for the patients of the private office practice of the total magnetic resonance imaging scans performed. To qualify for this exemption 75 percent of the laboratory services are for the patients of the practice or ambulatory health care facility of the total laboratory services performed and 75 percent of diagnostic imaging services are for the patients of the practice or ambulatory health care facility of the total imaging services performed. The authority may, at any time, request from the entity information concerning the number of patients who have been provided laboratory services diagnostic imaging, or magnetic resonance imaging services;

 (6) (A) Notwithstanding the provisions of §16-2D-17, any hospital that holds a valid certificate of need issued pursuant to this article, may transfer that certificate of need to a person purchasing that hospital, or all or substantially all of its assets, if the hospital is financially distressed. A hospital is financially distressed if, at the time of its purchase:

(i) It has filed a petition for voluntary bankruptcy;

(ii) It has been the subject of an involuntary petition for bankruptcy;

(iii) It is in receivership;

(iv) It is operating under a forbearance agreement with one or more of its major creditors;

(v) It is in default of its obligations to pay one or more of its major creditors and is in violation of the material, substantive terms of its debt instruments with one or more of its major creditors; or

(vi) It is insolvent: evidenced by balance sheet insolvency and/or the inability to pay its debts as they come due in the ordinary course of business.

(B) A financially distressed hospital which is being purchased pursuant to the provisions of this subsection shall give notice to the authority of the sale 30 days prior to the closing of the transaction and shall file simultaneous with that notice evidence of its financial status. The financial status or distressed condition of a hospital shall be evidenced by the filing of any of the following:

(i) A copy of a forbearance agreement;

(ii) A copy of a petition for voluntary or involuntary bankruptcy;

(iii) Written evidence of receivership, or

(iv) Documentation establishing the requirements of subparagraph (v) or (vi), paragraph (A) of this subdivision. The names of creditors may be redacted by the filing party.

(C) Any substantial change to the capacity of services offered in that hospital made subsequent to that transaction would remain subject to the requirements for the issuance of a certificate of need as otherwise set forth in this article.

(D) Any person purchasing a financially distressed hospital, or all or substantially all of its assets, that has applied for a certificate of need after January 1, 2017, shall qualify for an exemption from certificate of need;

(7) The acquisition by a qualified hospital which is party to an approved cooperative agreement as provided in section §16-29B-28 of this code, of a hospital located within a distance of 20 highway miles of the main campus of the qualified hospital;

(8) The acquisition by a hospital of a physician practice group which owns an ambulatory surgical center as defined in this article;

(9) Hospital services performed at a hospital; and

(10) Constructing, developing, acquiring, or establishing a birthing center :Provided, That a hospital shall be deemed a trauma center, subject to the provisions of §55-7B-9c of this code, for any and all claims arising out of any medical services provided by a hospital or physician to an individual as a result of birth complications at a birthing center.

§16-2D-11. Exemptions from certificate of need which require the submission of information to the authority.

(a) To obtain an exemption under this section a person shall:

(1) File an exemption application; and

(2) Provide a statement detailing which exemption applies and the circumstances justifying the exemption.

(b) Notwithstanding §16-2D-8 of this code and §16-2D-10 of this code and except as provided in §16-2D-9 of this code, the Legislature finds that a need exists and these health services are exempt from the certificate of need process:

(1) The acquisition and utilization of one computed tomography scanner with a purchase price up to $750,000 that is installed in a private office practice where at minimum 75 percent of the scans are performed on the patients of the practice. The private office practice shall obtain and maintain accreditation from the American College of Radiology prior to, and at all times during, the offering of this service. The authority may at any time request from the private office practice information relating to the number of patients who have been provided scans and proof of active and continuous accreditation from the American College of Radiology. If a physician owns or operates a private office practice in more than one location, this exemption shall only apply to the physician’s primary place of business and if a physician wants to expand the offering of this service to include more than one computed topography scanner, he or she shall be required to obtain a certificate of need prior to expanding this service. All current certificates of need issued for computed tomography services, with a required percentage threshold of scans to be performed on patients of the practice in excess of 75 percent, shall be reduced to 75 percent: Provided, That these limitations on the exemption for a private office practice with more than one location shall not apply to a private office practice with more than 20 locations in the state on April 8, 2017.

(2) (A) A health care facility acquiring major medical equipment, adding health services or obligating a capital expenditure to be used solely for research;

(B) To qualify for this exemption, the health care facility shall show that the acquisition, offering, or obligation will not:

(i) Affect the charges of the facility for the provision of medical or other patient care services other than the services which are included in the research;

(ii) Result in a substantial change to the bed capacity of the facility; or

(iii) Result in a substantial change to the health services of the facility.

(C) For purposes of this subdivision, the term "solely for research" includes patient care provided on an occasional and irregular basis and not as part of a research program;

(3) The obligation of a capital expenditure to acquire, either by purchase, lease or comparable arrangement, the real property, equipment or operations of a skilled nursing facility: Provided, That a skilled nursing facility developed pursuant to subdivision (15) of this section and subsequently acquired pursuant to this subdivision may not transfer or sell any of the skilled nursing home beds of the acquired skilled nursing facility until the skilled nursing facility has been in operation for at least 10 years.

(4) Shared health services between two or more hospitals licensed in West Virginia providing health services made available through existing technology that can reasonably be mobile. This exemption does not include providing mobile cardiac catheterization;

(5) The acquisition, development, or establishment of a certified interoperable electronic health record or electronic medical record system;

(6) The addition of forensic beds in a health care facility;

(7) A behavioral health service selected by the Department of Human Services in response to its request for application for services intended to return children currently placed in out-of-state facilities to the state or to prevent placement of children in out-of-state facilities is not subject to a certificate of need;

(8) The replacement of major medical equipment with like equipment, only if the replacement major medical equipment cost is more than the expenditure minimum;

(9) Renovations within a hospital, only if the renovation cost is more than the expenditure minimum. The renovations may not expand the health care facility’s current square footage, incur a substantial change to the health services, or a substantial change to the bed capacity;

(10) Renovations to a skilled nursing facility;

(11) The donation of major medical equipment to replace like equipment for which a certificate of need has been issued and the replacement does not result in a substantial change to health services. This exemption does not include the donation of major medical equipment made to a health care facility by a related organization;

(12) A person providing specialized foster care personal care services to one individual and those services are delivered in the provider’s home;

(13) A hospital converting the use of beds except a hospital may not convert a bed to a skilled nursing home bed and conversion of beds may not result in a substantial change to health services provided by the hospital;

(14) The construction, renovation, maintenance, or operation of a state-owned veterans skilled nursing facilities established pursuant to the provisions of §16-1B-1 et seq. of this code;

(15) To develop and operate a skilled nursing facility with no more than 36 beds in a county that currently is without a skilled nursing facility;

(16) A critical access hospital, designated by the state as a critical access hospital, after meeting all federal eligibility criteria, previously licensed as a hospital and subsequently closed, if it reopens within 10 years of its closure;

(17) The establishing of a heath care facility or offering of health services for children under one year of age suffering from Neonatal Abstinence Syndrome;

(18) The construction, development, acquisition, or other establishment of community mental health and intellectual disability facility;

(19) Providing behavioral health facilities and services;

(20) The construction, development, acquisition, or other establishment of kidney disease treatment centers, including freestanding hemodialysis units but only to a medically underserved population;

(21) The transfer, purchase or sale of intermediate care or skilled nursing beds from a skilled nursing facility or a skilled nursing unit of an acute care hospital to a skilled nursing facility providing intermediate care and skilled nursing services. The Department of Human Service or the Office of Health Facility Licensure and Certification may not create a policy which limits the transfer, purchase or sale of intermediate care or skilled nursing beds from a skilled nursing facility or a skilled nursing unit of an acute care hospital. The transferred beds shall retain the same certification status that existed at the nursing home or hospital skilled nursing unit from which they were acquired. If construction is required to place the transferred beds into the acquiring nursing home, the acquiring nursing home has one year from the date of purchase to commence construction;

(22) The construction, development, acquisition, or other establishment by a health care facility of a nonhealth related project, only if the nonhealth related project cost is more than the expenditure minimum;

(23) The construction, development, acquisition, or other establishment of an alcohol or drug treatment facility and drug and alcohol treatment services unless the construction, development, acquisition, or other establishment is an opioid treatment facility or programs as set forth in subdivision (4) of §16-2D-9 of this code;

(24) Assisted living facilities and services;

(25) The creation, construction, acquisition, or expansion of a community-based nonprofit organization with a community board that provides or will provide primary care services to people without regard to ability to pay and receives approval from the Health Resources and Services Administration; and

(26) The acquisition and utilization of one computed tomography scanner and/or one magnetic resonance imaging scanner with a purchase price of up to $750,000 by a hospital.

§16-2D-12. Minimum criteria for certificate of need reviews.

(a) A certificate of need may only be issued if the proposed health service is:

(1) Found to be needed; and

(2) Consistent with the state health plan, unless there are emergency circumstances that pose a threat to public health.

(b) The authority may not grant a certificate of need unless, after consideration of the appropriateness of the use of existing facilities within this state providing services similar to those being proposed, the authority makes each of the following findings in writing:

(1) That superior alternatives to the services in terms of cost, efficiency and appropriateness do not exist within this state and the development of alternatives is not practicable;

(2) That existing facilities providing services within this state similar to those proposed are being used in an appropriate and efficient manner;

(3) That in the case of new construction, alternatives to new construction, such as modernization or sharing arrangements, have been considered and have been implemented to the maximum extent practicable; and

(4) That patients will experience serious problems in obtaining care within this state of the type proposed in the absence of the proposed health service.

(c) In addition to the written findings required in this section, the authority shall make a written finding regarding the extent to which the proposed health service meets the needs of the medically underserved population, except in the following cases:

(1) Where the proposed health service is one described in subsection (d) of this section to eliminate or prevent certain imminent safety hazards or to comply with certain licensure or accreditation standards; or

(2) Where the proposed health service is a proposed capital expenditure not directly related to the provision of health services or to beds or to major medical equipment.

(d) Notwithstanding the review criteria in subsection (b), an application for a certificate of need shall be approved, if the authority finds that the facility or service with respect to which such capital expenditure is proposed to be made is needed and that the obligation of such capital expenditure is consistent with the state health plan, for a capital expenditure which is required:

(1) To eliminate or prevent imminent safety hazards as defined by federal, state or local fire building or life safety codes, statutes or rules.

(2) To comply with state licensure standards; or

(3) To comply with accreditation or certification standards. Compliance with which is required to receive reimbursement under Title XVIII of the Social Security Act or payments under the state plan for medical assistance approved under Title XIX of such act.

(e) In the case where an application is made by a health care facility to provide ventilator services which have not previously been provided for a nursing facility bed, the authority shall consider the application in terms of the need for the service and whether the cost exceeds the level of current Medicaid services.  A facility providing ventilator services, may not provide a higher level of services for a nursing facility bed without demonstrating that the change in level of service by provision of the additional ventilator services will result in no additional fiscal burden to the state.

(f) The authority shall consider the total fiscal liability to the state for a submitted application.

(g) Criteria for reviews may vary according to the purpose for which a particular review is being conducted or the types of health services being reviewed.

(h) An application for a certificate of need may not be made subject to any criterion not contained in this article or in the certificate of need standards.

§16-2D-13. Procedures for certificate of need reviews.

(a) An application for a certificate of need shall be submitted to the authority prior to the offering or developing of a proposed health service.

(b) A person proposing a proposed health service shall:

(1) Submit a letter of intent ten days prior to submitting the certificate of need application. If the tenth day falls on a weekend or holiday, the certificate of need application shall be filed on the next business day. The information required within the letter of intent shall be detailed by the authority in legislative rule;

(2) Submit the appropriate application fee;

(A) Up to $1,500,000 a fee of $1,500.00;

(B) From $1,500,001 to $5,000,000 a fee of $5,000.00;

(C) From $5,000,001 to $25,000,000 a fee of $25,000.00; and

(D) From $25,000,001 and above a fee of $35,000.00.

(3) Submit to the Director of the Office of Insurance Consumer Advocacy a copy of the application;

(c) The authority shall determine if the submitted application is complete within ten days of receipt of the application. The authority shall provide written notification to the applicant of this determination. If the authority determines an application to be incomplete, the authority may request additional information from the applicant.

(d) Within five days of receipt of a letter of intent, the authority shall provide notification to the public through a newspaper of general circulation in the area where the health service is being proposed and by placing of copy of the letter of intent on its website.  The newspaper notice shall contain a statement that, further information regarding the application is on the authority’s web site.

(e) The authority may batch completed applications for review on the fifteenth day of the month or the last day of month in which the application is deemed complete.

(f) When the application is submitted, ten days after filing the letter of intent, the application shall be placed on the authority’s website.

(g) An affected party has thirty days starting from the date the application is batched to request the authority hold an administrative hearing.

(1) A hearing order shall be approved by the authority within fifteen days from the last day an affected person may requests an administrative hearing on a certificate of need application.

(2) A hearing shall take place no later than three months from that date the hearing order was approved by the authority.

(3) The authority shall conduct the administrative hearing in accordance with administrative hearing requirements in section twelve, article twenty-nine-b of this chapter and article five, chapter twenty-nine-a of this code.

(4) In the administrative hearing an affected person has the right to be represented by counsel and to present oral or written arguments and evidence relevant to the matter which is the subject of the public hearing. An affected person may conduct reasonable questioning of persons who make factual allegations relevant to its certificate of need application.

(5) The authority shall maintain a verbatim record of the administrative hearing.

(6) After the commencement of the administrative hearing on the application and before a decision is made with respect to it, there may be no ex parte contacts between:

(A) The applicant for the certificate of need, any person acting on behalf of the applicant or holder of a certificate of need or any person opposed to the issuance of a certificate for the applicant; and

(B) Any person in the authority who exercises any responsibility respecting the application.

(7) The authority may not impose fees to hold the administrative hearing.

(8) The authority shall render a decision within forty-five days of the conclusion of the administrative hearing.

(h) If an administrative hearing is not conducted during the review of an application, the authority shall provide a file closing date five days after an affected party may no longer request an administrative hearing, after which date no other factual information or evidence may be considered in the determination of the application for the certificate of need. A detailed itemization of documents in the authority’s file on a proposed health service shall, on request, be made available by the authority at any time before the file closing date.

(i) The extent of additional information received by the authority from the applicant for a certificate of need after a review has begun on the applicant’s proposed health service, with respect to the impact on the proposed health service and additional information which is received by the authority from the applicant, may be cause for the authority to determine the application to be a new proposal, subject to a new review cycle.

(j) The authority shall have five days to provide the written status update upon written request by the applicant or an affected person.  The status update shall include the findings made in the course of the review and any other appropriate information relating to the review.

(k) (1) The authority shall annually prepare and publish to its website, a status report of each ongoing and completed certificate of need application reviews.

(2) For a status report of an ongoing review, the authority shall include in its report all findings made during the course of the review and any other appropriate information relating to the review.

(3) For a status report of a completed review, the authority shall include in its report all the findings made during the course of the review and its detailed reasoning for its final decision.

(l) The authority shall provide for access by the public to all applications reviewed by the authority and to all other pertinent written materials essential to agency review.

§16-2D-14. Procedure for an uncontested application for a certificate of need.

The authority shall review an uncontested certificate of need application within sixty days from the date the application is batched.  An uncontested application is deemed approved if the review is not completed within sixty days from the date the application is batched, unless an extension, up to fifteen days is requested by the applicant.

§16-2D-15. Authority to render final decision; issue certificate of need; write findings; specify capital expenditure maximum.

(a) The authority shall render a final decision on an application for a certificate of need in the form of an approval, a denial or an approval with conditions.  The final decision with respect to a certificate of need shall be based solely on:

(1) The authority’s review conducted in accordance with procedures and criteria in this article and the certificate of need standards; and

(2) The record established in the administrative hearing held with respect to the certificate of need.

(b)  Approval with conditions does not give the authority the ability to mandate a health service not proposed by the health care facility.  Issuance of a certificate of need or exemption may not be made subject to any condition unless the condition directly relates to criteria in this article, or in the certificate of need standards.  Conditions may be imposed upon the operations of the health care facility for not longer than a three-year period.

(c) The authority shall send its decision along with written findings to the person proposing the proposed health service or exemption and shall make it available to others upon request.

(d) In the case of a final decision to approve or approve with conditions a proposal for a proposed health service, the authority shall issue a certificate of need to the person proposing the proposed health service.

(e) The authority shall specify in the certificate of need the maximum amount of capital expenditures which may be obligated.  The authority shall adopt legislative rules pursuant to section four to prescribe the method used to determine capital expenditure maximums and a process to review the implementation of an approved certificate of need for a proposed health service for which the capital expenditure maximum is exceeded or is expected to be exceeded.

§16-2D-16. Appeal of certificate of need a decision.

(a) An applicant or an affected person may appeal the authority’s final decision in a certificate of need review to the Office of Judges. The request shall be received within thirty days after the date of the authority’s decision.  The appeal hearing shall commence within thirty days of receipt of the request.

(b) The Office of Judges shall conduct its proceedings in conformance with the West Virginia Rules of Civil Procedure for trial courts of record and the local rules for use in the civil courts of Kanawha County and shall review appeals in accordance with the provisions governing the judicial review of contested administrative cases in article five, chapter twenty-nine-a of this code.

(c) The decision of the Office of Judges shall be made in writing within forty-five days after the conclusion of the hearing.

(d) The written findings of the Office of Judges shall be sent to the person who requested the appeal, to the person proposing the proposed health service and to the authority, and shall be made available by the authority to others upon request.

(e) The decision of the Office of Judges shall be considered the final decision of the authority; however, the Office of Judges may remand the matter to the authority for further action or consideration.

(f) Upon the entry of a final decision by the Office of Judges, an affected person may within thirty days after the date of the decision of the Office of Judges make an appeal in the circuit court of Kanawha County. The decision of the Office of Judges shall be reviewed by the circuit court in accordance with the provisions for the judicial review of administrative decisions contained in article five, chapter twenty-nine-a of this code.

§16-2D-17. Nontransference, time period compliance and withdrawal of certificate of need.

(a) A certificate of need is nontransferable and is valid for a maximum of one year from the date of issuance. Upon the expiration of the certificate or during the certification period, the person proposing the proposed health service shall provide the authority information on the development of the project as the authority may request. The authority shall periodically monitor capital expenditures obligated under certificates, determine whether sufficient progress is being made in meeting the timetable specified in the approved application for the certificate and whether there has been compliance with the application and any conditions of certification. The certificate of need may be extended by the authority for additional periods of time as are reasonably necessary to expeditiously complete the project.

(b) A certificate of need may no longer be in effect, and may no longer be required, after written notice of substantial compliance with the approved application and any conditions of certification is issued to the applicant, after the activity is undertaken for which the certificate of need was issued, and after the authority is provided written notice of such undertaking.

(c) A person proposing a proposed health service may not be issued a license, if applicable, until the authority has issued a written notice of substantial compliance with the approved application and any conditions of certification, nor may a proposed health service be used until the person has received such notice. A proposed health service may not be found to be in substantial compliance with the approved application and any conditions of certification if there is a substantial change in the approved proposed health service for which change a certificate of need has not been issued.

(d) (1) A certificate of need may be withdrawn by the authority for:

(A) Noncompliance with any conditions of certification;

(B) A substantial change in an approved proposed health service for which change a certificate of need has not been issued;

(C) Material misrepresentation by an applicant upon which the authority relied in making its decision; or

(D) Other reasons that may be established by the authority in legislative rules adopted pursuant to section four of this article.

(2) Any decision of the authority to withdraw a certificate of need shall be based solely on:

(A) The provisions of this article and on legislative rules adopted in accordance with section four of this article; and

(B) The record established in administrative hearing held with respect to the authority’s proposal to withdraw the certificate.

(3) In the case of a proposed withdrawal of a certificate of need:

(A) After commencement of an administrative hearing on the authority’s proposal to withdraw a certificate of need and before a decision is made on withdrawal, there may be no ex parte contacts between:

(i) The holder of the certificate of need, any person acting on behalf of the holder, or any person in favor of the withdrawal; and

(ii) Any person in the authority who exercises responsibility respecting withdrawal of the certificate;

(B) The authority shall follow the review procedure established in section thirteen; and

(C) Appeals of withdrawals of certificates of need shall be made pursuant to section sixteen of this article.

(4) A proposed health service may not be acquired, offered, or developed within this state if a certificate of need authorizing that proposed health service has been withdrawn by the authority and the acquisition, offering, or developing of the proposed health service is subject to review under this article.

§16-2D-18. Denial or revocation of license for operating without certificate.

A person who violates the provisions of this article is subject to denial or revocation of a license, in whole or in part, to operate a proposed health service or health care facility. Upon a showing to the authority that a person is offering or developing a proposed health service without having first obtained a certificate of need or that a person is otherwise in violation of the provisions of this article, the authority shall provide a person with written notice which shall state the nature of the violation and the time and place at which the person shall appear to show good cause why its license should not be revoked or denied, at which time and place the person shall be afforded a reasonable opportunity to present testimony and other evidence in support of the person’s position. If, thereafter, the authority determines that the person's license to operate the health service or health care facility should be revoked or denied, the authority shall issue a written order to the appropriate licensing agency of the state, requiring that the person's license to operate the proposed health service or health care facility be revoked or denied.  The order is binding upon the licensing agency.

§16-2D-19. Injunctive relief; civil penalty.

(a) A person who acquires, offers or develops a proposed health service for which a certificate of need is required without first having a certificate of need therefore or violates any other provision of this article, or any legislative rule promulgated thereunder, the authority may maintain a civil action in the circuit court of the county where the violation has occurred, or where the person may be found, to enjoin, restrain or prevent the violation. An injunction bond is not required to be filed.

(b) The authority may assess a civil penalty for violation of this article.

(c) Upon the authority determining that there is probable cause to believe that a person is in violation of the provisions of this article, or any lawful rule promulgated thereunder, the authority shall provide the person with written notice which states the nature of the alleged violation and the time and place at which an administrative hearing shall take place.  The hearing shall be conducted in accordance with the administrative hearing provisions of article five, chapter twenty-nine-a of this code.

(d) If the authority determines that the person is in violation of the provisions of this article or legislative rule, the authority shall assess a civil penalty of not less than $500 nor more than $25,000.

(e) In determining the amount of the penalty, the authority shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage.

(f) A person assessed shall be notified of the assessment in writing, and the notice shall specify the reasons for the assessment. If the person assessed fails to pay the amount of the assessment to the authority within thirty days, the authority may institute a civil action in the circuit court of the county where the violation has occurred, or where the person may be found to recover the amount of the assessment. In the civil action, the scope of the court's review of the authority’s action, which shall include a review of the amount of the assessment, shall be as provided in article five, chapter twenty-nine-a of this code for the judicial review of contested administrative cases.

§16-2D-20. Statute of limitations.

The authority has a period of three years to correct violations of the provisions of this article. The three-year period begins from the date the authority knows or should have known of the violation. Each new act of a continuing violation shall provide a basis for restarting the calculation of the limitations period.

§16-2E-1. Definitions.

For the purpose of this article:

"Birthing center" means a type of facility which is a building, house or the equivalent organized to provide facilities and staff to support a birthing service for pregnant clients.

§16-2E-2. Birthing centers to obtain license, application, fees, suspension, or revocation.

No person, partnership, association or corporation, or any local governmental unit or any division, department, board or agency thereof may operate a birthing center unless such operation shall have been approved and licensed by the state director of health in accordance with the provisions of this article and the rules and regulations lawfully promulgated hereunder provided that all birthing centers which are in operation or which have received a certificate of need valid as of the date of passage of this act shall be deemed to have been so approved and shall be issued a license within thirty days of passage of this act.

Any person, partnership, association or corporation, or any local governmental unit or any division, department, board or agency thereof desiring a license hereunder shall file with the department of health an application in such form as the department shall prescribe and furnish accompanied by a fee of $10. Information received by the department of health under the provisions of this section shall be confidential. The director of health is authorized to issue licenses for the operation of birthing centers which are found to comply with the provisions of this article and with all rules and regulations promulgated by the department. The license issued shall not be transferred or assignable. The director of health is authorized to suspend or revoke a license issued hereunder if the provisions of this article or of the rules and regulations are violated.

Before any such license is suspended or revoked, however, written notice shall be given the licensee, stating the grounds of the complaint, and the date, time and place set for the hearing on the complaint, which date shall not be less than thirty days from the time notice is given. Such notice shall be sent by registered mail to the licensee at the address where the institution concerned is located. The licensee shall be entitled to be represented by legal counsel at the hearing.

If a license is revoked as herein provided, a new application for a license shall be considered by the director of health if, when and after, the conditions upon which revocation was based have been corrected and evidence of this fact has been furnished. A new license shall then be granted after proper inspection has been made and all provisions of this article and rules and regulations promulgated hereunder have been satisfied.

All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern any hearing authorized and required by the provisions of this article and the administrative procedure in connection with and following any such hearing, with like effect as if the provisions of said article five were set forth in extenso in this section.

The court shall have the power to affirm, modify or reverse the decision of the department and either the applicant or licensee or the department may appeal from the court's decision to the Supreme Court of Appeals. Pending the final disposition of the matter the status quo of the applicant or licensee shall be preserved.

Any applicant or licensee who is dissatisfied with the decision of the state department of health as a result of the hearing provided in this section may, within thirty days after receiving notice of the decision, appeal to the circuit court, in term or in vacation, of the county in which the applicant or licensee is located for judicial review of the decision.

§16-2E-3. State director of health to establish rules and regulations; legislative findings; emergency filing.

The director of health shall promulgate rules and regulations not in conflict with any provision of this article, as it finds necessary in order to ensure adequate care and accommodations for consumers of birthing centers. In promulgating such regulations the director shall be limited to simple, necessary provisions which shall not have the effect of hampering the development and licensure of birthing centers. Such regulations shall not address acceptable site characteristics such as the number of minutes of travel time between a birthing center and a hospital, or physical environment, such as acceptable levels of temperature of any refrigerator found in a birthing center, or clinical equipment, such as the number and kind of clocks which a birthing center must have on the premises. Such regulations shall require that all birthing centers submit satisfactory evidence that the center has implemented the paternity program created pursuant to section thirteen of this article along with any application for licensure.

The Legislature hereby finds and declares that it is in the public interest to encourage the development of birthing centers for the purpose of providing an alternative method of birth and therefore, in order to provide for the licensing of such birthing centers to prevent substantial harm to the public interest because of preexisting delay, within sixty days of passage of this article, the director of health shall proceed to promulgate such rules and regulations under the provisions of section fifteen, article three, chapter twenty-nine-a of this code.

§16-2E-4. Insurance.

Not later than July 1, 1983, every policy or contract of individual accident and sickness insurance covered under the provision of article fifteen, chapter thirty-three, or policy or contract of group accident and sickness insurance covered under the provisions of article sixteen of said chapter, including, but not limited to, any subscriber contract issued by a corporation organized pursuant to article twenty-four of said chapter, shall include benefits to all subscribers and members for birthing center service charges, and for care rendered therein by a licensed nurse midwife or midwife as this occupation is defined in section one, article fifteen, chapter thirty of this code, and which care is within the scope of duties for such licensed nurse midwife or midwife as permitted by the provisions of section seven, article fifteen of said chapter thirty.

§16-2E-5. Violations; penalties; injunction.

Any person, partnership, association or corporation, and any local governmental unit or any division, department, board or agency thereof establishing, conducting, managing or operating a birthing center without first obtaining a license therefor as herein provided, or violating any provisions of this article or any rule or regulation lawfully promulgated thereunder, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished for the first offense by a fine of not more than $100, or by imprisonment in the county jail for a period of not more than ninety days, or by both such fine and imprisonment, in the discretion of the court. For each subsequent offense the fine may be increased to not more than $500, with imprisonment in the county jail for a period of not more than ninety days, or both such fine and imprisonment, in the discretion of the court. Each day of a continuing violation after conviction shall be considered a separate offense.

Notwithstanding the existence or pursuit of any other remedy, the director may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, corporation, or any local governmental unit, or any division, department, board or agency thereof, to restrain or prevent the establishment, conduct, management or operation of any birthing center without first obtaining a license therefor in the manner hereinbefore provided.

§16-2F-1. Legislative findings and intent.

(a) The Legislature finds that immature minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences of their actions; that the medical, emotional and psychological consequences of abortion are serious and of indeterminate duration, particularly when the patient is immature; that in its current abortion policy as expressed in Bellotti v. Baird, 443 U.S. 622 (1979), H. L. v. Matheson, 450 U.S. 398 (1981), and Hodgson v. Minnesota, 497 U.S. 417, (1990), the United States Supreme Court held that notification of a parent with a judicial waiver procedure is Constitutional; that parents ordinarily possess information essential to a physician’s exercise of his or her best medical judgment concerning their child; and that parents who are aware that their minor daughter has had an abortion may better ensure that the minor receives adequate medical attention after her abortion.

(b) The Legislature further finds that parental consultation regarding abortion is usually desirable and in the best interests of the minor.

(c) The Legislature further finds there exists important and compelling state interests:

(1) In protecting minors against their own immaturity,

(2) In fostering the family structure and preserving it as a viable social unit, and

(3) In protecting the rights of parents to rear their own children in their own household.

(d) It is, therefore, the intent of the Legislature to further these important and compelling state interests by enacting this parental notice provision.

§16-2F-2. Definitions.

For purposes of this article, unless the context in which used clearly requires otherwise:

As used in this article:

(1) “Abortion” means the use of any instrument, medicine, drug, or any other substance or device with intent to terminate the pregnancy of a female known to be pregnant and with intent to cause the expulsion of a fetus other than by live birth. This article does not prevent the prescription, sale, or transfer of intrauterine contraceptive devices, other contraceptive devices, or other generally medically accepted contraceptive devices, instruments, medicines or drugs for a female who is not known to be pregnant and for whom the contraceptive devices, instruments, medicines or drugs were prescribed by a physician solely for contraceptive purposes and not for the purpose of inducing or causing the termination of a known pregnancy.

(2) “Medical emergency” means the same as that term is defined in §16-2M-2 of this code.

(3) “Secretary” means the Secretary of the West Virginia Department of Health and Human Resources.

(4) “Unemancipated minor” means any person less than 18 years of age who is not, or has not been, married, who is under the care, custody, and control of the person’s parent or parents, guardian, or court of competent jurisdiction pursuant to applicable federal law or as provided in §49-4-115 of this code.

§16-2F-3. Parental notification required for abortions performed on unemancipated minors.

 (a) A physician may not perform an abortion upon an unemancipated minor until notice of the pending abortion as required by this section is complete.

(b) A physician or his or her agent may personally give notice directly, in person, by telephone or by letter to the parent, the guardian or conservator of the unemancipated minor at their usual place of residence and shall be delivered personally by the physician or his or her agent. Upon delivery of the notice, forty-eight hours shall pass until the abortion may be performed.

(c) A physician or his or her agent may provide notice by certified mail addressed to the parent, the guardian or conservator of the unemancipated minor at their usual place of residence, return receipt requested. The delivery shall be sent restricted delivery assuring that the letter is delivered only to the addressee. Time of delivery shall be deemed to occur at twelve o’clock noon on the next day on which regular mail delivery takes place unless. Upon delivery of the notice, forty-eight hours shall pass until the abortion may be performed.

(d) Notice may be waived if the person entitled to notice certifies in writing that he or she has been notified.

§16-2F-4. Process to obtain waiver of notification.

(a) An unemancipated minor who objects to the notice being given to her parent or legal guardian may petition for a waiver of the notice to the circuit court of the county in which the unemancipated minor resides or in which the abortion is to be performed, or to the judge of either of such courts.

(b) The petition need not be made in any specific form and shall be sufficient if it fairly sets forth the facts and circumstances of the matter, but shall contain the following information:

(i) The age of the unemancipated minor and her educational level;

(ii) The county and state in which she resides; and

(iii) A brief statement of unemancipated minor’s reason or reasons for the desired waiver of notification of the parent or guardian of such unemancipated minor.

No such petition shall be dismissed nor shall any hearing thereon be refused because of any defect in the form of the petition.

(c) The Attorney General shall prepare suggested form petitions and accompanying instructions and shall make the same available to the clerks of the circuit courts. The clerks shall make the form petitions and instructions available in the clerks office.

(d) The proceedings held pursuant to this article shall be confidential and the court shall conduct the proceedings in camera. The court shall inform the unemancipated minor of her right to be represented by counsel. If the unemancipated minor is without the requisite funds to retain the services of an attorney, the court will appoint an attorney to represent the unemancipated minor’s interest in the matter. If the unemancipated minor desires the services of an attorney, an attorney shall be appointed to represent the unemancipated minor, if the unemancipated minor advises the court under oath or affidavit that the unemancipated minor is financially unable to retain counsel. An attorney appointed to represent the unemancipated minor shall be appointed and paid for his services pursuant to the provisions of article twenty-one, chapter twenty-nine of this code. The pay shall not exceed the sum of $100.

(e) The court shall conduct a hearing upon the petition without delay, but may not exceed the next succeeding judicial day. The court shall render its decision immediately upon its submission and, its written order not later than twenty-four hours and entered in the record by the clerk of the court. All testimony, documents, evidence, petition, orders entered thereon and all records relating to the matter shall be sealed by the clerk and shall not be opened to any person except upon order of the court upon a showing of good cause. A separate order book for the purposes of this article shall be maintained by the clerk and shall be sealed and not open to inspection by any person save upon order of the court for good cause shown.

(f) Notice as required by section three of this article shall be ordered waived by the court if the court finds either:

(1) That the unemaciated minor is mature and well informed sufficiently to make the decision to proceed with the abortion independently and without the notification or involvement of her parent or legal guardian; or

(2) That notification to the person or persons to whom notification would otherwise be required would not be in the best interest of the unemancipated minor.

 (g) A confidential appeal shall be available to any unemancipated minor to whom a court denies an order authorizing an abortion without notification. An order authorizing an abortion without notification may not be appealed. Access to the trial court and the Supreme Court of Appeals shall be given to an unemancipated minor.

(h) Filing fees are not required of any unemancipated minor who avails herself of any of the procedures provided by this section.

§16-2F-5. Emergency exception from notification requirements.

(a) The notification requirements of section three of this article do not apply where the attending physician certifies that there is a need for an abortion to be performed due to a medical emergency. A description of the medical emergency shall be maintained with the unemancipated minor’s medical records.

(b) If the physician who is to perform the abortion concludes under subsection (a) of this section that a medical emergency exists and that there is insufficient time to provide the notice required by section three of this article, the physician shall make a reasonable effort to inform, in person or by telephone, the parent, managing conservator, or guardian of the unemancipated minor within 24 hours after the time a medical emergency abortion is performed on the minor of:

(1) The performance of the abortion; and

(2) The basis for the physician’s determination that a medical emergency existed that required the performance of a medical emergency abortion without fulfilling the requirements of section three.

(c) A physician who performs an abortion under the circumstances described in subsection (a) of this section shall, not later than 48 hours after the abortion is performed, send a written notice that a medical emergency occurred and that the parent, managing conservator, or guardian may contact the physician for more information and medical records, to the last known address of the parent, managing conservator, or guardian by certified mail, restricted delivery, return receipt requested. The physician may rely on last known address information if a reasonable and prudent person, under similar circumstances, would rely on the information as sufficient evidence that the parent, managing conservator, or guardian resides at that address. The physician shall keep in the minor’s medical record:

(1) The return receipt from the written notice; or

(2) If the notice was returned as undeliverable, the notice.

(d) A physician who performs an abortion on an unemancipated minor during a medical emergency as described in subsection (a) of this section shall execute for inclusion in the medical record of the minor an affidavit that explains the specific medical emergency that necessitated the immediate abortion.

§16-2F-6. Reporting requirements for physicians.

(a) A physician performing an abortion upon an unemancipated minor shall provide the secretary a written report of the procedure within thirty days after having performed the abortion. The following information, in addition to any other information which may be required by the secretary, regarding an unemancipated minor receiving the abortion shall be included in the reporting form:

(1) Age;

(2) Educational level;

(3) Previous pregnancies;

(4) Previous live births;

(5) Previous abortions;

(6) Complications, if any, of the abortion being reported;

(7) Reason for waiver of notification, if such notice was waived; and

(8) The city and county in which the abortion was performed.

(b) The report shall not contain the name, address or other information by which the unemancipated minor receiving the abortion may be identified.

§16-2F-7. Article not to be construed to require abortion.

Nothing in this article, nor in any order issued pursuant thereto, shall require that a physician perform an abortion or that any person be required to assist in the performance of an abortion if such physician or person, for any reason, medical or otherwise, does not wish to perform or assist in such abortion.

§16-2F-8. Penalties.

(a) Any physician or other licensed medical practitioner who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to patients, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

(b) A person, not subject to subsection (a) of this section, who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have engaged in the unauthorized practice of medicine in violation of section thirteen, article three, chapter thirty of this code, and upon conviction, subject to the penalties contained in that section.

(c) In addition to the penalties set forth in subsections (a) and (b) of this section, a patient may seek any remedy otherwise available to such patient by applicable law.

(d) No penalty may be assessed against any patient upon whom an abortion is performed or induced or attempted to be performed or induced.

§16-2F-9. Severability.

Effective from the reenactment of this section during the third extraordinary session of the Legislature, 2022, this article is of no force or effect unless any provision of §16-2R-1 et seq. of this code is judicially determined to be unconstitutional.

§16-2G-1. Voucher or coupon redemption and payment.

With respect to the vouchers or coupons or drafts authorized by the bureau of public health in the administration of the special supplementary food program for women, infants and children, commonly known as the WIC program, under the auspices and guidelines of the United States Department of Agriculture, such vouchers or coupons or drafts, when received by a vendor from a holder thereof in exchange for food, food stuffs, or authorized goods or services, may be deposited by the vendor in any federally insured bank in this state for collection and payment thereof, and such bank shall accept the same as equivalent to a negotiable instrument from a holder in due course pursuant to chapter forty-six of this code, and shall collect the funds for such vouchers or coupons so received.

All moneys received from the United States Department of Agriculture under the WIC program, except for moneys to be used for administration, shall be deposited by the commissioner of the bureau of public health in a special account in a federally insured bank in this state, and notwithstanding other provisions of this code to the contrary, this special account may be funded by the commissioner of the bureau of public health as a special advance payment imprest funds account to be reconciled at least annually by the state Treasurer from which said bank can daily make required wire transfers to pay each day's presentments of vouchers or coupons or drafts. The commissioner of the bureau of public health shall select the bank by competitive bidding in the same manner as the state Treasurer selects depository banks for state funds, subject to applicable federal laws or regulations governing such selection.

The provisions of this section enacted in the year one thousand nine hundred eighty-nine shall take effect on April 1, one thousand nine hundred ninety, except that the commissioner shall commence procedures for the selection of the bank and for implementation of the other provisions of this section upon the passage hereof.

Nothing in this section shall make such vouchers or coupons or drafts negotiable instruments for any purpose other than expressly set forth herein or as permitted by applicable federal laws or regulations.

§16-2H-1. Short title.

This article shall be known and may be cited as the "Primary Care Support Program Act".

§16-2H-2. Primary Care Support Program.

(a) There is created the Primary Care Support Program within the Bureau of Public Health. The program shall provide technical and organizational assistance to community-based primary care services.

(b) The Primary Care Support Program shall create and administer a Primary Care Grant Fund to grant money to federally qualified health centers and federally qualified health center look-alikes, and secure federal medical assistance percentage funding. Federally qualified health center look-alikes already receiving grant funding at the time this program is created shall continue to receive grant funding annually. Upon approval by the secretary, federally qualified health centers in need of immediate financial assistance may be granted funding annually. All funds designated to federally qualified health centers may be transferred to Medicaid for the purpose of securing federal medical assistance percentage funding.

Additionally, the secretary may use certain portions of funds within this account for activities in support of rural and primary care. There is created a special revenue fund in the State Treasury to be known as the Primary Care Support Fund into which all appropriations, payments, and interest to the fund created herein shall be deposited, to be held and disbursed according to law.

 (c) The Primary Care Support Program shall conduct and make available upon request an annual primary care report which shall consist of total West Virginia Medicaid primary care expenditures as a percentage of total West Virginia Medicaid expenditures.

(d) The Department of Health shall promulgate rules in accordance with §29A-3-1 et seq. of this code to implement the provisions of this article, and shall approve all loans, grants, and disbursements of money authorized by this article.

§16-2H-3

Repealed

Acts, 2019 Reg. Sess., Ch. 212.

§16-2H-4

Repealed

Acts, 2019 Reg. Sess., Ch. 212.

§16-2I-1. Definitions.

For the purposes of this article, the words or phrases defined in this section have these meanings ascribed to them.

“Abortion” means the same as that term is defined in §16-2F-2 of this code.

“Attempt to perform an abortion” means the same as that term is defined in §16-2M-2 of this code.

“Chemical abortion” means the use or prescription of an abortion-inducing drug dispensed with the intent to cause an abortion.

“Licensed medical professional” means the same as that term is defined in §16-2P-1 of this code.

“Medical emergency” means any condition which, in the reasonable medical judgment of the patient’s physician, so complicates the medical condition of a pregnant female as to necessitate the immediate termination of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the female will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

“Physician” means the same as that term is defined in §16-2M-2 of this code.

“Probable gestational age of the embryo or fetus” means what, in the judgment of the physician, will with reasonable probability be the gestational age of the embryo or fetus at the time the abortion is planned to be performed.

“Reasonable medical judgement” means the same as that term is defined in §16-2M-2 of this code.

“Stable Internet website” means a website that, to the extent reasonably practicable, is safeguarded from having its content altered by another other than the Department of Health and Human Resources.

§16-2I-2. Informed consent.

An abortion may not be performed in this state except with the voluntary and informed consent of the female upon whom the abortion is to be performed. Except in the case of a medical emergency, consent to an abortion is voluntary and informed if, and only if:

(a) The female is told the following, by telephone or in person, by the physician or the licensed medical professional to whom the responsibility has been delegated by the physician who is to perform the abortion at least 24 hours before the abortion:

(1) The particular medical risks associated with the particular abortion procedure to be employed, including, when medically accurate, the risks of infection, hemorrhage, danger to subsequent pregnancies, and infertility;

(2) The probable gestational age of the embryo or fetus at the time the abortion is to be performed;

(3) The medical risks associated with carrying her child to term; and

(4) If a chemical abortion involving the two-drug process of mifepristone is initiated and then a prostaglandin such as misoprostol is planned to be used at a later time, the female shall be informed that:

(A) Some suggest that it may be possible to counteract the intended effects of a mifepristone chemical abortion by taking progesterone if the female changes her mind, before taking the second drug, but this process has not been approved by the Food and Drug Administration.

(B) After the first drug involved in the two-drug process is dispensed in a mifepristone chemical abortion, the physician or agent of the physician shall provide written medical discharge instructions to the pregnant female which shall include the statement:

“If you change your mind and decide to try to counteract the intended effects of a mifepristone chemical abortion, if the second pill has not been taken, please consult with your physician.

(i) You might experience a complete abortion without ever taking misoprostol;

(ii) You might experience a missed abortion, which means the fetus is no longer viable, but the fetus did not leave your body; or

(iii) It is possible that your pregnancy may continue; and

(iv)You should consult with your physician.”

(C) The female shall certify, as part of the informed consent process for any medical procedure, that she has been informed about the above possibilities regarding a chemical abortion.

(D) Notwithstanding any law to the contrary, a physician acting in conformity with the informed consent provisions of this section relating to the possibility of counteracting the intended effects of a chemical abortion, or a physician prescribing a non-Food and Drug Administration approved drug therapy to counteract a chemical abortion is not liable for any loss, damage, physical injury, or death arising from any information provided by the physician related to counteracting the intended effects of a chemical abortion or arising from prescribing a non-Food and Drug Administration approved drug therapy to counteract a chemical abortion.

The information required by this subsection may be provided by telephone without conducting a physical examination or tests of the patient, in which case the information required to be provided may be based on facts supplied by the female to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician and whatever other relevant information is reasonably available to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician. It may not be provided by a tape recording, but must be provided during a consultation in which the physician or licensed health care professional to whom the responsibility has been delegated by the physician is able to ask questions of the female and the female is able to ask questions of the physician or the licensed health care professional to whom the responsibility has been delegated by the physician.

If a physical examination, tests or the availability of other information to the physician or other licensed health care professional to whom the responsibility has been delegated by the physician subsequently indicate, in the medical judgment of the physician or the licensed health care professional to whom the responsibility has been delegated by the physician, a revision of the information previously supplied to the patient, that revised information may be communicated to the patient at any time before the performance of the abortion procedure.

Nothing in this section may be construed to preclude provision of required information in a language understood by the patient through a translator.

(b) The female is informed, by telephone or in person, by the physician who is to perform the abortion, or by an agent of the physician, at least 24 hours before the abortion procedure:

(1) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care through governmental or private entities;

(2) That the father, if his identity can be determined, is liable to assist in the support of her child based upon his ability to pay even in instances in which the father has offered to pay for the abortion;

(3) That she has the right to review the printed materials described in §16-2I-3 of this code, that these materials are available on a state-sponsored website and the website address; and

(4) That the female will be presented with a form which she will be required to execute prior to the abortion procedure that is available pursuant to §16-2I-3 of this code, and that the form to be presented will inform her of the opportunity to view the ultrasound image and her right to view or decline to view the ultrasound image, if an ultrasound is performed.

The physician or an agent of the physician shall orally inform the female that the materials have been provided by the State of West Virginia and that they describe the embryo or fetus and list agencies and entities which offer alternatives to abortion.

If the female chooses to view the materials other than on the website, then they shall either be provided to her at least 24 hours before the abortion or mailed to her at least 72 hours before the abortion by first class mail in an unmarked envelope.

The information required by this subsection may be provided by a tape recording if provision is made to record or otherwise register specifically whether the female does or does not choose to have the printed materials given or mailed to her.

(c) The form required pursuant to subdivision (b)(4) of this section shall include the following information:

(1) It is a female’s decision whether or not to undergo any ultrasound imaging procedure in consultation with her health care provider;

(2) If an ultrasound is performed in conjunction with the performance of an abortion procedure, the female has the right to view or to decline to view the image; and

(3) That the female has been previously informed of her opportunity to view the ultrasound image and her right to view or decline to view the ultrasound image. The female shall certify her choice on this form prior to the abortion procedure being performed.

The female shall certify in writing, before the abortion, that the information described in subsections (a) and (b) of this section has been provided to her and that she has been informed of her opportunity to review the information referred to in subdivision (b)(3) of this section.

Before performing the abortion procedure, the physician who is to perform the abortion or the physician’s agent shall obtain a copy of the executed certification required by the provisions of subsections (b) and (c) of this section.

§16-2I-3. Printed information.

(a) Within 90 days of the effective date of this article, the Secretary of the Department of Health and Human Resources shall cause to be published, in English and in each language which is the primary language of two percent or more of the state’s population, as determined by the most recent decennial census performed by the U.S. census bureau, and shall cause to be available on the website provided in §16-2I-4 of this code the following printed materials in such a way as to ensure that the information is easily comprehensible:

(1) Geographically indexed materials designed to inform the reader of public and private agencies and services available to assist a female through pregnancy, upon childbirth and while the child is dependent, including adoption agencies, which shall include a comprehensive list of the agencies available, a description of the services they offer and a description of the manner, including telephone numbers. At the option of the Secretary of Health and Human Resources, a 24-hour-a-day telephone number may be established with the number being published in such a way as to maximize public awareness of its existence which may be called to obtain a list and description of agencies in the locality of the caller and of the services they offer;

(2) Materials designed to inform the female of the probable anatomical and physiological characteristics of the embryo or fetus at two-week gestational increments from the time when a female can be known to be pregnant to full term, including any relevant information on the possibility of the embryo or fetus’s survival and pictures or drawings representing the development of an embryo or fetus at two-week gestational increments: Provided, That any such pictures or drawings must contain the dimensions of the embryo or fetus and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the embryo or fetus at the various gestational ages. The material shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each procedure, the possible detrimental psychological effects of abortion, and the medical risks commonly associated with carrying a child to term; and

(3) Materials designed to inform the female of the range of possibilities regarding the effects and risks of a mifepristone chemical abortion or an attempt to counteract it and information on and assistance with the resources that may be available.

(b) The materials referred to in subsection (a) of this section shall be printed in a typeface large enough to be clearly legible. The website provided for in section four of this article shall be maintained at a minimum resolution of seventy dots per inch. All pictures appearing on the website shall be a minimum of 200 x 300 pixels. All letters on the website shall be a minimum of 11-point font. All information and pictures shall be accessible with an industry standard browser requiring no additional plug-ins.

(c) The materials required under this section shall be available at no cost from the Department of Health and Human Resources upon request and in appropriate numbers to any person, facility, or hospital.

§16-2I-4. Internet website.

Within ninety days of the effective date of this article, the secretary of the Department of Health and Human Resources shall develop and maintain a stable Internet website to provide the information required to be provided pursuant to the provisions of section three of this article. No information regarding persons visiting the website may be collected or maintained. The secretary of the Department of Health and Human Resources shall monitor the website on a daily basis to prevent and correct tampering.

§16-2I-5. Procedure in case of medical emergency.

When a medical emergency compels the performance of an abortion, the physician shall inform the female, prior to the abortion if possible, of the medical indications supporting the physician's judgment that an abortion is necessary to avert her death or that a twenty-four-hour delay will create serious risk of substantial and irreversible impairment of a major bodily function.

§16-2I-6. Protection of privacy in court proceedings.

In every civil or criminal proceeding or action brought under this article, the court shall rule whether the anonymity of any female upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the female should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest and why no reasonable, less restrictive alternative exists. In the absence of written consent of the female upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under section nine of this article shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

§16-2I-7. Reporting requirements.

(a) Within ninety days of the effective date of this article, the secretary of the Department of Health and Human Resources shall prepare a reporting form for physicians containing a reprint of this article and listing:

(1) The number of females to whom the information described in subsection (a), section two of this article was provided;

(2) The number of females to whom the physician or an agent of the physician provided the information described in subsection (b), section two of this article;

(3) The number of females who availed themselves of the opportunity to obtain a copy of the printed information described in section three of this article other than on the website;

(4) The number of abortions performed in cases involving medical emergency; and

(5) The number of abortions performed in cases not involving a medical emergency.

(b) The secretary of the Department of Health and Human Resources shall ensure that copies of the reporting forms described in subsection (a) of this section are provided:

(1) Within one hundred twenty days after the effective date of this article to all physicians licensed to practice in this state;

(2) To each physician who subsequently becomes newly licensed to practice in this state, at the same time as official notification to that physician that the physician is so licensed; and

(3) By December 1, of each year, other than the calendar year in which forms are distributed in accordance with subdivision (1) of this subsection, to all physicians licensed to practice in this state.

(c) By the twenty-eighth day of February of each year following a calendar year in any part of which this act was in effect, each physician who provided, or whose agent provided, information to one or more females in accordance with section two of this article during the previous calendar year shall submit to the secretary of the Department of Health and Human Resources a copy of the form described in subsection (a) of this section with the requested data entered accurately and completely.

(d) Reports that are not submitted by the end of a grace period of thirty days following the due date are subject to a late fee of $500 for each additional thirty-day period or portion of a thirty-day period they are overdue. Any physician required to report in accordance with this section who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date may, in an action brought by the secretary of the Department of Health and Human Resources, be directed by a court of competent jurisdiction to submit a complete report within a period stated by court order or be subject to sanctions for civil contempt.

(e) By August 1, of each year, the secretary of the Department of Health and Human Resources shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in subsection (a) of this section. Each report shall also provide the statistics for all previous calendar years, adjusted to reflect any additional information from late or corrected reports. The secretary of the Department of Health and Human Resources shall prevent any of the information from being included in the public reports that could reasonably lead to the identification of any physician who performed or treated an abortion, or any female who has had an abortion, in accordance with subsection (a), (b) or (c) of this section. Any information that could reasonably lead to the identification of any physician who performed or treated an abortion, or any female who has had an abortion, in accordance with subsection (a), (b) or (c) of this section is exempt from disclosure under the freedom of information act, article one, chapter twenty-nine-b of this code.

(f) The secretary of the Department of Health and Human Resources may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code which alter the dates established by subdivision (3), subsection (b) of this section or subsection (c) or (e) of this section or consolidate the forms or reports described in this section with other forms or reports to achieve administrative convenience or fiscal savings or to reduce the burden of reporting requirements, so long as reporting forms are sent to all licensed physicians in the state at least once every year and the report described in subsection (e) of this section is issued at least once every year.

§16-2I-8. Administrative remedies.

Any physician or agent thereof who willfully violates the provisions of this article may be subject to sanctions as levied by the licensing board governing his or her profession.

§16-2I-9. Severability.

Effective from the reenactment of this section during the third extraordinary session of the Legislature, 2022, this article is of no force or effect unless any provision of §16-2R-1 et seq. of this code is judicially determined to be unconstitutional.

§16-2I-10.

Repealed.

Acts, 2010 Reg. Sess., Ch. 94.

§16-2J-1

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2J-2

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2J-3

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2J-4

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2J-5

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2J-6

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2J-7

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2J-8

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2J-9

Repealed

Acts, 2017 Reg. Sess., Ch. 1

§16-2K-1

Repealed

Acts, 2017 Reg. Sess., Ch. 30.

§16-2K-2

Repealed

Acts, 2017 Reg. Sess., Ch. 30.

§16-2L-1. Legislative purpose.

[Repealed.]

§16-2L-2. Definitions.

[Repealed.]

§16-2L-3. Contracts with provider sponsored networks.

[Repealed.]

§16-2L-4. Options for Medicaid beneficiaries; assignment of enrollees.

[Repealed.]

§16-2L-5. Anti-trust exemption.

[Repealed.]

§16-2L-6. Rulemaking authority.

[Repealed.]

§16-2L-7. Reports to the Legislature.

[Repealed.]

§16-2M-1. Legislative findings.

The Legislature makes the following findings:

(1) Pain receptors (unborn child's entire body nociceptors) are present no later than sixteen weeks after fertilization and nerves link these receptors to the brain's thalamus and subcortical plate by no later than twenty weeks.

(2) By eight weeks after fertilization, the unborn child reacts to stimuli that would be recognized as painful if applied to an adult human, for example, by recoiling.

(3) In the unborn child, application of painful stimuli is associated with significant increases in stress hormones known as the stress response.

(4) Subjection to painful stimuli is associated with long- term harmful neuro developmental effects, such as altered pain sensitivity and, possibly, emotional, behavioral and learning disabilities later in life.

(5) For the purposes of surgery on unborn children, fetal anesthesia is routinely administered and is associated with a decrease in stress hormones compared to their level when painful stimuli is applied without the anesthesia.

(6) The position, asserted by some medical experts, that the unborn child is incapable of experiencing pain until a point later in pregnancy than twenty weeks after fertilization, which point in the pregnancy is generally consistent with twenty-two weeks following the woman's last menstrual cycle, predominately rests on the assumption that the ability to experience pain depends on the cerebral cortex and requires nerve connections between the thalamus and the cortex. However, recent medical research and analysis, especially since 2007, provides strong evidence for the conclusion that a functioning cortex is not necessary to experience pain.

(7) Substantial evidence indicates that children born missing the bulk of the cerebral cortex, those with hydranencephaly, nevertheless experience pain.

(8) In adults, stimulation or ablation of the cerebral cortex does not alter pain perception while stimulation or ablation of the thalamus does.

(9) Substantial evidence indicates that structures used for pain processing in early development differ from those of adults, using different neural elements available at specific times during development, such as the subcortical plate, to fulfill the role of pain processing.

(10) Consequently, there is substantial medical evidence that an unborn child is capable of experiencing pain by pain capable gestational age as defined in subsection (7), section two, article two-m of this chapter.

(11) It is the purpose of the state to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

§16-2M-2. Definitions.

For purposes of this article:

(1) "Abortion" means abortion as that term is defined in section two, article two-f of this chapter.

(2) "Attempt to perform or induce an abortion" means an act or an omission of a statutorily required act that, under the circumstances as the person believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in this state in violation of the applicable provisions of this code.

(3) "Fertilization" means the fusion of a human spermatozoon with a human ovum.

(4) "Fetus" means the developing young in the uterus, specifically the unborn offspring in the postembryonic period from nine weeks after fertilization until birth.

(5) "Medical emergency" means a condition that, on the basis of a reasonably prudent physician's reasonable medical judgment, so complicates the medical condition of a pregnant female that it necessitates the immediate abortion of her pregnancy without first determining gestational age to avert her death or for which the delay necessary to determine gestational age will create serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No condition may be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

(6) "Nonmedically viable fetus" means a fetus that contains sufficient lethal fetal anomalies so as to render the fetus medically futile or incompatible with life outside the womb in the reasonable medical judgment of a reasonably prudent physician.

(7) "Pain capable gestational age" means twenty-two weeks since the first day of the woman's last menstrual period. The pain capable gestational age defined herein is generally consistent with the time that is twenty weeks after fertilization.

(8) "Physician" means a person with an unrestricted license to practice allopathic medicine pursuant to article three of chapter thirty of this code or osteopathic medicine pursuant to article fourteen, chapter thirty of this code.

(9) "Probable gestational age of the fetus" means, in reasonable medical judgment and with reasonable probability, the gestational age of the fetus at the time an abortion is planned to be performed.

(10) "Reasonable medical judgment" means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

§16-2M-3. Determination of gestational age.

Except in the case of a medical emergency or a nonmedically viable fetus, no abortion may be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable gestational age of the fetus or relied upon such a determination made by another physician. In making this determination, the physician shall make inquiries of the patient and perform or cause to be performed medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to gestational age.

§16-2M-4. Abortion of fetus of pain capable gestational age prohibited.

(a) No person may perform or induce, or attempt to perform or induce, an abortion when it has been determined, by the physician performing or inducing or attempting to perform or induce the abortion or by another physician upon whose determination that physician relies, that the probable gestational age of the fetus has reached the pain capable gestational age, unless in the reasonable medical judgment of a reasonably prudent physician there exists a nonmedically viable fetus or the patient has a condition that, on the basis of a reasonably prudent physician's reasonable medical judgment, so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No condition may be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

(b) When an abortion upon a patient whose fetus has been determined to have a probable gestational age that has reached the pain capable gestational age is not prohibited by subsection (a) of this section, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the fetus to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the patient or of the substantial and irreversible physical impairment of a major bodily function of the patient than would other available methods.

§16-2M-5. Reporting.

(a) Any physician who performs or induces an abortion shall report to the Bureau for Public Health. The reporting shall be on a schedule and on forms set forth by the Secretary of the Department of Health and Human Resources annually, no later than December 31. The reports shall include the following information:

(1) Probable gestational age:

(A) If a determination of probable gestational age was made, whether ultrasound was employed in making the determination, and the week of probable gestational age determined.

(B) If a determination of probable gestational age was not made, the basis of the determination that a medical emergency existed or that there existed a nonmedically viable fetus.

(2) Method of abortion;

(3) If the probable gestational age was determined to have reached the pain capable gestational age, the basis of the determination that there existed a nonmedically viable fetus or that the patient had a condition which so complicated the medical condition of the patient that it necessitated the abortion of her pregnancy in order to avert her death or avert a serious risk of substantial and irreversible physical impairment of a major bodily function; and

(4) If the probable gestational age was determined to have reached the pain capable gestational age, whether the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the fetus to survive and, if such a method was not used, the basis of the determination that termination of the pregnancy in that manner would pose a greater risk either of the death of the patient or of the substantial and irreversible physical impairment of a major bodily function of the patient than would other available methods.

(b) Reports required by subsection (a) of this section may not contain the name or the address of the patient whose pregnancy was terminated nor may the report contain any information identifying the patient. These reports shall be maintained in strict confidence by the department, may not be available for public inspection, and may not be made available except pursuant to court order.

(c) Beginning June 30, 2016, and annually after that, the Department of Health and Human Resources shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in subsection (a) of this section. Each report shall provide the statistics for all previous calendar years from the effective date of this section, adjusted to reflect any additional information from late or corrected reports. The Department of Health and Human Resources shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any patient upon whom an abortion was performed or induced.

§16-2M-6. Penalties.

(a) Any physician or other licensed medical practitioner who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to patients, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

(b) Any person, not subject to subsection (a) of this section, who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have engaged in the unauthorized practice of medicine in violation of section thirteen, article three, chapter thirty of this code, and upon conviction, subject to the penalties contained in that section.

(c) In addition to the penalties set forth in subsections (a) and (b) of this section, a patient may seek any remedy otherwise available to such patient by applicable law.

(d) No penalty may be assessed against any patient upon whom an abortion is performed or induced or attempted to be performed or induced.

§16-2M-7. Severability.

Effective from the reenactment of this section during the third extraordinary session of the Legislature, 2022, this article is of no force or effect unless any provision of §16-2R-1 et seq. of this code is judicially determined to be unconstitutional.

§16-2N-1. Neonatal Abstinence Centers authorized; licensure required.

Neonatal abstinence centers are a distinct type of medical facility, providing unique medical services in the state. Neonatal abstinence centers may provide treatment for infants under one year of age suffering from Neonatal Abstinence Syndrome, including, but not limited to, the following services:

(1) Administration of medications;

(2) Pain management;

(3) Scoring, analysis and monitoring of symptoms;

(4) Nursing care;

(5) Plan of care;

(6) Therapeutic handling;

(7) Nutrition management;

(8) Doctor visits; and

(9) Parental training.

§16-2N-2. Rules; minimum standards for neonatal abstinence centers.

(a) The secretary shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-two of this code to carry out the purpose of this article. These rules shall include at a minimum:

(1) Licensing procedures for neonatal abstinence centers. These procedures shall be in place by July 1, 2015;

(2) The minimum standards of operation for neonatal abstinence facilities including the following:

(A) Minimum numbers of administrators, medical directors, nurses, aides and other personnel according to the occupancy of the facility;

(B) Qualifications of facility's administrators, medical directors, nurses, aides and other personnel;

(C) Safety requirements;

(D) Sanitation requirements;

(E) Therapeutic services to be provided;

(F) Medical records;

(G) Pharmacy services;

(H) Nursing services;

(I) Medical services;

(J) Physical facility;

(K) Visitation privileges; and

(L) Admission, transfer and discharge policies.

(b) The provisions of the rules promulgated pursuant to this section shall apply only to those facilities regulated pursuant to section five, article two-d of this chapter and shall not apply to a hospital-based acute care unit.

§16-2N-3. Certificate of need; exemption from moratorium.

Notwithstanding any other provision of this code, the Health Care Authority shall consider neonatal abstinence services provided in neonatal abstinence care centers as a unique and distinct medical service in conducting a certificate of need review.

§16-2O-1. Unborn Child Protection from Dismemberment Abortion Act.

(a) Definitions. — For purposes of this section:

(1) “Abortion” means the same as that term is defined in section two, article two-f, chapter sixteen of this code.

(2) “Attempt to perform an abortion” means the same as that term is defined in §16-2M-2 of this code.

(3) “Dismemberment abortion” means, with the purpose of causing the death of an unborn child, purposely to dismember a living unborn child and extract him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body to cut or rip it off. The term “dismemberment abortion” includes an abortion in which a dismemberment abortion is performed to cause the death of an unborn child but suction is subsequently used to extract fetal parts after the death of the unborn child. The term “dismemberment abortion” does not include an abortion which uses suction to dismember the body of the unborn child by sucking fetal parts into a collection container, an abortion following fetal demise which uses a suction curette, suction curettage or forceps to dismember the body of a dead unborn child, or when forceps are used following an induced fetal demise by other means.

(4) “Medical emergency” means the same as that term is defined in §16-2M-2 of this code.

(5) “Physician” means the same as that term is defined in §16-2M-2 of this code.

(6) “Reasonable medical judgement” means the same as that term is defined in §16-2M-2 of this code.

(7) “Woman” means a female human being whether or not she has reached the age of majority.

(b) Prohibition. —

No person may perform, or attempt to perform, a dismemberment abortion as defined in this section, unless in reasonable medical judgment the woman has a condition that, on the basis of reasonable medical judgment, so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions. No condition may be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

(c) Enforcement. —

(1) Any physician or other licensed medical practitioner who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have acted outside the scope of practice permitted by law or otherwise in breach of the standard of care owed to patients, and is subject to discipline from the applicable licensure board for that conduct, including, but not limited to, loss of professional license to practice.

(2) Any person, not subject to subdivision (1) of this subsection, who intentionally or recklessly performs or induces an abortion in violation of this article is considered to have engaged in the unauthorized practice of medicine in violation of section thirteen, article three, chapter thirty of this code, and, upon conviction, subject to the penalties contained in that section.

(3) In addition to the penalties set forth in subdivisions (1) and (2) of this section, a patient may seek any remedy otherwise available to such patient by applicable law.

(4) No penalty may be assessed against any patient upon whom an abortion is performed or induced or attempted to be performed or induced.

(d) Miscellaneous Provisions. —

 (1) This section does not prevent an abortion by any other method for any reason including rape and incest.

(2) Nothing in this section may be construed as creating or recognizing a right to abortion, nor a right to a particular method of abortion.

(e) Effective from the reenactment of this section during the third extraordinary session of the Legislature, 2022, this article is of no force or effect unless any provision of §16-2R-1 et seq. of this code is judicially determined to be unconstitutional.

§16-3-1. State Director of Health Authority to quarantine and to enforce regulations; State Board of Health Authority to issue regulations to control infectious or contagious diseases.

The state director of health is empowered to establish and strictly maintain quarantine at such places as he may deem proper and forbid and prevent the assembling of the people in any place, when the state director of health or any county or municipal health officer deems that the public health and safety so demand, and the state board of health may adopt rules and regulations to obstruct and prevent the introduction or spread of smallpox or other communicable or infectious diseases into or within the State, and the state director of health shall have the power to enforce these regulations by detention and arrest, if necessary. The state director of health shall have power to enter into any town, city, factory, railroad train, steamboat or other place whatsoever, and enter upon and inspect private property for the purpose of investigating the sanitary and hygienic conditions and the presence of cases of infectious diseases, and may, at his discretion, take charge of any epidemic or endemic conditions, and enforce such regulations as the state board of health may prescribe. All expenses incurred in controlling any endemic or epidemic conditions shall be paid by the county or municipality in which such epidemic occurs.

§16-3-2. Powers of county and municipal boards of health to establish quarantine; penalty for violation.

The county board of health of any county may declare quarantine therein, or in any particular district or place therein, whenever in their judgment it is necessary to prevent the spread of any communicable or infectious disease prevalent therein, or to prevent the introduction of any communicable or infectious disease prevailing in any other state, county or place, and of any and all persons and things likely to spread such infection. As soon as such quarantine is established such board shall, in writing, inform the director of health thereof, the duty of whom it shall be to ascertain, as soon as practicable, the necessity therefor, if any exists, and if the state director of health finds that no such necessity exists, the same shall, by the said director, be declared raised. The said county board of health shall have power and authority to enforce such quarantine until the same is raised as aforesaid, or by themselves, and may confine any such infected person, or any person liable to spread such infection, to the house or premises in which he resides, or if he has no residence in the county, at a place to be provided by them for the purpose; and if it shall become necessary to do so, they shall summon sufficient guard for the enforcement of their orders in the premises. Every person who shall fail or refuse to comply with any order made by such board under this section, and every person summoned as such guard who shall, without a lawful excuse, fail or refuse to obey the orders and directions of such board in enforcing said quarantine, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty-five nor more than $200. In cases of emergency or actual necessity, and when the county commission or corporate authorities are from any cause unable to meet or to provide for the emergency or the necessity of the case, all actual expenditures necessary for local and county quarantine, as provided for in this section, shall be certified by the county board of health to the county commission, and the whole, or as much thereof as the said commission may deem right and proper, shall be paid out of the county treasury. The board of health of any city, town or village shall have, within the municipality, the same powers and perform the same duties herein conferred upon and required of the county board of health in their county. So far as applicable the provisions of this section shall apply to any quarantine established and maintained by the state director of health pursuant to section one of this article.

§16-3-3. Communicable diseases on vessels or trains; offenses; penalty.

The state department of health, its agents and employees, and the local boards of health, in the absence of the state department, its agents and employees, when they have reason to believe that any steamboat or other watercraft navigating the Ohio river or its tributaries in this state, or any other of the waters of the state, or bordering thereon, is infected with any communicable disease, may prevent the landing of such boat or craft at any point in this state. They may also, if they have reason to believe that any railroad train, coach or other vehicle passing on or along any railroad in this state, contains any person having a communicable disease or any thing infected with contagious matter, detain such train, coach or vehicle at any station or point on such railroad where it can be done with safety, for a time sufficient to examine the same, and if found to be so infected, for a time sufficient to disinfect the same; and if the conductor or person in charge of such train, coach or vehicle, shall willfully fail or refuse to stop the said train, coach or vehicle for the time aforesaid, he shall be guilty of a misdemeanor and, punished as prescribed in section two of this article.

§16-3-4. Compulsory immunization of school children; information disseminated; offenses; penalties.

(a) Whenever a resident birth occurs, the commissioner shall promptly provide parents of the newborn child with information on immunizations mandated by this state or required for admission to a public, private and parochial school in this state or a state-regulated child care center.

(b) Except as hereinafter provided, a child entering school or a state-regulated child care center in this state must be immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough.

(c) No child or person may be admitted or received in any of the schools of the state or a state-regulated child care center until he or she has been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio,, rubella, tetanus and whooping cough or produces a certificate from the commissioner granting the child or person an exemption from the compulsory immunization requirements of this section.

(d) Any school or state-regulated child care center personnel having information concerning any person who attempts to be enrolled in a school or state-regulated child care center without having been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough shall report the names of all such persons to the commissioner.

(e) Persons may be provisionally enrolled under minimum criteria established by the commissioner so that the person's immunization may be completed while missing a minimum amount of school. No person shall be allowed to enter school without at least one dose of each required vaccine.

(f) County health departments shall furnish the biologicals for this immunization for children of parents or guardians who attest that they cannot afford or otherwise access vaccines elsewhere.

(g) Health officers and physicians who provide vaccinations must present the person vaccinated with a certificate free of charge showing that they have been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough, or he or she may give the certificate to any person or child whom he or she knows to have been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough.

(h) The commissioner is authorized to grant, renew, condition, deny, suspend or revoke exemptions to the compulsory immunization requirements of this section, on a statewide basis, upon sufficient medical evidence that immunization is contraindicated or there exists a specific precaution to a particular vaccine.

(1) A request for an exemption to the compulsory immunization requirements of this section must be accompanied by the certification of a licensed physician stating that the physical condition of the child is such that immunization is contraindicated or there exists a specific precaution to a particular vaccine.

(2) The commissioner is authorized to appoint and employ an Immunization Officer to make determinations on request for an exemption to the compulsory immunization requirements of this section, on a statewide basis, and delegate to the Immunization Officer the authority granted to the commissioner by this subsection.

(3) A person appointed and employed as the Immunization Officer must be a physician licensed under the laws of this state to practice medicine.

(4) The Immunization Officer's decision on a request for an exemption to the compulsory immunization requirements of this section may be appealed to the State Health Officer.

(5) The final determination of the State Health Officer is subject to a right of appeal pursuant to the provisions of article five, chapter twenty-nine a of this code.

(i) A physician who provides any person with a false certificate of immunization against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio,, rubella, tetanus and whooping cough is guilty of a misdemeanor and, upon conviction, shall be fined not less than $25 nor more than $100.

§16-3-4a. Influenza Immunizations.

(a) A hospital licensed pursuant to the provisions of article five-b of this chapter shall offer to an inpatient who is sixty-five years of age or older an influenza immunization prior to discharge from October 1 of every year and continuing through March 1 of the following year.

(b) The immunizations may not be offered in cases where the immunization is contraindicated.

(c) The requirements of this section are subject to the availability for sufficient influenza immunizations.

(d) Nothing in this section may be construed to require an influenza immunization as a condition of receiving any type of service or as a condition of discharge.

§16-3-5. Distribution of free vaccine preventives of disease.

(a) Declaration of legislative findings and purpose. -- The Legislature finds and declares that early immunization for preventable diseases represents one of the most cost-effective means of disease prevention. The savings which can be realized from immunization, compared to the cost of health care necessary to treat the illness and lost productivity, are substantial. Immunization of children at an early age serves as a preventive measure both in time and money and is essential to maintain our children's health and well-being. The costs of childhood immunizations should not be allowed to preclude the benefits available from a comprehensive, medically supervised child immunization service.

(b) The Commissioner of the Bureau for Public Health shall acquire vaccine for the prevention of polio, measles, meningitis, mumps, rubella, chickenpox, diphtheria, pertussis, tetanus, hepatitis-b, haemophilus influenzae-b and other vaccine preventable diseases as considered necessary or required by law and shall distribute the same, free of charge, in quantities he or she considers necessary, to public and private providers, to be used by them for the benefit of citizens to check contagions and control epidemics.

(c) The Commissioner of the Bureau for Public Health, through the immunization program, has the responsibility to ensure the distribution, free of charge, of federally supplied vaccines to public and private providers to be used to check contagions and control epidemics: Provided, That the public and private providers may not make a charge for the vaccine itself when administering it to a patient. The Commissioner of the Bureau for Public Health, through the immunization program, shall keep an accurate record of any vaccine delivered as provided in this section.

(d) The commissioner is charged with establishing an Immunization Advisory Committee. The advisory committee is to make recommendations on the distribution of vaccines acquired pursuant to this section, advise the secretary on the changing needs and opportunities for immunization from known diseases for all persons across their life span and track immunization compliance in accordance with federal and state laws. Members of the Immunization Advisory Committee shall be designated and appointed by the commissioner no later than July 1, 2015. The advisory committee shall be comprised of representatives from the following groups: Public health nursing, public health officers, primary health care providers, pediatricians, family practice physicians, health care administrators, pharmacists, the Commissioner of the Bureau for Medical Services, or his or her designee, the health insurance industry, the Director of the Public Employees Insurance Agency, or his or her designee, the self-insured industry and a minimum of three consumers. The state epidemiologist serves as an advisor to the committee. The commissioner, or his or her designee, serves as the chair of the advisory committee. Members of the advisory committee serve four-year terms.

(e) An advisory committee member may not participate in a matter involving specific parties that will have a direct and predicable effect on their financial interest. An effect will not be direct in instances where the chain of causation is attenuated or is contingent upon the occurrence of events that are speculative.

(f) All health insurance policies and prepaid care policies issued in this state which provide coverage for the children of the insured shall provide coverage for child immunization services to include the cost of the vaccine, if incurred by the health care provider, and all costs of administration from birth through age eighteen years. These services are exempt from any deductible, per-visit charge and/or copayment provisions which may be in force in these policies or contracts. This section does not exempt other health care services provided at the time of immunization from any deductible or copayment provisions.

(g) Attending physicians, midwives, nurse practitioners, hospitals, birthing centers, clinics and other appropriate health care providers shall provide parents of newborns and preschool age children with information on the following immunizations: Diphtheria, polio, mumps, meningitis, measles, rubella, tetanus, hepatitis-b, haemophilus influenzae-b, chickenpox and whooping cough. This information should include the availability of free immunization services for children.

§16-3-6. Nuisances affecting public health.

The state director of health or any county or municipal health officer shall inquire into and investigate all nuisances affecting the public health within his jurisdiction; and the said director or any such officer or the county commission of any county or any municipality is authorized and empowered to apply to the circuit court of the county in which any such nuisance exists, or to the judge thereof in vacation, for an injunction forthwith to restrain, prevent or abate such nuisance.

§16-3-7. Inflammation of the eyes of the newborn.

Any inflammation, swelling, or unusual redness in either one or both eyes of any infant, either apart from, or together with any unnatural discharge from the eye or eyes of such infant, independent of the nature of the infection, if any, occurring at any time within two weeks after the birth of such infant, shall be known as "inflammation of the eyes of the newborn" (ophthalmia neonatorum).

§16-3-8. Inflammation of the eyes of the newborn -- Duty of those assisting at childbirth to report cases; treatment.

It shall be the duty of any physician, surgeon, obstetrician, midwife, nurse, maternity home or hospital of any nature, parent, relative and persons attendant on or assisting in any way whatsoever any infant, or the mother of any infant, at childbirth, or at any time within two weeks after childbirth, knowing that the condition described in the preceding section exists, immediately to report such fact in writing to the local health officer of the county or municipality within which the infant or the mother of any infant may reside. In the event of there being no health officer in such county or municipality, the nurse or midwife in attendance shall immediately report the condition to some qualified practitioner of medicine and thereupon withdraw from the case except as she may act under the physician's instructions. On receipt of such report, the health officer, or the physician notified by a midwife where no health officer exists, shall immediately give to the parents or persons having charge of such infant a warning of the dangers to the eye, or eyes, of said infant, and shall for indigent cases provide the necessary treatment at the expense of said county or municipality.

§16-3-9. Inflammation of the eyes of the newborn -- Duties of local health officer.

It shall be the duty of the local health officer to investigate, or have investigated, every such case reported to him in pursuance of law, and any other cases that may come to his attention; to report all cases of inflammation of the eyes of the newborn and the result of all such investigations as the West Virginia board of health shall direct; and to conform to such other rules and regulations as the West Virginia board of health shall promulgate for his further guidance.

§16-3-10. Inflammation of eyes of newborn -- Use of an appropriate medication as prophylactic.

It shall be unlawful for any physician, nurse-midwife or midwife, practicing midwifery, or other health care professional to neglect or otherwise fail to instill or have instilled, immediately upon its birth, in the eyes of the newborn babe, the contents of a single-use tube of an ophthalmic ointment containing one percent tetracycline or one half of one percent erythromycin or the equivalent dosage of such medications or other appropriate medication approved by the director for prevention of inflammation of the eyes of the newborn. Every physician, nurse-midwife or midwife or other health care professional shall, in making a report of a birth, state the name of the appropriate medication which was instilled into the eyes of said infant. The director shall establish a list of appropriate medications for prevention of inflammation of the eyes of the newborn. The list shall be kept current and distributed to appropriate health care facilities and such other sources as the director may determine to be necessary.

§16-3-11. Same -- Duty of clerk of county commission.

It shall be the duty of the clerk of the county commission of each county, on or before the fifteenth day of each month, to certify to the prosecuting attorney of his county all reports of births filed during the preceding calendar month which fail to show that an appropriate medication for prevention of inflammation of the eyes of the newborn hereinbefore provided for was instilled.

§16-3-12. Same -- Duties of the state director of health; duties of board of health.

It shall be the duty of the state director of health:

(a) To enforce the provisions of sections seven through thirteen, inclusive, of this article;

(b) To provide for the gratuitous distribution of one percent solution of silver nitrate outfits, together with proper directions for the use and administration thereof, to all physicians and midwives who may be engaged in the practice of obstetrics, or assisting at childbirth;

(c) To publish and promulgate such further advice and information concerning the dangers of inflammation of the eyes of the newborn as is necessary for prompt and effective treatment;

(d) To furnish copies of sections seven through thirteen, inclusive, of this article to all physicians and midwives who may be engaged in the practice of obstetrics, or assisting at childbirth;

(e) To keep a proper record of any and all cases of inflammation of the eyes of the newborn of which reports are filed with the state director of health pursuant to law, or which may come to his attention in any way, and to constitute such records a part of the annual report to the Governor; and

(f) To report any and all violations of the public health laws or of any rules or regulations lawfully adopted pursuant thereto that may come to his attention, to the prosecuting attorney of the county wherein said violations may have occurred, and to assist said official in any way possible in the prosecution of such cases.

It shall be the duty of the state board of health to promulgate such rules and regulations as shall be necessary for the purpose of enforcing said provisions, and as the state director of health may deem necessary for the further and proper guidance of local health officers.

§16-3-13. Same -- Offenses; penalties.

Whoever, being a physician, surgeon, midwife, obstetrician, nurse, manager or person in charge of a maternity home or hospital, parent, relative, or person attending upon or assisting at the birth of an infant, violates any of the provisions of sections eight or ten of this article, shall be deemed guilty of a misdemeanor and, upon conviction thereof shall be fined not less than ten nor more than $50.

§16-3A-1. Purpose and legislative findings.

(a) The purpose of this article is to provide a centralized repository of information on hazardous materials and to identify the chemical elements of such materials, the harmful effects of exposure to such materials and the proper recommended emergency medical treatment for exposure to such hazardous materials.

(b) The Legislature finds that there is a lack of adequate information concerning hazardous materials, present in West Virginia, the immediate effects of exposure to such hazardous materials on human beings and the appropriate emergency medical treatment for exposure to hazardous materials. This lack of information increases the medical health risks of persons or communities who are exposed to hazardous materials. The prompt availability of this information would afford increased protection to persons and communities exposed to hazardous materials.

§16-3A-2. Hazardous materials; duties of the director of the department of health; requests for information; penalties; enforcement.

(a) The director of the West Virginia department of health shall within one hundred eighty days of the passage of this article establish a list of hazardous materials, including their treatment and effect, which have been determined to be, or are suspected to be hazardous or toxic to human health. In developing and maintaining this list the director shall give consideration to: (1) The existing list prepared by the commissioner of labor pursuant to section eighteen, article three, chapter twenty-one of this code, (2) any list, publication, regulation, report, guideline or other compilation of the occupational health and safety administration of the United States department of labor, (3) any list, publication, regulation, report, guideline or other compilation of the national institute for occupational safety and health, (4) any list, publication, regulation, report, guideline or other compilation of the national fire protection association, (5) any list, publication, regulation, report, guideline or other compilation of the United States environmental protection agency, or (6) any other source considered by the director to be reliable. In determining what hazardous materials to place on the list, the director shall give consideration to: (1) The materials' frequency of use in the state, (2) the frequency of exposure or overexposure of persons in the state to the materials, (3) the seriousness of the effects of such exposure, or (4) such other reason as the director may determine to be sufficient.

(b) The director of the department of health shall, within ninety days of the preparation of the list described above, determine the immediate health effects of exposure to and the recommended emergency medical treatment of exposure to such hazardous materials and publish such information in a usable form for medical and emergency personnel. The director shall also arrange that this information shall be immediately available to medical or emergency personnel at any time in the event of an accident. The director may do so by storing this information in the West Virginia poison control center or in such other manner and form as he may determine. The distribution of this information in a medical or other emergency to persons other than the medical or emergency personnel shall be approved by the director of the department of health or his authorized agent who may release such information in his discretion notwithstanding the requirements of the freedom of information act, chapter twenty-nine-b of this code.

(c) The director may accept for any of the purposes of this article all donations and grants of money, equipment, supplies, materials and services, conditional or otherwise, from any state, the United States or any other governmental agency, or from any person, firm, association or corporation, and may receive, utilize and dispose of these in accordance with other state laws.

(d) The lists referred to in subsections (a) and (b) of this section shall be updated annually.

(e) If the director determines that any information on the use, manufacture, transportation or storage of hazardous materials in West Virginia would be of assistance to him he may request that such information be provided to him by any person, any industry or company, any medical group or person, or any academic institution or person. He may also request from any person information concerning the harmful effects of exposure to such hazardous materials or the best method of medical treatment of such exposures. The information requested of any person, firm or corporation shall be provided to the director within thirty days unless good cause be shown to the satisfaction of the director why such request is unreasonable because of the potential breach of a trade secret.

(f) Any person, or corporation, that violates the provisions of this section shall be subject to a civil penalty of not less than $100 nor more than $1,000 for each violation. When the director believes that a violation has occurred he may request the Attorney General or the prosecuting attorney of the county where the violation occurred to file a civil action for civil penalties, or for injunctive or other relief, or both penalties and injunctive or other relief.

(g) The director shall develop by rule or regulation promulgated pursuant to the provisions of the administrative procedures act, chapter twenty-nine-a of this code, a program to assemble and update the hazardous materials list, the information on the immediate medical effects of exposure to such materials, and the appropriate emergency medical treatment of persons exposed: Provided, That the list and other information shall not be required to be promulgated pursuant to the administrative procedures act, chapter twenty-nine-a of this code. The program shall also include the most effective method or methods of distributing this information to medical and emergency personnel. This program shall be developed using the budget provided by the Legislature for this program. The director shall implement this program immediately and it shall be later reviewed by the Legislature through the approval of rules and regulations as provided for in chapter twenty-nine-a of this code.

§16-3B-1. Definitions.

(a) "Health care provider" means any licensed health care professional, organization or institution, whether public or private, under whose authority pertussis vaccine is administered.

(b) "Major adverse reaction" means any serious illness, disability or impairment of mental, emotional, behavioral or physical functioning or development, the first manifestation of which appears within four weeks after the date of administration of pertussis vaccine and for which there is reasonable scientific or medical evidence that pertussis vaccine causes, or significantly contributed to, such effect.

(c) "Any other adverse reaction" means any reaction which the department, after consultation with the medical and pharmacy faculties of West Virginia's teaching hospitals, determines by guideline is a basis for not continuing with pertussis vaccine administration.

(d) "Pertussis vaccine" means any vaccine that contains materials intended to prevent the occurrence of pertussis, whether or not the materials are administered separately or in conjunction with other materials intended to prevent the occurrence of other diseases.

§16-3B-2. Information supplied to individuals' parents prior to administration of pertussis vaccine.

(a) Prior to the administration of pertussis vaccine, the health care provider shall provide to the individual's parent or guardian written information satisfying the requirements of this section, and by appropriate inquiries attempt to elicit the information necessary to make the determinations required by this section:

(1) The frequency, severity and potential long-term effects of pertussis;

(2) Possible adverse reactions to pertussis vaccine which, if they occur, should be brought to the immediate attention of the health care provider;

(3) A form listing symptoms to be monitored and containing places where information can be recorded to assist in reporting to the health care provider, health officer and the department;

(4) Measures parents should take to reduce the risk of, or to respond to, any adverse reaction;

(5) Early warning signs or symptoms to which parents should be alert as possible precursors to an adverse reaction;

(6) When and to whom parents should report any adverse reaction; and

(7) The information required under section four of this article.

§16-3B-3. Recordation of pertussis vaccine administration.

(a) At the time of administration of pertussis vaccine to an individual, the health care provider shall record in a permanent record to which the patient or the patient's parent or guardian shall have access on request:

(1) The date of each vaccination;

(2) The manufacturer and lot number of the vaccine used for each;

(3) Any other identifying information on the vaccine used; and

(4) The name and title of the health care provider.

(b) Within twenty-four hours after an adverse reaction is recognized by any health care provider who has administered pertussis vaccine to an individual and has reason to believe that the individual has had a major adverse reaction to the vaccine, such health care provider shall:

(1) Record all relevant information in the individual's permanent medical record; and

(2) Report the information including the manufacturer's name and lot number to the county health officer who shall immediately forward the information to the department. On receipt of the information, the department shall immediately notify the vaccine manufacturer, and the United States centers for disease control.

§16-3B-4. Data collection on pertussis vaccine administration.

(a) By guideline, the department shall establish a system, sufficient for the purposes of subsections (b) and (c) of this section, to collect data from the local health officers, from public and private health care providers and from parents on the incidence of pertussis and major adverse reactions to pertussis vaccine.

(b) On the basis of information collected under this subsection and of other information available, the department shall periodically revise and update the information required by and the guidelines adopted under §16-3B-2 of this code.

(c) The department shall report to the United States Centers for Disease Control and Prevention all information collected under this section, including that received under §16-3B-3 of this code.

§16-3B-5. Public hearings.

(a) The department shall adopt guidelines, after notice and public hearing in accordance with the administrative procedures act, chapter twenty-nine-a of this code, setting forth:

(1) The circumstances under which pertussis vaccine should not be administered;

(2) The circumstances under which administration of the vaccine should be delayed;

(3) Any categories of potential recipients who are significantly more vulnerable to major adverse reactions than is the general population; and

(4) Procedures to notify all health care providers of the content of the final guidelines and all updates issued thereafter.

(b) The administration of pertussis vaccine to an individual may not be required by any provision of law if, in the judgment of the health care provider:

(1) The circumstances specified under this section are present; or

(2) Taking into account the information specified under this section as well as all other relevant information, the risk to the potential recipient outweighs the benefits both to the potential recipient and to the public in administering the vaccine.

(c) Nothing in this section shall be construed to affect any emergency authority of the director of health under any other provision of law to protect the public health.

§16-3C-1. Definitions.

When used in this article:

(a) "AIDS" means acquired immunodeficiency syndrome.

(b) "Bureau" means the Bureau for Public Health.

(c) "Commissioner" means the Commissioner of the Bureau for Public Health.

(d) "Convicted" includes pleas of guilty and pleas of nolo contendere accepted by the court having jurisdiction of the criminal prosecution, a finding of guilty following a jury trial, or a trial to a court and an adjudicated juvenile offender as defined in §49-1-202 of this code.

(e) "Department" means the Department of Health.

(f) "Funeral director" has the same meaning ascribed to that term in §30-6-3 of this code.

(g) "Funeral establishment" has the same meaning ascribed to that term in §30-6-3 of this code.

(h) "HIV" means the human immunodeficiency virus identified as the causative agent of AIDS.

(i) "HIV-related test" means a test for the HIV antibody or antigen or any future valid test approved by the bureau, the federal drug administration, or the Centers for Disease Control and Prevention.

(j) "Health facility" means a hospital, nursing home, physician’s office, clinic, blood bank, blood center, sperm bank, laboratory, or other health care institution.

(k) "Health care provider" means any physician, dentist, nurse, paramedic, psychologist, or other person providing medical, dental, nursing, psychological, or other health care services of any kind.

(l) "Health Information Exchange" means the electronic movement of health-related information in accord with law and nationally recognized standards.

(m) "High risk behavior" means behavior by a person including, but not limited to: (i) Unprotected sex with a person who is living with HIV; (ii) unprotected sex in exchange for money or drugs; (iii) unprotected sex with multiple partners; (iv) anonymous unprotected sex; (v) or needle sharing; (vi) diagnosis of a sexually transmitted disease; or (vii) unprotected sex or sharing injecting equipment in a high HIV prevalence setting or with a person who is living with HIV.

(n) "Medical or emergency responders" means paid or volunteer firefighters, law-enforcement officers, emergency medical technicians, paramedics, or other emergency service personnel, providers, or entities acting within the usual course of their duties; good samaritans and other nonmedical and nonemergency personnel providing assistance in emergencies; funeral directors; health care providers; the commissioner of the Bureau for Public Health; and all of their employees and volunteers.

(o) "Patient" or "test subject" or "subject of the test" means the person upon whom an HIV test is performed, or the person who has legal authority to make health care decisions for the test subject.

(p) "Permitted purpose" is a disclosure permitted by the Health Insurance Portability and Accountability Act of 1996 as amended, or a disclosure consented to or authorized by a patient or test subject.

(q) "Person" includes any natural person, partnership, association, joint venture, trust, public or private corporation, or health facility.

(r) "Release of test results" means a permitted or authorized disclosure of HIV-related test results.

(s) "Significant exposure" means:

(1) Exposure to blood or body fluids through needlestick, instruments, sharps, surgery, or traumatic events;

(2) Exposure of mucous membranes to visible blood or body fluids, to which universal precautions apply according to the national Centers for Disease Control and Prevention, and laboratory specimens that contain HIV (e.g. suspensions of concentrated virus); or

(3) Exposure of skin to visible blood or body fluids, when the exposed skin is chapped, abraded, or afflicted with dermatitis or the contact is prolonged or involving an extensive area.

(t) "Source patient" means any person whose body fluids have been the source of a significant exposure to a medical or emergency responder.

(u) "Targeted testing" means performing an HIV-related test for sub-populations at higher risk, typically defined on the basis of behavior, clinical, or demographic characteristics.

(v) "Victim" means the person or persons to whom transmission of bodily fluids from the perpetrator of the crimes of sexual abuse, sexual assault, incest, or sexual molestation occurred or was likely to have occurred in the commission of such crimes.

§16-3C-2.  HIV-related testing; methods for obtaining consent; billing patient health care providers.

(a) HIV-related testing should be recommended by healthcare providers as part of a routine screening for treatable conditions and as part of routine prenatal and perinatal care. A physician, dentist, nurse practitioner, nurse midwife, physician assistant or the commissioner may also request targeted testing for any of the following:

(1) When there is cause to believe that the test could be positive. Persons who engage in high risk behavior should be encouraged to be screened for HIV at least annually;

(2) When there is cause to believe that the test could provide information important in the care of the patient; or

(3) When there is cause to believe that the results of HIV-testing of samples of blood or body fluids from a source patient could provide information important in the care of medical or emergency responders or other persons identified in rules proposed by the department for approval by the Legislature in accordance with the provisions of article three, chapter twenty-nine-a of this code: Provided, That the source patient whose blood or body fluids is being tested pursuant to this section must have come into contact with a medical or emergency responder or other person in such a way that a significant exposure has occurred;

(4) When there is no record of any HIV-related or other sexually transmitted disease testing during pregnancy and the woman presents for labor and delivery.

(b) All health care providers, the bureau or a local health department that routinely bill insurance companies or other third-party providers may bill for HIV-related testing and treatment.

 (c) A patient consents to HIV-related testing when:

(1) The patient is informed either orally or in writing that:

(A) HIV-related testing will be performed as part of his or her routine care;

(B) HIV-related testing is voluntary; and

(C) He or she may decline HIV-related testing (opt-out); or

(2) The patient is informed that the patient’s general consent for medical care includes consent for HIV-related testing.

 (d) A patient who opts-out of HIV-related testing must be informed that HIV-related testing may be obtained anonymously at a local or county health department.

 (e) Any person seeking an HIV-related test in a local or county health department or at other HIV test setting provided by the commissioner who wishes to remain anonymous has the right to do so and must be provided written informed consent through the use of a coded system with no linking of individual identity to the test request or results.

(f) County or local health departments that routinely bill insurance companies or other third-party payers for service may bill for an HIV-related test if the person requesting the test does not request anonymity. No person may be refused a test at a local health department due to a lack of insurance or due to a request to remain anonymous.

 (g) A person may not decline or opt-out of HIV-related testing and the provisions of subsections (a) and (c) of this section do not apply when:

(1) A health care provider or health facility procures, processes, distributes or uses:

(A) A human body part, including tissue and blood or blood products, donated for:

(i) A purpose specified under the uniform anatomical gift act; or

(ii) Transplant recipients;

(B) Semen provided for the purpose of artificial insemination and an HIV-related test is necessary to ensure medical acceptability of a recipient or such gift or semen for the purposes intended;

(2) A person is unable or unwilling to grant or withhold consent as the result of a documented bona fide medical emergency, as determined by a treating physician taking into account the nature and extent of the exposure to another person and the HIV-related test results are necessary for medical diagnostic purposes to provide appropriate emergency care or treatment to a medical or emergency responder, or any other person who has come into contact with a source patient in such a way that a significant exposure necessitates HIV testing or to a source patient who is unable to consent in accordance with rules proposed by the department for approval by the Legislature in accordance with article three, chapter twenty-nine-a of this code: Provided, That necessary treatment may not be withheld pending HIV test results: Provided, however, That all sampling and HIV testing of samples of blood and body fluids, without the opportunity for the source patient or patient’s representative to opt-out of the testing, shall be through the use of a pseudonym and in accordance with rules proposed by the department for approval by the Legislature in accordance with article three, chapter twenty-nine-a of this code; or

(3) The performance of an HIV-related test for the purpose of research if the testing is performed in a manner by which the identity of the test subject is not known and may not be retrieved by the researcher.

(h) Mandated testing:

(1) The performance of any HIV-related testing that is or becomes mandatory by court order or other legal process described herein does not require consent of the subject but will include counseling.

(2) The court having jurisdiction of the criminal prosecution shall order that an HIV-related test be performed on any persons charged with any of the following crimes or offenses:

(i) Prostitution; or

(ii) Sexual abuse, sexual assault, incest or sexual molestation.

(3) HIV-related tests performed on persons charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation shall be confidentially administered by a designee of the bureau or the local or county health department having proper jurisdiction. The commissioner may designate health care providers in regional jail facilities to administer HIV-related tests on such persons if he or she determines it necessary and expedient.

(4) Costs associated with tests performed on persons charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation may be charged to the defendant or juvenile respondent unless a court determines that the person charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation is pecuniary unable to pay.

(A) If a person charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation who is ordered to be tested is unable to pay, the cost of the HIV testing may be borne by the regional jail or other correctional or juvenile facility, the bureau or the local health department.

(B) If persons charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation who is ordered to be tested has health insurance, the local health department or other providers performing the test may bill the health insurance of the person charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation for the cost of the test.

(C) A person charged with prostitution, sexual abuse, sexual assault, incest or sexual molestation ordered to submit to a HIV-related test may not be permitted to remain anonymous and a local health department may administer and bill for the test.

(5) When the Commissioner of the Bureau of Public Health knows or has reason to believe, because of medical or epidemiological information, that a person, including, but not limited to, a person such as an IV drug abuser, or a person who may have a sexually transmitted disease, or a person who has sexually molested, abused or assaulted another, has HIV infection and is or may be a danger to the public health, he or she may issue an order to:

(i) Require a person to be examined and tested to determine whether the person has HIV infection;

(ii) Require a person with HIV infection to report to a qualified physician or health worker for counseling; and

(iii) Direct a person with HIV infection to cease and desist from specified conduct which endangers the health of others.

(6) If any person violates a cease and desist order issued pursuant to this section and, by virtue of that violation, the person presents a danger to the health of others, the commissioner shall apply to the circuit court of Kanawha County to enforce the cease and desist order by imposing any restrictions upon the person that are necessary to prevent the specific conduct that endangers the health of others.

(7) A person convicted of the offenses described in this section shall be required to undergo HIV-related testing and counseling immediately upon conviction and the court having jurisdiction of the criminal prosecution may not release the convicted person from custody and shall revoke any order admitting the defendant to bail until HIV-related testing and counseling have been performed and the result is known. The HIV-related test result obtained from the convicted person is to be transmitted to the court and, after the convicted person is sentenced, made part of the court record. If the convicted person is placed in the custody of the Division of Corrections, the court shall transmit a copy of the convicted person's HIV-related test results to the Division of Corrections. The HIV-related test results shall be closed and confidential and disclosed by the court and the bureau only in accordance with the provisions of section three of this article.

(8) The prosecuting attorney shall inform the victim, or parent or guardian of the victim, at the earliest stage of the proceedings of the availability of voluntary HIV-related testing and counseling conducted by the bureau and that his or her best health interest would be served by submitting to HIV-related testing and counseling. HIV-related testing for the victim shall be administered at his or her request on a confidential basis and shall be administered in accordance with the Centers for Disease Control and Prevention guidelines of the United States Public Health Service in effect at the time of such request. The victim who obtains an HIV-related test shall be provided with pre and post-test counseling regarding the nature, reliability and significance of the HIV-related test and the confidential nature of the test. HIV-related testing and counseling conducted pursuant to this subsection shall be performed by the designee of the commissioner of the bureau or by any local or county health department having proper jurisdiction.

(9) If a person receives counseling or is tested under this subsection and is found to be HIV infected and the person is not incarcerated, the person shall be referred by the health care provider performing the counseling or testing for appropriate medical care and support services. The local or county health departments or any other agency under this subsection may not be financially responsible for medical care and support services.

(10) The commissioner of the bureau or his or her designees may require a person to undergo an HIV or other sexually transmitted disease test if a person was possibly exposed to HIV or other sexually transmitted disease infected blood or other body fluids as a result of receiving or rendering emergency medical aid, providing funeral services or providing law-enforcement services. The commissioner of the bureau or his or her designees may use the results to determine the appropriate therapy, counseling and psychological support for the exposed person.(11) If an HIV-related test required on persons convicted of prostitution, sexual abuse, sexual assault, incest or sexual molestation results in a negative reaction, upon motion of the state, the court having jurisdiction over the criminal prosecution may require the subject of the test to submit to further HIV-related tests performed under the direction of the bureau in accordance with the Centers for Disease Control and Prevention guidelines of the United States Public Health Service in effect at the time of the motion of the state.

(12) The costs of mandated testing and counseling provided under this subsection and pre and postconviction HIV-related testing and counseling provided the victim under the direction of the bureau pursuant to this subsection shall be paid by the by the individual to be tested or counseled or his or her medical insurance provider, if possible.

(13) The court having jurisdiction of the criminal prosecution shall order a person convicted of prostitution, sexual abuse, sexual assault, incest or sexual molestation to pay restitution to the state or the victim for the costs of any HIV-related testing and counseling provided the convicted person and the victim, unless the court has determined the convicted person to be indigent.

(14) Any funds recovered by the state as a result of an award of restitution under this subsection shall be paid into the State Treasury to the credit of a special revenue fund to be known as the HIV-testing Fund which is hereby created. The moneys so credited to the fund may be used solely by the bureau for the purposes of facilitating the performance of HIV-related testing and counseling under the provisions of this article.

(i) Nothing in this section is applicable to any insurer regulated under chapter thirty-three of this code: Provided, That the commissioner of insurance shall develop standards regarding consent for use by insurers which test for the presence of the HIV antibody.

(j) Whenever consent of the subject to the performance of HIV-related testing is required under this article, any such consent obtained, whether orally or in writing, shall be considered to be a valid and informed consent if it is given after compliance with the provisions of subsection (c) of this section.

§16-3C-3. Confidentiality of records; permitted disclosure; no duty to notify.

(a) No person may disclose or be compelled to disclose the identity of any person upon whom an HIV-related test is performed, or the results of such a test in a manner which permits identification of the subject of the test, except to the following persons:

(1) The subject of the test;

(2) The victim of the crimes of sexual abuse, sexual assault, incest or sexual molestation at the request of the victim or the victim's legal guardian, or of the parent or legal guardian of the victim if the victim is a minor where disclosure of the HIV-related test results of the convicted sex offender are requested;

(3) Any person who secures a specific release of test results executed by the subject of the test;

(4) A funeral director or an authorized agent or employee of a health facility or health care provider if the funeral establishment, health facility or health care provider itself is authorized to obtain the test results, the agent or employee provides patient care or handles or processes specimens of body fluids or tissues and the agent or employee has a need to know that information: Provided, That the funeral director, agent or employee shall maintain the confidentiality of this information;

(5) Licensed health care providers or appropriate health facility personnel providing care to the subject of the test: Provided, That such personnel shall maintain the confidentiality of the test results and may redisclose the results only for a permitted purpose or as permitted by law. The entry on a patient's chart of an HIV-related illness by the attending or other treating physician or other health care provider shall not constitute a breach of confidentiality requirements imposed by this article;

(6) The Bureau or the Centers for Disease Control and Prevention of the United States Public Health Service in accordance with reporting requirements for HIV and a diagnosed case of AIDS, or a related condition;

(7) A health facility or health care provider which procures, processes, distributes or uses: (A) A human body part from a deceased person with respect to medical information regarding that person; (B) semen provided prior to the effective date of this article for the purpose of artificial insemination; (C) blood or blood products for transfusion or injection; or (D) human body parts for transplant with respect to medical information regarding the donor or recipient;

(8) Health facility staff committees or accreditation or oversight review organizations which are conducting program monitoring, program evaluation or service reviews so long as any identity remains anonymous;

(9) Claims management personnel employed by or associated with an insurer, health care service contractor, health maintenance organization, self-funded health plan, state-administered health care claims payer or any other payer of health care claims, where the disclosure is to be used solely for the prompt and accurate evaluation and payment of medical or related claims. Information released under this subsection is confidential and may not be released or available to persons who are not involved in handling or determining medical claims payment;

(10) Persons, health care providers or health facilities engaging in or providing for the exchange of protected health information among the same in order to provide health care services to the patient, including, but not limited to, disclosure through a health information exchange, disclosure and exchange within health care facilities, and disclosure for a permitted purpose, including disclosure to a legally authorized public health authority; and

(11) A person allowed access to the record by a court order that is issued in compliance with the following provisions:

(i) No court of this state may issue the order unless the court finds that the person seeking the test results has demonstrated a compelling need for the test results which cannot be accommodated by other means. In assessing compelling need, the court shall weigh the need for disclosure against the privacy interest of the test subject and the public interest;

(ii) Pleadings pertaining to disclosure of test results shall substitute a pseudonym for the true name of the test subject of the test. The disclosure to the parties of the test subject's true name shall be communicated confidentially in documents not filed with the court;

(iii) Before granting any such order, the court shall, if possible, provide the individual whose test result is in question with notice and a reasonable opportunity to participate in the proceedings if he or she is not already a party;

(iv) Court proceedings as to disclosure of test results shall be conducted in camera unless the subject of the test agrees to a hearing in open court or unless the court determines that the public hearing is necessary to the public interest and the proper administration of justice; and

(v) Upon the issuance of an order to disclose test results, the court shall impose appropriate safeguards against unauthorized disclosure, which shall specify the person who may have access to the information, the purposes for which the information may be used and appropriate prohibitions on future disclosure.

(b) No person to whom the results of an HIV-related test have been disclosed pursuant to subsection (a) of this section may disclose the test results to another person except as authorized by said subsection.

(c) Notwithstanding the provisions set forth in subsections (a) through (c) of this section, the use of HIV test results to inform individuals named or identified as spouses, sex partners or contacts, or persons who have shared needles that they may be at risk of having acquired the HIV infection as a result of possible exchange of body fluids, is permitted: Provided, That the Bureau shall make a good faith effort to inform spouses, sex partners, contacts or persons who have shared needles that they may be at risk of having acquired the HIV infection as a result of possible exchange of body fluids: Provided, however, That the Bureau has no notification obligations when the Bureau determines that there has been no likely exposure of these persons to HIV from the infected test subject within the ten-year period immediately prior to the diagnosis of the infection. The name or identity of the person whose HIV test result was positive is to remain confidential. Spouses, contacts, or sex partners or persons who have shared needles may be tested anonymously at the State Bureau for public Health's designated test sites, or at their own expense by a health care provider or an approved laboratory of their choice confidentially should the test be positive. A cause of action may not arise against the Bureau, a physician or other health care provider from any such notification.

(d) There is no duty on the part of the physician or health care provider to notify the spouse or other sexual partner of, or persons who have shared needles with, an infected individual of their HIV infection and a cause of action may not arise from any failure to make such notification. However, if contact is not made, the Bureau will be so notified.

§16-3C-4. Substituted consent.

(a) If the person whose consent is necessary under this article for HIV-related testing or the authorization of the release of test results is unable to give such consent or authorization because of mental incapacity or incompetency, the consent or authorization shall be obtained from another person in the following order of preference:

(1) A person holding a durable power of attorney for health care decisions;

(2) The person's duly appointed legal guardian;

(3) The person's next-of-kin in the following order of preference: spouse, parent, adult child, sibling, uncle or aunt, and grandparent.

(b) The person's inability to consent shall not be permitted to result in prolonged delay or denial of necessary medical treatment.

(c) The information required to be provided to the patient pursuant to subsections (b) and (d), section two of this article, shall be provided to the person giving substituted consent hereunder.

§16-3C-5. Remedies and penalties.

(a) Any person aggrieved by a violation of this article has right of action in the circuit court and may recover for the violation:

(1) Against any person who recklessly violates a provision of this article, liquidated damages of $1,000 or actual damages, whichever is greater; or

(2) Against any person who intentionally or maliciously violated a provision of this article, liquidated damages of $10,000 or actual damages, whichever is greater; and

(3) Reasonable attorney fees; and

(4) Such other relief, including an injunction, as the court may consider appropriate.

(b) Any action under this article is barred unless the action is commenced within five years after the violation occurs.

(c) Nothing in this article limits the rights of the subject of an HIV-related test to recover damages or other relief under any other applicable law.

(d) Nothing in this article may be construed to impose civil liability for disclosure of an HIV-related test result in accordance with any reporting guidelines or requirements of the department or the centers for disease control of the United States Public Health Service.

§16-3C-6. Prohibiting certain acts; HIV tests results.

(a) A positive HIV test report, or the diagnosis of AIDS related complex (ARC), or the diagnosis of the AIDS syndrome or disease, may not constitute a basis upon which to deny the individual so diagnosed, access to quality health care: Provided, That this subsection does not apply to insurance.

(b) No student of any school or institution of higher learning, public or private, may be excluded from attending the school or institution of higher learning, or from participating in school sponsored activities, on the basis of a positive HIV test, or a diagnosis of ARC, or AIDS syndrome or disease. Exclusion from attendance or participation, as described above, shall be determined on a case by case basis, in consultation with the individual's parents, medical care provider, health authorities, school or institution administrators or medical advisors, in accordance with policies and guidelines which may have been established by the entities. Exclusion may only be based on the student representing an unacceptable risk as agreed to by the department for the transmission of the HIV to others because of the stage or nature of the illness.

§16-3C-7.

Repealed.

Acts, 2011 Reg. Sess., Ch. 87.

§16-3C-8. Administrative implementation.

(a) The commissioner of the bureau shall immediately implement and enforce the provisions of this article, and shall adopt rules to the extent necessary for further implementation of the article. The rules proposed by the bureau pursuant to this article may include procedures for taking appropriate action with regard to health care facilities or health care providers which violate this article or the rules promulgated hereunder. The provisions of the state administrative procedures act apply to all administrative rules and procedures of the bureau pursuant to this article, except that in case of conflict between the state administrative procedures act and this article, the provisions of this article shall control.

(b) The bureau shall promulgate rules to assure adequate quality control for all laboratories conducting HIV tests and to provide for a reporting and monitoring system for reporting to the bureau all positive HIV tests results.

§16-3C-9. Individual banking of blood by health care providers for elective surgery or medical procedures.

Any person may, in contemplation of elective surgery or other elective medical procedures for which a blood transfusion may be required, request the health care provider conducting such surgery or medical procedure, or any private, public or nonprofit blood bank, to make or cause to be made appropriate provisions to store and bank that individual's blood for use during such surgery or medical procedure. The health care provider or the private, public or nonprofit blood bank shall, upon such request, store and bank a person's blood and the health care provider shall use such blood in the elective surgery or medical procedure to the extent such blood is available.

§16-3D-1. Purpose and legislative findings.

(a) The purpose of this article is to bring together the state law governing compulsory testing for tuberculosis (TB) of students and school personnel as well as the statutes pertaining to the treatment, control and commitment of persons with the disease at hospitals, clinics and other health care facilities throughout the state.

(b) The targeted tuberculin testing and treatment guidelines published by the Centers for Disease Control and Prevention (CDC) in the year two thousand recommends that routine testing of low-risk populations for administrative purposes be discontinued. The elimination of routine retesting of school personnel in accordance with this recommendation will result in significant savings to the state.

(c) According to the CDC, high risk groups or persons that should be tested for latent TB infection include:

(1) Close contacts of a person known or suspected to have TB;

(2) Foreign-born persons from areas where TB is common;

(3) Residents and employees of high-risk congregate settings;

(4) Health care workers who serve high-risk clients;

(5) Medically underserved, low-income populations;

(6) High-Risk racial or ethnic minority populations;

(7) Children exposed to adults in high-risk categories;

(8) Persons who inject illicit drugs;

(9) Persons with HIV infection; and

(10) Persons with certain medical conditions, such as substance abuse, chest X-ray findings suggestive of previous TB, diabetes mellitus, silicosis, prolonged corticosteroid therapy, other immunosuppressive therapy, cancer of the head and neck, end-stage renal disease, intestinal bypass or gastrectomy, chronic malabsorption syndromes, or low body weight of ten percent or more below the ideal.

(d) Early diagnosis, proper and complete treatment for people with active TB disease prevents transmission to others as well as preventing the emergence of multidrug resistant TB.

(e) The TB Control Program should be funded at levels necessary to accomplish directly observed therapy for all patients with active TB disease in West Virginia and to implement targeted testing of high-risk groups.

§16-3D-2. Definitions.

As used in this article:

(1) "Active Tuberculosis" or "Tuberculosis" means a communicable disease caused by the bacteria, Mycobacterium tuberculosis, which is demonstrated by clinical, bacteriological, radiographic or epidemiological evidence. An infected person whose tuberculosis has progressed to active disease may experience symptoms such as coughing, fever, fatigue, loss of appetite and weight loss and is capable of spreading the disease to others if the tuberculosis germs are active in the lungs or throat.

(2) "Bureau" means the Bureau for Public Health;

(3) "Commissioner" means the Commissioner of the Bureau for Public Health, who is the state health officer;

(4) "Local board of health," "local board" or "board" means a board of health serving one or more counties or one or more municipalities or a combination thereof;

(5) "Local health department" means the staff of the local board of health; and

(6) "Local health officer" means the individual physician with a current West Virginia license to practice medicine who supervises and directs the activities of the local health department services, staff and facilities and is appointed by the local board of health with approval by the commissioner.

(7) "Tuberculosis suspect" means a person who is suspected of having tuberculosis disease due to any or all of the following medical factors: the presence of symptoms, the result of a positive skin test, risk factors for tuberculosis, or findings on an abnormal chest x ray, during the time period when an active tuberculosis disease diagnosis is pending.

§16-3D-3. Compulsory testing for tuberculosis of school children and school personnel; commissioner to approve the test; X rays required for reactors; suspension from school or employment for pupils and personnel found to have tuberculosis.

(a) Pupils found or suspected to have active tuberculosis shall be temporarily removed from school while their case is reviewed and evaluated by their personal physician and the local health officer. Pupils shall return to school when their personal physician and the local health officer, in consultation with the commissioner, indicate that it is safe and appropriate for them to return.

(b) School personnel found or suspected to have active tuberculosis shall have their employment suspended until the local health officer, in consultation with the commissioner, approves a return to work.

(c) The commissioner may require selective testing of students and school personnel for tuberculosis when there is reason to believe that they may have been exposed to the tuberculosis organism or they have signs and symptoms indicative of the disease. School nurses shall identify and refer any students or school personnel to the local health department in instances where they have reason to suspect that the individual has been exposed to tuberculosis or has symptoms indicative of the disease.

§16-3D-4. Report of cases, admissions, registration of patients.

(a) Every physician practicing in this state, every public health officer in the state, and every chief medical officer having charge of any hospital or clinic or other similar public or private institution in the state shall report electronically or in writing to the local health department in the patient's county of residence all information required by the Commissioner for every person having tuberculosis who comes under his or her observation or care. Such report shall be made within twenty-four hours after diagnosis.

(b) Every local health department shall forward all reports of tuberculosis cases filed pursuant to this section to the Bureau tuberculosis program within twenty-four hours of receipt of such reports.

(c) The chief medical officer of each tuberculosis institution, hospital or other health care facility shall report the admission of any patient with tuberculosis to the Bureau together with any other information the Commissioner may require. He or she shall make a similar report of the discharge or death of any patient. From such reports and other sources, the Bureau shall prepare and keep current a register of persons in this state with tuberculosis. The name of a person so registered shall not be made public nor shall the register be accessible to anyone except by order of the Bureau, the patient, or by the order of the judge of a court of record.

§16-3D-5. Forms for reporting and committing patients; other records.

(a) The Bureau shall prescribe the written and electronic forms for reporting all required information regarding patients with tuberculosis.

(b) The Bureau shall prescribe the written and electronic forms to be used in committing patients to any state hospital or other health care facility where care and treatment of tuberculosis patients is conducted.

§16-3D-6. Cost of maintenance and treatment of patients.

The cost of maintenance and treatment of patients admitted to state designated tuberculosis institutions shall be paid out of funds appropriated for the respective institutions. No patient shall be required to pay for such maintenance and treatment, but the institutions are authorized to receive any voluntary payments therefore.

§16-3D-7. Procedure when patient is a health menace to others; court ordered treatment; requirements for discharge; appeals.

(a) If any practicing physician, public health officer, or chief medical officer having under observation or care any person with tuberculosis is of the opinion that the environmental conditions of that person are not suitable for proper isolation or control by any type of local quarantine as prescribed by the Bureau, and that the person is unable or unwilling to conduct himself or herself and to live in such a manner as not to expose members of his or her family or household or other persons with whom he or she may be associated to danger of infection, he or she shall report the facts to the Bureau which shall investigate or have investigated the circumstances alleged.

(b) If the Commissioner or local health officer finds that any person's physical condition is a health menace to others, the Commissioner or local health officer shall petition the circuit court of the county in which the person resides, requesting an individualized course of treatment to deal with the person's current or inadequately treated tuberculosis. Refusal to adhere to prescribed treatment may result in an order of the court committing the person to a health care facility equipped for the treatment of tuberculosis: Provided, That if the Commissioner or local health officer determines that an emergency situation exists which warrants the immediate detention and commitment of a person with tuberculosis, an application for immediate involuntary commitment may be filed pursuant to section nine of this article.

(c) Upon receiving the petition, the court shall fix a date for hearing thereof and notice of the petition and the time and place for hearing shall be served personally, at least seven days before the hearing, upon the person with tuberculosis alleged to be dangerous to the health of others.

(d) If, upon hearing, it appears that the complaint of the Bureau is well founded, that other less restrictive treatment options have been exhausted, that the person has tuberculosis, and that the person is a danger to others, the court shall commit the individual to a health care facility equipped for the care and treatment of persons with tuberculosis. The person shall be deemed to be committed until discharged in the manner authorized in subsection (e) of this section: Provided, That the hearing and notice provisions of this subsection do not apply to immediate involuntary commitments as provided in section nine of this article.

(e) The chief medical officer of the institution to which any person with tuberculosis has been committed may discharge that person when, after consultation with the Commissioner and the local health officer in the patient's county of residence, it is agreed that the person may be discharged without danger to the health of others. The chief medical officer shall report immediately to the Commissioner and to the local health officer in the patient's county of residence each discharge of a person with tuberculosis.

(f) Every person committed under the provisions of this section shall observe all the rules of the institution. Any patient so committed may, by direction of the chief medical officer of the institution, be placed apart from the others and restrained from leaving the institution so long as he or she continues to have tuberculosis and remains a health menace.

(g) Nothing in this section may be construed to prohibit any person committed to any institution under the provisions of this section from applying to the Supreme Court of Appeals for a review of the evidence on which the commitment was made. Nothing in this section may be construed or operate to empower or authorize the Commissioner or the chief medical officer of the institution to restrict in any manner the individual's right to select any method of tuberculosis treatment offered by the institution.

§16-3D-8. Return of escapees from state tuberculosis institutions.

If any person confined in a state tuberculosis institution by virtue of an order of a circuit court as provided in sections seven and nine of this article shall escape, the chief medical officer shall issue a notice giving the name and description of the person escaping and requesting his or her apprehension and return to the hospital. The chief medical officer shall issue a warrant directed to the sheriff of the county commanding him or her to arrest and carry the escaped person back to the hospital, which warrant may be executed in any part of the state. If the person flees to another state, the chief medical officer shall notify the appropriate state health official in the state where the person has fled, and that state health official may take the actions that are necessary for the return of the person to the hospital.

§16-3D-9. Procedures for immediate involuntary commitment; rules.

(a) An application for immediate involuntary commitment of a person with tuberculosis may be filed by the Commissioner or local health officer, in the circuit court of the county in which the person resides. The application shall be filed under oath, and shall present information and facts which establish that the person with tuberculosis has been uncooperative or irresponsible with regard to treatment, quarantine or safety measures, presents a health menace to others, and is in need of immediate hospitalization.

(b) Upon receipt of the application, the circuit court may enter an order for the individual named in the action to be detained and taken into custody for the purpose of holding a probable cause hearing. The order shall specify that the hearing be held forthwith and shall appoint counsel for the individual: Provided, That in the event immediate detention is believed to be necessary for the protection of the individual or others at a time when no circuit court judge is available for immediate presentation of the application, a magistrate may accept the application and, upon a finding that immediate detention is necessary, may order the individual to be temporarily committed until the earliest reasonable time that the application can be presented to the circuit court, which period of time shall not exceed twenty-four hours except as provided in subsection (c) of this section.

(c) A probable cause hearing shall be held before a magistrate or circuit judge of the county in which the individual is a resident or where he or she was found. If requested by the individual or his or her counsel, the hearing may be postponed for a period not to exceed forty-eight hours, or as soon thereafter as possible.

(d) The individual shall be present at the probable cause hearing and shall have the right to present evidence, confront all witnesses and other evidence against him or her, and to examine testimony offered, including testimony by the Bureau or its designees.

(e) At the conclusion of the hearing the magistrate or circuit court judge shall enter an order stating whether there is probable cause to believe that the individual is likely to cause serious harm to herself or others as a result of his or her disease and actions. If probable cause is found, the individual shall be immediately committed to a health care facility equipped for the care and treatment of persons with tuberculosis. The person shall remain so committed until discharged in the manner authorized pursuant to subsection (e), section seven of this article: Provided, That in the case of an alcoholic or drug user, the judge or magistrate shall first order the individual committed to a detoxification center for detoxification prior to commitment to health care facility equipped for the care and treatment of persons with tuberculosis.

(f) The Bureau shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article, including, but not limited to, rules relating to the transport and temporary involuntary commitment of patients.

§16-4-1. Diseases designated as sexually transmitted.

Sexually transmitted diseases, as designated by the secretary of the Department of Health in rules proposed for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, are declared to be infectious, contagious, communicable and dangerous to the public health. If a conflict exists between a provision of this article and a provision of article three-c of this chapter, the provision of article three-c prevails.

§16-4-2. Investigations by local health officers.

(a) All municipal and county health officers shall:

(1) Use every available means to ascertain the existence of, and to investigate all cases of sexually transmitted disease coming within their respective jurisdictions and, when it is necessary, have all cases treated, if they are not already under treatment;

(2) To ascertain the sources and transmission of the infection; and

(3) To institute measures for the protection of other persons from infection by the infected person, or from persons reasonably suspected of being so infected, and for the protection of the public health at all times.

(b) A municipal health officer may designate any member of the city police or health department to make any investigation required by the provisions of this section. A county health officer may designate any discreet person to make any investigation required by the provisions of this section. Any person conducting an investigation has all authority necessary for the purpose, the same as the health officer.

§16-4-3. Medical clinics and detention houses.

In order to carry out the provisions of the last section, any health officer may, if he be a municipal health officer, with the consent of the municipal council or other body having proper authority, or if he be a county health officer, with the consent of the county commissioners or other tribunal, establish, either independently or in cooperation with other agencies, one or more medical clinics within their respective jurisdictions, and may also, with like consent, establish or provide one or more places for detention and quarantine of such persons as may come within the purview of this article.

§16-4-4. Evidence of infection.

The following are prima facie grounds and reasons for suspecting that a person is infected with a sexually transmitted disease:

(a) Being a person who has been convicted in any court, or before a police judge, or before a magistrate, upon any charge growing out of sexual behavior;

(b) Being a person reported by a physician as infected with a sexually transmitted disease, where the person is afterwards reported as having failed to return for treatment; and

(c) Being a person designated in a sexually transmitted disease report as having a sexual exposure to the infected person reported.

§16-4-5. Examination of convicts; liability for expenses.

When any person has been tried and convicted in any police court, or in any criminal or circuit court, or before a justice of the peace, upon any charge or offense growing out of sex immorality, such as has been set out in the last preceding section, said person shall not be released from custody by the judge, justice, or police officer trying the case until the local health officer having proper jurisdiction has been notified and has had time to make all necessary tests and examinations to ascertain whether in fact such person is infected with a venereal disease, and all necessary expenses for holding such person in custody pending examination and treatment, if needed, shall be a proper charge against the municipality, if the offense was committed within it, or against the county in which the offense was committed, if committed outside of a municipality; and every municipality, whether it be a county seat or not, shall be liable under this section.

§16-4-6. Reports by physicians.

(a) Every practicing physician or other person who makes a diagnosis in or treats a case of sexually transmitted disease and every superintendent or manager of a hospital, dispensary or charitable or penal institution in which there is a case of sexually transmitted disease shall make two reports of the case, as follows:

(1) One report shall be made to the local municipal health officer, if the party for whom the diagnosis was made or case treated lives within any municipality having a health officer, and if the municipality has no health officer, or if the party lives outside of a municipality, then to the health officer of the county in which the person lives;

(2) The second report shall be made to the director of health of the state.

(b) The reports required by this section shall state: (1) The street number and address of the person reported as diseased; (2) the age, sex, color, race, marital state and occupation of the person; (3) the date of the onset of the disease; (4) the anatomical site of the infection and the date and type of treatment; and (5) persons having a sexual exposure to the infected person reported, if any are identified by the infected person. The reports shall be mailed or delivered to the parties to whom they are directed within the specifications and time frame established by the director pursuant to rules proposed for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code.

(c) Municipal and county health officers shall file and preserve the reports required by this section: Provided, That all records, reports and other information provided under this section shall be confidential and exempt from public disclosure under the provisions of chapter twenty-nine-b of this code: Provided, however, That all reports shall be open to inspection by the director of the division of health, and by local health officers, or officers whose duties are connected with executing the laws against these diseases: Provided further, That any person who knowingly and willfully divulges or discloses any information entitled to protection under this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned in the county jail for not more than one year, or both fined and imprisoned: And provided further, That the department shall propose regulations relating hereto for approval by the Legislature in accordance with article three, chapter twenty-nine-a and such regulations shall include, but not be limited to, provisions for the implementation of the confidentiality provisions pertaining to this section.

§16-4-7. False report or information.

Any physician or other person required to make reports of a venereal disease hereunder, or who is required to report the failure of any patient to return for further treatment, who fails or refuses to make any such reports, or who knowingly reports a person under a false or fictitious name or address, or who makes any other statements on any report which he has reason to believe are untrue, shall be guilty of a misdemeanor and, shall be punished as hereinafter provided; and each report that should have been made, and each name that should have been given, and each address that should have been given, or has been wrongfully reported or given, shall be a separate offense; and a second conviction of a physician for failure to comply with any provision of this section shall be sufficient ground and reason for the director of health, upon the recommendation of the medical licensing board, to revoke the license of such physician. Any person suffering with a venereal disease, whose name is required to be reported hereunder, who gives to the physician or person required to make reports herein required a false or fictitious name or address, or who shall fail or refuse to answer any proper question required to be reported hereunder, or who makes any false statement in answer to any such question, shall be guilty of a misdemeanor and, shall be punished as hereinafter provided.

§16-4-8. Blanks and fees for reports.

It shall be the duty of the local health officers to furnish report blanks to physicians or other persons who need them, for the purpose of making reports required to be made to them, and of the director of the bureau of venereal diseases to furnish blanks for reports to be made to the said bureau; and counties and municipalities may, if they choose, pay persons, for making such reports as are to be made to county and municipal health officers, the sum of not to exceed 25¢ for each report so made.

§16-4-9. Treatment.

(a) Every physician or other person who examines or treats a person having a sexually transmitted disease shall instruct the person in measures for preventing the spread of the disease, and to inform him or her of the necessity of taking treatment until cured. (b) Any person who has been examined and found infected, or is being treated for a sexually transmitted disease as provided by this section, shall follow the directions given by the treating physician or other person and take precautions as are necessary and are recommended. Any person starting to take treatment shall continue the treatment until discharged by the physician or other person treating him or her.

(c) Any infected person who fails to return for further treatment within ten days after the last date set by the physician or other person for the patient to return for further treatment, without lawful excuse therefor, is guilty of a misdemeanor and, shall be punished as provided in section twenty-six of this article.

(d) After the expiration of the ten days provided in subsection (c) of this section, the physician or other person to whom the patient should have returned for treatment shall, unless he or she has knowledge of good reasons why the patient failed to return, make a report of the facts in the case to the local health officer having proper jurisdiction. The local health officer shall at once make an investigation to ascertain why the patient failed to return, and shall take any steps necessary in the matter to protect the public health, including obtaining the arrest, detention and quarantine of the patient.

§16-4-10. Minors.

Notwithstanding any other provision of law, any licensed physician may examine, diagnose, or treat any minor with his or her consent for any venereal disease without the knowledge or consent of the minor's parent or guardian. The physician shall not incur any civil or criminal liability in connection therewith except for negligence or wilful injury.

§16-4-11. Precautions as to exposure to disease.

Whenever any attending physician or other person knows or has good reasons to believe that any person having a sexually transmitted disease is conducting himself or herself, or is about to conduct himself or herself, in a manner as to expose other persons to infection, the physician or other person shall at once notify the local health officer having jurisdiction of the facts in the case, giving the name and address of the person. The local health officer, upon receipt of the notice, shall at once cause an investigation to be made to ascertain what should be done in the premises, and may do whatever is necessary to protect the public health.

§16-4-12. Persons not under treatment.

Where a venereal disease report shows the person is suffering with such disease in an infectious stage, and is not under treatment, the local health officer shall at once investigate and ascertain whether such person so reported is conducting so as to expose others to infection, and shall take such action as is necessary to protect the public health, and may arrest, detain and quarantine such person if necessary.

§16-4-13. Sources of infection.

Whenever it shall appear from any venereal disease report made by a physician, or other person, or otherwise, or whenever other reasonable facts are brought to the attention of any local health officer having proper jurisdiction which show that any hotel, boardinghouse, rooming house, or other house, place or thing is the source of infection of a venereal disease, without such report or other facts showing the particular person or thing therein as the source of such infection, then the local health officer shall at once notify the owner, proprietor or person operating, running or managing said hotel, boardinghouse, rooming house, or other house, or place, of the essential facts in the case; and if the place reported as being the source of such infection be a place or house, commonly reputed in the neighborhood to be a house or place of prostitution, or house or place of like character or kind, or is commonly known to be such by the police of the city (if in any municipality), then the proprietor, manager or operator of such house and all the inmates therein shall be apprehended and dealt with the same as other persons are arrested, detained, examined, quarantined, and treated, if found infected with a venereal disease.

§16-4-14. Issuance of warrant or order as to custody.

Upon receipt of a written report or of any other reliable information by the local health officer that any person infected with a venereal disease in an infectious stage is conducting himself or herself, or is about to conduct himself or herself, so as to infect others, or expose others to infection; or that a person infected with a venereal disease under treatment; or that any person is a prostitute, or person associating with prostitutes, and is reasonably suspected of being infected, or of conducting himself or herself so as to infect others; or that a person has been convicted in any court or municipality, or before a justice of the peace, of an offense growing out of sex immorality; or that a person is being held by any court, municipality, or justice of the peace, pending an examination for a venereal disease; or that a certain person has been reported in a venereal disease report as the source of a venereal disease; or when any other facts are brought to the attention of the local health officer having proper jurisdiction, showing that any person is reasonably suspected of being infected with a venereal disease, or is about to conduct himself or herself so as to infect others, said health officer shall at once issue his warrant or order, if the party be not already in custody, and shall proceed as hereinafter provided.

§16-4-15. Form and execution of warrant.

(a) Any warrant or order issued pursuant to the provisions of section fourteen of this article shall be directed to the chief of police if within a municipality, or to the county sheriff if not in a municipality or to any other officer qualified to execute process, directing the officer to apprehend the person mentioned, and to bring him or her before the health officer at a time and place set out in the warrant or order, there to be further dealt with as provided by law. The officer to whom the warrant is directed shall execute the warrant in the same manner as other papers of like character or kind.

(b) Pending a hearing in the matter the officer may for safekeeping, lodge the person apprehended under warrant, in jail or in any other place of detention that has been provided for such persons. The health officer may at his or her discretion and by indorsement on the warrant at the time of its issuance, direct any other disposition to be made of the person arrested, before trial. The officer executing the warrant shall be guided by the warrant, but may not be held responsible if the person arrested escapes. (c) The warrant is sufficient if it is in words and figures as follows (the blanks to be filled as necessary in each case):

State of West Virginia, Office of

County (or City) of .................................... County (or City) of ...........................................

........................................... Officer.

To............................., Chief of Police or Sheriff of ................. City, of County of ...............:

It having been brought to the attention of the undersigned health officer for (city or county) of ................, West Virginia, that ....................., reported as living or residing at .................... in (city or county), is infected, or is reasonably suspected of being infected, with one or more sexually transmitted diseases by reason of the fact that .................. has been reported as (set out any reasons set in section fourteen of this article, or other reasons)

and therefore reasonably suspected of being infected; and as the diseases have been declared to be infectious, contagious, communicable and dangerous to the public health.

This warrant commands you to apprehend ......................, if found within your jurisdiction, and to bring ................ before me at my office in the city or county of .................. on the .............. day of ..............., 19 ...., at ........ o'clock, .... M, there to be further dealt with as provided by law.

Given under my hand, this the ..................... day of ................., 19 .....

..............,,.....................................

Health Officer or Commissioner.

City (or County) of

West Virginia.

§16-4-16. Hearing on warrant; detention.

When a party is brought in for a hearing upon arrest under the warrant provided in the preceding section, the health officer shall at once proceed to ascertain the facts in the case, and to this end he may summon witnesses, and administer oaths to such witnesses touching their testimony, and may commit for contempt for failure to answer proper questions, and may, if proper, discharge the party from further custody; but if from the testimony it appears that the party so apprehended is properly classifiable under any subdivision of section four of this article, touching persons reasonably suspected of being infected with a venereal disease, then such party shall not be released from custody until proof has been made showing the party is already under treatment from a reputable physician, or other person, or until an examination has been made to ascertain whether in fact said party is so infected, and results of all tests and examinations are known, and shall make all orders touching the care, custody, and examination of the party as are reasonably necessary in the premises, and if it is found that said party is infected, then he may make any other orders that may be necessary touching the treatment of such party, and if said party is suffering with one or more venereal diseases in an infectious stage, said party shall not be released from custody until the diseases are past such infectious stage, and said party may be detained or quarantined in any place or institution provided for the purpose, or in the patient's own home if the health officer thinks best; and if no other place is available for such purposes, then such party shall be detained in the city or county jail, as the case may be. And it shall be the duty of every city and every county in the state to take this contingency in hand when they are making up their estimates for taxation and levy purposes and to provide therefor.

§16-4-17. Release from detention.

If as a result of the tests and examination provided to be made in the preceding section, it is shown that the party so examined is suffering with a venereal disease, not in an infectious state, said party may be released from further detention upon signing the agreement herein required to be provided, and which agreement shall be signed by the persons who have become noninfectious under treatment and detention, but who have not been cured. All persons signing the agreement mentioned above shall observe its provisions; and any failure to do so shall be deemed a misdemeanor and, shall be punished as hereinafter provided. The agreement mentioned above shall be sufficient if in words and figures following, after the blanks have been filled to suit each individual case:

Agreement to be signed by persons who are suffering with a venereal disease and are to be released from detention or quarantine, before being cured, or by persons who voluntary submit themselves for treatment to the health clinics as provided by law. State of West Virginia,

County (or City) of ________________

Witnesseth, That I, _________________, residing at _______________, in the county of __________, State of West Virginia, do hereby acknowledge the fact that I am at this time infected with a venereal disease, to wit: with _____________ and that I agree to place myself under the care of ____________________ within _____________ hours hereafter, and that I will remain under treatment of said physician or clinic until released by the health officer of ______________________, or until my case is transferred with the approval of said health officer to another regularly licensed physician or approved clinic; and that I further agree to report to the health officer above, within four days after beginning treatment from the above physician or clinic, of the medical treatment applied in my case, and that I will report thereafter as often as may be required of me by the health officer; and that I further agree to take all the precautions recommended by the health officer to prevent the spread of the above disease to other persons, and to this end that I will perform no act that might expose other persons to the above disease; and that I further agree, until finally released by the health officer, to notify him of any change in my address, and to obtain his consent before moving my abode outside his jurisdiction.

Witness my hand, this the _____________ day of _______________, 19__.

_________________________________

(Signature of Patient)

Approved this the _____ day of __________________, 19__. _________________________________

(Local Health Officer)

§16-4-18. Employment of infected person.

It shall be unlawful for any person having a venereal disease in an infectious stage to be engaged as a barber in any barbershop in the state, or to be engaged in any capacity in any bakery in the state, or to be employed at any hotel, restaurant, eating house, lunch counter, or other public place, as a cook, or cook's helper, or as a waiter, or in any other capacity whatever, where he may come in contact with food about to be served; and it shall be the duty of every physician or other person reporting a case of venereal disease hereunder required, to state in said report whether or not said person so reported is so engaged, and if so, to give the place where such party is so employed; and it shall be the duty of the local health officer, upon receipt of a report showing a person is so engaged, at once to notify the party to discontinue such employment; and if said party so notified fails or refuses to discontinue such employment within twenty-four hours after notice, then the party or parties employing said infected person shall be notified of the fact, and if such employer fails or refuses to take steps to have such infected person discontinue work within twenty-four hours after receiving notice from the health officer, he shall be guilty of a misdemeanor and, every twenty-four hours thereafter that such infected party continues in the employment of said employer shall be a separate offense upon the part of said employer. In the meantime said health officer may, if the infected party is not under treatment, have the infected person arrested, detained and quarantined, or otherwise dealt with as may seem best to said health officer.

§16-4-19. Voluntary submission to examination and treatment; charges; disposition of money collected.

(a)(1) Any person may report to any municipal or county health department and voluntarily submit himself or herself to all tests and examinations necessary to ascertain whether he or she is infected with a sexually transmitted disease; and the health department shall conduct and administer all necessary tests and examinations to ascertain whether the person has any sexually transmitted disease.

(2) A person who is tested for sexually transmitted diseases at a local health department pursuant to this subsection shall be responsible for paying the reasonable costs of testing, either directly or through billing the person’s medical provider.

(3) Local health departments may charge in accordance with their existing fee schedules and may charge patients for such testing on a sliding fee scale.

(b)(1) If tests and examinations show a person tested and examined pursuant to subsection (a) of this section to have a sexually transmitted disease, then the person shall elect whether he or she will take treatment from a private physician, or whether he or she will take treatment from the local health department.

 (2) If a person elects to take treatment through the local health department, he or she may be required to pay for such treatment either directly or by the local health department billing the person’s health insurance provider.

(3) Local health departments may charge in accordance with their existing fee schedules and may charge patients for treatment on a sliding fee scale.

(4) No individual may be refused treatment at a local health department due to a lack of insurance or inability to pay.

(c) All proper charges for examination and treatment that may be necessary pursuant to this section shall be paid by the individual or by that person’s health insurance provider.

(d) All money collected under this section shall be paid to the local health department and the local health officer having jurisdiction shall collect and account for such funds collected hereunder.

§16-4-20. Communication of disease; certificate.

It shall be unlawful for any person suffering with an infectious venereal disease to perform any act which exposes another person to infection with said disease, or knowingly to infect or expose another person to infection with such disease; and no physician, health officer or other person shall give any certificate showing a person to be free from a venereal disease, but such certificate shall simply state the results of tests and examinations that may have been made, and what tests were made to arrive at the results stated.

§16-4-21. Quarantine.

In establishing quarantine for a venereal disease under the provisions of this article, the health officer establishing said quarantine may confine any person infected, or reasonably suspected of having such venereal disease, or any other person liable to spread such disease, to the house or premises in which such infected person lives, or he may require any such person to be quarantined in any other place, hospital or institution in his jurisdiction that may have been provided. If no such place has been provided, then such person shall be confined in the county or city jail under a quarantine order, and such jails shall always be available for such purposes. But if such person is to be quarantined in his home, then said health officer shall designate the area, room or rooms, that such person is to occupy while so confined, and no one except the attending physician or his immediate attendants shall enter or leave such room or rooms so designated without permission of said health officer, and no one except the local health officer shall terminate said quarantine, and this shall not be done until the diseased person has become noninfectious as determined by thorough clinical tests, or permission has been given by the West Virginia state director of health. If, to make any quarantine effective as provided herein, it becomes necessary, the local health officer may summon a sufficient guard for the enforcement of his orders in the premises. And every person who fails or refuses to obey or comply with any order made by said health officer hereunder, or under any other section concerning quarantine, and every person summoned as a guard who shall, without a lawful excuse therefor, fail or refuse to obey the orders and directions of the health officer in enforcement of said quarantine, shall be guilty of a misdemeanor and, shall be punished as hereinafter provided.

§16-4-22. Physicians to furnish statement of qualifications and facilities for treatment of venereal diseases.

It shall be the duty of every physician or other person in the state who proposes to treat or does treat venereal diseases herein, to file with the director of the bureau of venereal diseases of the state, upon a blank to be furnished by said director, a statement showing something of his preparation, experience and facilities in and for the treatment of such diseases; and if he fail or refuse to make such statement, or if he treat a patient for any of said diseases without first having made such statement, he shall be guilty of a misdemeanor and, shall be punished as hereinafter provided.

§16-4-23. Costs and expenses of enforcement; jointly established places of detention.

All costs and expenses necessary to reasonably carry out the provisions of this article, touching the care, custody, detention, and treatment of persons coming within the purview of its provisions, shall be a general charge against the municipalities or counties, as the case may be, unless special arrangements have been made to defray such expenses. Where conditions and locations are such that more economical results may be secured, one or more municipalities, or counties and municipalities, may join together and establish one or more places for treatment and detention, as may be arranged by the several parties concerned, and to be supported upon a basis to be determined between them, and when this agreement has been made a matter of record by each party thereto, funds may be levied and expended by the several parties in pursuance of such agreement.

§16-4-24. Offenses by druggists.

(a) No druggist, pharmacist or other person, not a licensed physician under the laws of the state, may prescribe, recommend, sell, compound or mix any drugs, medicines or other substances to be used for the cure or alleviation of a sexually transmitted disease, including drugs, medicines or substances that are patented, proprietary or otherwise, unless:

(1) The druggist or pharmacist receives a written prescription, formula or order written for the person for whom the drugs or medicines are compounded and signed by a physician licensed to practice under the laws of the state;or

(2) The drug being recommended or sold has received federal food and drug administration approval for over-the-counter use.

(b) All drugs, medicines or substances that are known to the medical profession as being commonly used for the cure or alleviation of sexually transmitted diseases, whether the name is on the bottles or labels or not, is subject to the prohibitions established pursuant to the provisions of this section.

(c) All drugstores shall be at all times open to the inspection of any local health officer, or to any party designated by the director of the sexually transmitted diseases program of the state, to determine whether the provisions of this section are being carried out by the druggists or stores. A sale by a clerk is considered a sale by the owner or proprietor, and both may be prosecuted under the provisions of this article for a misdemeanor.

§16-4-25. Advertisements concerning venereal disease, etc.; penalty; exceptions.

Whosoever publishes, delivers or distributes or causes to be published, delivered or distributed in any manner whatsoever, in this state, any advertisement concerning a venereal disease, lost manhood, lost vitality, impotency, sexual weakness, seminal emissions, varicocele, self-abuse or excessive sexual indulgence, and calling attention to a medicine, article or preparation that may be used therefor, or to a person or persons from whom, or an office or place at which, information, treatment or advice relating to such disease, infirmity, habit or condition may be obtained, is guilty of a misdemeanor and, upon conviction thereof shall be punished by a fine of not less than $100 nor more than $300, or imprisonment in the county jail not to exceed six months, or both, in the discretion of the court.

Nothing in this section shall be construed as to prevent legitimate and legal public notices, placards, etc., issued under the direction of the state department of health or as to prevent sending out literature by either the state department of health or the United States Public Health Service.

§16-4-26. Offenses generally; penalties; jurisdiction of justices; complaints.

Any person violating any provision of this article, where no other punishment is provided, shall be punished by a fine of not less than ten nor more than $100, and may in addition thereto, at the discretion of the judge or justice trying the case, be imprisoned in jail for a period of not to exceed thirty days.

Justices of the peace shall have jurisdiction to try and determine all offenses arising under any provision of this article. Any citizen of the state may make complaint before a justice of any offense hereunder, and all proceedings shall be in the name of the state, and security for costs shall not be required, nor shall costs be adjudged against complainant unless it appears that no reasonable grounds for making complaint existed, and only then when it is made to appear that complainant acted in bad faith.

§16-4-27. Additional power and authority of local health officers.

The local health officer, in exercising any of the powers or authority vested in him by sections nine, ten, eleven, twelve, sixteen and twenty-one of this article with respect to any patient, minor or other person suffering or believed by him to be suffering from any venereal disease or diseases, may forthwith cause any such patient, minor or other person to be delivered into the custody of the state department of health for detention and treatment as provided in this article.

§16-4-28. Detention places.

The state department of health is hereby authorized and empowered to establish and provide a suitable place or places in the State of West Virginia for the detention of persons found to be suffering from any of the venereal diseases defined in section one of this article and to supervise, use and maintain such place or places in a manner deemed necessary or desirable in carrying out the provisions of this article.

§16-4-29. Detention and treatment.

There shall be accepted and received into the custody of the state department of health at such place or places provided for in the next preceding section, persons found upon investigation and examination to be suffering from venereal diseases as defined in section one of this article, for the purpose of detention and necessary medical attention and treatment thereat or therein, until found to be and pronounced cured of the venereal disease or diseases from which they are suffering.

§16-4-30. Continuous jurisdiction.

The state department of health is vested with and given continuous jurisdiction, authority and control over all persons received at and to be detained in or on the place or places provided for in the preceding sections, for all the purposes of this article, and until such persons are found upon proper examination to be and pronounced entirely free from and cured of any venereal disease or symptoms of such disease existing.

§16-4A-1. Compulsory serologic test.

Every pregnant woman, resident in West Virginia, shall have a blood sample taken and submitted to the West Virginia state hygienic laboratory or other laboratory approved by the state department of health where there shall be performed thereon a standard serologic test for syphilis. Any standard laboratory test for syphilis approved by the state director of health shall be considered to be such a standard serologic test.

§16-4A-2. Attending physician to obtain blood specimen.

Every physician engaging in attendance upon a pregnant woman in West Virginia shall, as soon as he or she is engaged to attend a woman and has reasonable grounds for suspecting that pregnancy exists, acquaint such woman with the provisions of this article and take or cause to be taken a specimen of blood from such woman. This specimen shall be submitted to the state hygienic laboratory or other laboratory approved by the state department of health as required by the preceding section. If the woman is in a stage of gestation or labor at the time that the diagnosis of pregnancy is made, which may make it inadvisable to obtain the specimen, the specimen of blood shall be obtained within ten days following delivery.

The state hygienic laboratory of the state health department shall perform the serological tests required by law on all blood specimens taken from pregnant women by physicians for examination. These tests shall be performed without charge.

Upon request it shall be the duty of county and district health officers to draw blood specimens from pregnant women for performing thereon a serologic test for syphilis. This service shall be performed without charge.

In those areas where the services of a district or county health officer are not available, the state health department shall assume the responsibility of obtaining the required blood specimens without any charge to the pregnant women.

§16-4A-3. Identification of specimen; report.

Any physician who takes or causes to be taken from a woman in pregnancy or suspected pregnancy a blood test for syphilis shall identify such specimen as being from a pregnant woman, and the laboratory shall provide a report in triplicate on forms prepared and furnished by the state department of health showing the results of such tests. The original of each such report shall be sent at once to the physician submitting the specimen, a duplicate shall be forwarded to the state department of health during the week that the test was performed, and the triplicate shall be retained by the laboratory for its files. All laboratory reports shall be confidential and shall not be open to public inspection. The laboratory test for syphilis in compliance with this article shall be performed free of charge by the state hygienic laboratory on the application of any municipal or county health officer or other physician, or any other person permitted by law to secure such specimens.

§16-4A-4. Notation on birth certificate.

Every physician required to report births and stillbirths, shall state on each birth certificate or stillbirth certificate, as the case may be, whether a blood test for syphilis was performed during such pregnancy upon a specimen of blood taken from the woman who bore the child for which the birth or stillbirth certificate is filed.

If such test was made, the physician shall state on the certificate the name of the test used, the date the test was performed and the name of the laboratory making the test; if not made, the physician filing the certificate shall state the reason or reasons why such test was not performed. In no event shall the result of the test be stated on the birth or stillbirth certificate.

§16-4A-5. Offenses; penalty.

Any physician or representative of a laboratory, making such examinations or tests as are required by this article, or filing such birth or stillbirth certificates, who shall knowingly misrepresent any of the facts called for in the laboratory reports or birth or stillbirth certificate, or who otherwise knowingly and wilfully shall violate any provision of this article, shall be guilty of a misdemeanor and, upon conviction thereof shall be subject to a fine of not less than $10 nor more than $50.

§16-4A-6. Separability.

If any part of this article shall be declared unconstitutional, such declaration shall not affect any other part thereof.

§16-4B-1. Autopsy on body of deceased persons in interest of medical science; who may perform; consent required; who may give consent.

In case of the death of any person in the State of West Virginia, except those deaths subject to autopsy being made pursuant to section ten, article twelve, chapter sixty-one of this code, the attending physician, or if there be none, any physician, if he or she deems it advisable in the interest of medical science or future health care of the deceased person's family, may perform or cause to be performed an autopsy on the body of such deceased person without liability therefor, provided consent to such autopsy is first obtained in writing or by telephone, if the telephone authorization is verified by a second person, from one of the following in the priority order stated: (1) The medical power of attorney representative; (2) if there is no medical power of attorney representative, the surviving spouse of deceased; (3) if there be no surviving spouse, then any child of deceased over the age of eighteen years: Provided, That the child's permission shall not be valid, if any other child of the deceased over the age of eighteen years objects prior to said autopsy and the objection shall be made known in writing to the physician who is to perform the autopsy; (4) if there be no surviving spouse, nor any child of deceased over the age of eighteen years, then the mother or father of deceased; (5) if there is no mother or father of the deceased, the health care surrogate, if one is appointed; (6) if there be no surviving spouse, nor any child over the age of eighteen years, nor mother or father, then the duly appointed and acting fiduciary of the estate of the deceased; or (7) if there be no surviving spouse, nor any child over the age of eighteen years, nor mother or father, nor duly appointed and acting fiduciary of the estate of deceased, then the person, firm, corporation or agency legally responsible for the financial obligation incurred in disposing of the body of deceased.

In the event the medical power of attorney representative, the health care surrogate, spouse, child or parent of deceased be mentally incompetent then the person authorized to consent to such autopsy shall be the next in the order of priority herein above defined.

As used in this section, the term "surviving spouse" shall mean any spouse of the deceased who is not legally separated from the deceased immediately prior to the death of the deceased.

§16-4C-1. Short title.

This article shall be known as the "Emergency Medical Services Act of 1996".

§16-4C-2. Purposes of article.

The Legislature finds and declares: (1) That the safe and efficient operation of life-saving and life-preserving emergency medical service to meet the needs of citizens of this state is a matter of general public interest and concern; (2) to ensure the provision of adequate emergency medical services within this state for the protection of the public health, safety and welfare, it is imperative that minimum standards for emergency medical service personnel be established and enforced by the state; (3) that emergency medical service personnel should meet minimum training standards promulgated by the commissioner; (4) that it is the public policy of this state to enact legislation to carry out these purposes and comply with minimum standards for emergency medical service personnel as specified herein; (5) that any patient who receives emergency medical service and who is unable to consent thereto should be liable for the reasonable cost of such service; and (6) that it is the public policy of this state to encourage emergency medical service providers to do those things necessary to carry out the powers conferred in this article unless otherwise forbidden by law.

§16-4C-3. Definitions.

As used in this article, unless the context clearly requires a different meaning:

(a) "Ambulance" means any privately or publicly-owned vehicle or aircraft which is designed, constructed or modified; equipped or maintained; and operated for the transportation of patients, including, but not limited to, emergency medical services vehicles; rotary and fixed wing air ambulances; gsa kkk-A-1822 federal standard type I, type II and type III vehicles; and specialized multipatient medical transport vehicles operated by an emergency medical services agency;

(b) "Commissioner" means the Commissioner of the Bureau for Public Health;

(c) "Council" means the Emergency Medical Service Advisory Council created pursuant to this article;

(d) "Director" means the Director of the Office of Emergency Medical Service in the Bureau for Public Health.

(e) "Emergency Medical Services" means all services which are set forth in Public Law 93-154 "The Emergency Medical Services Systems Act of 1973" and those included in and made a part of the emergency medical services plan of the Department of Health inclusive of, but not limited to, responding to the medical needs of an individual to prevent the loss of life or aggravation of illness or injury;

(f) "Emergency medical service agency" means any agency licensed under section six-a of this article to provide emergency medical services;

(g) "Emergency medical service personnel" means any person certified by the commissioner to provide emergency medical services as set forth by legislative rule;

(h) "Emergency medical service provider" means any authority, person, corporation, partnership or other entity, public or private, which owns or operates a licensed emergency medical services agency providing emergency medical service in this state;

(i) "Governing body" has the meanings ascribed to it as applied to a municipality in subdivision (1), subsection (b), section two, article one, chapter eight of this code;

(j) "Line officer" means the emergency medical service personnel, present at the scene of an accident, injury or illness, who has taken the responsibility for patient care;

(k) "Medical command" means the issuing of orders by a physician from a medical facility to emergency medical service personnel for the purpose of providing appropriate patient care;

(l) "Municipality" has the meaning ascribed to it in subdivision (1), subsection (a), section two, article one, chapter eight of this code;

(m) "Patient" means any person who is a recipient of the services provided by emergency medical services;

(n) "Service reciprocity" means the provision of emergency medical services to citizens of this state by emergency medical service personnel certified to render those services by a neighboring state;

(o) "Small emergency medical service provider" means any emergency medical service provider which is made up of less than twenty emergency medical service personnel; and

(p) "Specialized multipatient medical transport" means a type of ambulance transport provided for patients with medical needs greater than those of the average population, which may require the presence of a trained emergency medical technician during the transport of the patient: Provided, That the requirement of "greater medical need" may not prohibit the transportation of a patient whose need is preventive in nature.

§16-4C-4. Office of Emergency Medical Services created; requiring appointment of a Director of the Office of Emergency Medical Services; staffing.

(a) There is created under the Commissioner of the Bureau of Public Health an office to be known as the Office of Emergency Medical Services. A Director of the Office of Emergency Medical Services shall be appointed by the Secretary of the Department of Health to manage the office in a manner consistent with the purposes of this article. The director shall have experience in the delivery and administration of emergency medical services and related pre-hospital care. The director shall serve at the will and pleasure of the secretary and shall not be actively engaged or employed in any other business, vocation, or employment, serving full time as the Director of the Office of Emergency Medical Services.

(b) The commissioner may employ any technical, clerical, stenographic, and other personnel as may be necessary to carry out the purposes of this article. The personnel may be paid from funds appropriated therefor or from other funds as may be made available for carrying out the purposes of this article.

(c) The Office of Emergency Medical Services, as created by former §16-4D-4 of this code, shall continue in existence as the Office of Emergency Medical Services established by this section.

§16-4C-5. Emergency Medical Services Advisory Council; duties; composition; appointment; meetings; compensation and expenses.

(a) The Emergency Medical Services Advisory Council, created and established by former §16-4C-7 of this code, is continued for the purpose of developing, with the commissioner, standards for emergency medical services personnel and for the purpose of providing advice to the Office of Emergency Medical Services and the commissioner with respect to reviewing and making recommendations for, and providing assistance to, the establishment and maintenance of adequate emergency medical services for all portions of this state.

(b) The council shall advise the commissioner in all matters pertaining to his or her duties and functions in relation to carrying out the purposes of this article.

(c) The council shall review any rule proposed by the commissioner for legislative approval as provided for in §16-4C-6(a) of this code. After reviewing the legislative rule, the Emergency Medical Services Advisory Council shall provide a recommendation to the Legislative Rule-Making Review Committee that the Legislature:

(1) Authorize the promulgation of the legislative rule;

(2) Authorize the promulgation of part of the legislative rule;

(3) Authorize the promulgation of the legislative rule with certain amendments;

(4) Recommend that the proposed rule be withdrawn; or

(5) Reject the proposed rule.

(d) The council shall be composed of 18 members appointed by the Governor by and with the advice and consent of the Senate. The Mountain State Emergency Medical Services Association shall submit to the Governor a list of six names of representatives from its association and a list of three names shall be submitted to the Governor of representatives of their respective organizations by the County Commissioners' Association of West Virginia, the West Virginia State Firemen's Association, the West Virginia Hospital Association, the West Virginia Chapter of the American College of Emergency Physicians, the West Virginia Emergency Medical Services Administrators Association, the West Virginia Emergency Medical Services Coalition, the Ambulance Association of West Virginia, and the State Department of Education. The Governor shall appoint, from the respective lists submitted, two persons who represent the Mountain State Emergency Medical Services Association, one of whom shall be a paramedic and one of whom shall be an emergency medical technician-basic; and one person from the County Commissioners' Association of West Virginia, the West Virginia State Firemen's Association, the West Virginia Hospital Association, the West Virginia Chapter of the American College of Emergency Physicians, the West Virginia Emergency Medical Services Administrators Association, the West Virginia Emergency Medical Services Coalition, the Ambulance Association of West Virginia, and the State Department of Education. In addition, the Governor shall appoint the following:

(1) One person to represent emergency medical services providers operating within the state;

(2) One person to represent small emergency medical services providers operating within this state;

(3) One person to represent emergency medical services training officers or representatives;

(4) Two people to represent emergency medical services supervisors or administrators; and

(5) Three people to represent the general public who serve as voting members.

(e) Nine members shall be appointed from each congressional district.

(f) Each term is to be for three years, and no member may serve more than four consecutive terms.

(g) The council shall choose its own chairperson and meet at the call of the commissioner at least twice a year.

(h) The members of the council shall receive compensation and expense reimbursement in an amount not to exceed the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law for each day, or substantial portion thereof, engaged in the performance of official duties.

§16-4C-5a.

Repealed.

Acts, 2010 Reg. Sess., Ch. 80.

§16-4C-6. Powers and duties of commissioner.

The commissioner has the following powers and duties:

(a) To propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code: Provided, That the rules have been submitted at least 30 days in advance for review by the Emergency Medical Services Advisory Council, who may act only in the presence of a quorum. The rules may include:

(1) Standards and requirements for certification and recertification of emergency medical service personnel, including, but not limited to:

(A) Age, training, testing, and continuing education;

(B) Procedures for certification and recertification, and for denying, suspending, revoking, reinstating, and limiting a certification or recertification;

(C) Levels of certification and the scopes of practice for each level;

(D) Standards of conduct; and

(E) Causes for disciplinary action and sanctions which may be imposed.

(2) Standards and requirements for licensure and licensure renewals of emergency medical service agencies, including:

(A) Operational standards, levels of service, personnel qualifications and training, communications, public access, records management, reporting requirements, medical direction, quality assurance and review, and other requirements necessary for safe and efficient operation;

(B) Inspection standards and establishment of improvement periods to ensure maintenance of the standards;

(C) Fee schedules for licensure, renewal of licensure, and other necessary costs;

(D) Procedures for denying, suspending, revoking, reinstating, or limiting an agency licensure;

(E) Causes for disciplinary action against agencies; and

(F) Administrative penalties, fines, and other disciplinary sanctions which may be imposed on agencies;

(3) Standards and requirements for emergency medical services vehicles, including classifications and specifications;

(4) Standards and requirements for training institutions, including approval or accreditation of sponsors of continuing education, course curricula, and personnel;

(5) Standards and requirements for a State Medical Direction System, including qualifications for a state emergency medical services medical director and regional medical directors, the establishment of a State Medical Policy and Care Committee, and the designation of regional medical command centers;

(6) Provision of services by emergency medical services personnel in hospital emergency rooms;

(7) Authorization to temporarily suspend the certification of an individual emergency medical services provider prior to a hearing or notice if the commissioner finds there is probable cause that the conduct or continued service or practice of any individual certificate holder has or may create a danger to public health or safety: Provided, That the commissioner may rely on information received from a physician that serves as a medical director in finding that probable cause exists to temporarily suspend the certification; and

(8) Any other rules necessary to carry out the provisions of this article;

(b) To apply for, receive, and expend advances, grants, contributions, and other forms of assistance from the state or federal government or from any private or public agencies or foundations to carry out the provisions of this article;

(c) To design, develop, and review a Statewide Emergency Medical Services Implementation Plan. The plan shall recommend aid and assistance and all other acts necessary to carry out the purposes of this article:

(1) To encourage local participation by area, county, and community officials, and regional emergency medical services boards of directors; and

(2) To develop a system for monitoring and evaluating emergency medical services programs throughout the state;

(d) To provide professional and technical assistance and to make information available to regional emergency medical services boards of directors and other potential applicants or program sponsors of emergency medical services for purposes of developing and maintaining a statewide system of services;

(e) To assist local government agencies, regional emergency medical services boards of directors, and other public or private entities in obtaining federal, state, or other available funds and services;

(f) To cooperate and work with federal, state, and local governmental agencies, private organizations, and other entities as may be necessary to carry out the purposes of this article;

(g) To acquire in the name of the state by grant, purchase, gift, devise, or any other methods appropriate, real and personal property as may be reasonable and necessary to carry out the purposes of this article;

(h) To make grants and allocations of funds and property so acquired or which may have been appropriated to the agency to other agencies of state and local government as may be appropriate to carry out the purposes of this article;

(i) To expend and distribute by grant or bailment funds and property to all state and local agencies for the purpose of performing the duties and responsibilities of the agency all funds which it may have so acquired or which may have been appropriated by the Legislature of this state;

(j) To develop a program to inform the public concerning emergency medical services;

(k) To review and disseminate information regarding federal grant assistance relating to emergency medical services;

(l) To prepare and submit to the Governor and Legislature recommendations for legislation in the area of emergency medical services;

(m) To review, make recommendations for, and assist in all projects and programs that provide for emergency medical services whether or not the projects or programs are funded through the Office of Emergency Medical Services. A review and approval shall be required for all emergency medical services projects, programs, or services for which application is made to receive state or federal funds for their operation after the effective date of this act;

(n) To cooperate with the Department of Administration, Purchasing Division to establish one or more statewide contracts for equipment and supplies utilized by emergency medical services agencies in accordance with §5A-3-1 et seq. of this code:

(1) Any statewide contract established hereunder shall be made available to any emergency medical services agency licensed under §16-4C-6a of this code that is designated to provide emergency response by one or more county emergency dispatch centers.

(2) The office may develop uniform standards for equipment and supplies used by emergency medical services agencies in accordance with §5A-3-1 et seq. of this code.

(3) The office shall propose legislative rules for promulgation in accordance with §29A-3-1 et seq. of this code to effectuate the provisions of this subsection; and

(o) To take all necessary and appropriate action to encourage and foster the cooperation of all emergency medical service providers and facilities within this state.

§16-4C-6a. Emergency medical services agency licensure.

(a) Any person who proposes to establish or maintain an emergency medical services agency shall file an application with the commissioner which includes the identity of the applicant, any parent or affiliated entity, the proposed level of service and the number of emergency medical service response vehicles of the agency or proposed agency. The commissioner may require that additional information be included on each application.

(b) Upon receipt and review of the application the commissioner shall issue a license if he or she finds that the applicant meets the requirements and quality standards, to be established by the commissioner, for an emergency medical services agency license, and if the applicant has certified under penalty of perjury that he or she is current with all lawful obligations owed the State of West Virginia, excluding obligations owed in the current quarter, including, but not limited to, payment of taxes and workers' compensation premiums: Provided, That the certification set forth in this paragraph is required for the original application and subsequent renewals.

§16-4C-6b. Establishment of emergency medical services agency licensure fund; authorized expenditures; annual report.

(a) There is established in the state Treasury a special revenue fund designated the "Emergency Medical Services Agency Licensure Fund", which shall be administered by the Commissioner of the Bureau of Public Health.

(b) All application, personnel certification and recertification and agency licensing fees collected pursuant to the provisions of sections six, six-a and eight of this article shall be deposited into the fund and expended in accordance with the agency licensure and personnel certification and recertification duties imposed in this article.

(c) Any remaining balance, including accrued interest, in the fund at the end of the fiscal year shall not revert to the General Revenue Fund, but shall remain in the account.

(d) On or before January 1 of each year, the commissioner shall provide the Legislature with an annual fiscal year report on the emergency medical services agency licensure account including, but not limited to, the previous fiscal year's expenditures; projected expenditures for the current and next fiscal years; the number of agency licenses and personnel certifications and recertifications issued, denied, suspended or revoked; and, the status of licensure and certification hearings and court actions.

§16-4C-6c

Repealed

Acts, 2018 Reg. Sess., Ch. 151.

§16-4C-7. Vehicles, aircraft and persons aboard them exempted from requirements of article.

The following vehicles and aircraft are exempted from the provisions of this article and rules promulgated pursuant to it and persons aboard them are not required to comply with the provisions of section eight of this article:

(a) Privately-owned vehicles and aircraft not ordinarily used in the business or service of transporting patients;

(b) Vehicles and aircraft used as ambulances in case of a catastrophe or emergency when the ambulances normally staffed by certified emergency medical service personnel based in the locality of the catastrophe or emergency are insufficient to render the service required;

(c) Ambulances based outside this state, except that emergency medical service personnel aboard any such ambulance receiving a patient within this state for transportation to a location within this state shall comply with the provisions of this article and the rules promulgated pursuant to it except in the event of a catastrophe or emergency when the ambulances normally staffed by certified emergency medical service personnel based in the locality of the catastrophe or emergency are insufficient to render the services required;

(d) Ambulances owned by or operated under the direct control of a governmental agency of the United States; and

(e) Vehicles and aircraft designed primarily for rescue operations which do not ordinarily transport patients.

§16-4C-8. Standards for emergency medical services personnel.

(a) Every ambulance operated by an emergency medical services agency shall carry at least two personnel. At least one person shall be certified in cardiopulmonary resuscitation or first aid and the person in the patient compartment shall be certified as an emergency medical technician-basic, at a minimum, except that in the case of a specialized multi-patient medical transport, only one staff person is required and that person shall be certified, at a minimum, at the level of an emergency medical technician-basic. The requirements of this subsection will remain in effect until revised by the legislative rule to be promulgated pursuant to §16-4C-8(b) of this code.

(b) On or before May 28, 2024, the commissioner shall submit a proposed legislative rule to the Emergency Medical Services Advisory Council for review, and on or before June 30, 2024, shall file the proposed legislative rule with the Office of the Secretary of State, in accordance with the provisions of §29A-3-1 et seq. of this code, to establish certification standards for emergency medical vehicle operators and to revise the requirements for emergency medical services personnel.

(c) As of the effective date of the legislative rule to be promulgated pursuant to §16-4C-8(b), emergency medical services personnel who operate ambulances shall meet the requirements set forth in the legislative rule.

(d) Any person desiring emergency medical services personnel certification shall apply to the commissioner using forms and procedures prescribed by the commissioner. Upon receipt of the application, the commissioner shall determine whether the applicant meets the certification requirements and may examine the applicant if necessary to make that determination.

(e) The applicant shall submit to a national criminal background check, the requirement of which is declared to be not against public policy.

(1) The applicant shall meet all requirements necessary to accomplish the national criminal background check, including submitting fingerprints, and authorizing the West Virginia Office of Emergency Medical Services, the West Virginia State Police, and the Federal Bureau of Investigation to use all records submitted and produced for the purpose of screening the applicant for certification.

(2) The results of the national criminal background check may not be released to, or by, a private entity.

(3) The applicant shall submit a fee of $75 for initial certification and a fee of $25 for recertification. The fees set forth in this subsection remain in effect until modified by legislative rule.

(f) An application for an original, renewal, or temporary emergency medical services personnel certificate or emergency medical services agency license, shall be acted upon by the commissioner and the certificate or license delivered or mailed, or a copy of any order of the commissioner denying any such application delivered or mailed, to the applicant within 15 days after the date upon which the complete application, including test scores and background checks, if applicable, was received by the commissioner.

(g) Certification as an Emergency Medical Dispatcher, Emergency Medical Vehicle Operator, Emergency Medical Responder, Emergency Medical Technician, Advanced Emergency Medical Technician, Paramedic, Mobile Critical Care Paramedic, or Mobile Critical Care Nurse is valid for a period of two years with expiration dates determined by the commissioner.

 (h) Any person may report to the commissioner, or the Director of the Office of Emergency Medical Services, information he or she may have that appears to show that a person certified by the commissioner may have violated the provisions of this article or legislative rules promulgated pursuant to this article. A person who is certified by the commissioner, who knows of or observes another person certified by the commissioner violating the provisions of this article or legislative rules promulgated pursuant to this article, has a duty to report the violation to the commissioner or director. Any person who reports or provides information in good faith is immune from civil liability.

 (i) The commissioner may issue a temporary emergency medical services personnel certificate to an applicant, with or without examination of the applicant, when he or she finds that issuance to be in the public interest. Unless suspended or revoked, a temporary certificate shall be valid initially for a period not exceeding 120 days and may not be renewed unless the commissioner finds the renewal to be in the public interest.

 (j) For purposes of certification or recertification of emergency medical services personnel, the commissioner shall recognize and give full credit for all continuing education credits that have been approved or recognized by any state or nationally recognized accrediting body.

 (k) Notwithstanding any other provision of code or rule, the commissioner recognizes that military personnel, National Guardsmen, members of the United States Coast Guard, and members of the Reserve Components of the armed services have advanced skills and training necessary to meet the requirements of this section to be certified as an emergency medical technician-paramedic upon application. Any person may seek automatic certification as an emergency medical technician-paramedic in this state if he or she has:

(1) Been honorably discharged from any branch of the United States military;

(2) Received paramedic or similar life-saving medical training in positions including, but not limited to, United States Army Combat Medic, United States Air Force Pararescue, United States Air Force Combat Rescue Officer, United States Navy Hospital Corpsman – Advanced Technical Field, United States Coast Guard Health Services Technician, National Guard Health Care Specialist, the Reserve Components of any of the preceding positions, or can otherwise demonstrate that his or her occupation in the military received substantially similar training to be certified as required by the commissioner; and

(3) Received an honorable discharge within two years of the application date.

 (l) Notwithstanding any other provision of code or rule, the commissioner recognizes that military personnel, National Guardsmen, members of the United States Coast Guard, and members of the Reserve Components of the armed services have advanced skills and training necessary to meet the requirements of this section to be certified as an emergency medical technician-basic upon application. Any person may seek automatic certification as an emergency medical technician-basic in this state if he or she has:

(1) Been honorably discharged from any branch in the United States military;

(2) Received emergency medical technician training or similar life-saving medical training in positions including, but not limited to, United States Army Infantryman, United States Air Force Security Forces, United States Navy Hospital Corpsman, United States Coast Guard Aviation Survival Technician, United States Marines Infantryman, National Guard Infantryman, and Reserve Components of any of the preceding positions, or can otherwise demonstrate that his or her occupation in the military received substantially similar training to be certified as required by the commissioner; and

(3) Received an honorable discharge within two years of the application date.

(m) Upon reviewing an application for certification pursuant to subsections (k) and subsection (l) of this section, the commissioner shall issue an appropriate certificate to the individual applying for certification as an emergency medical technician-paramedic or emergency medical technician-basic without further examination or education. If an individual certified pursuant to this section permits his or her certification to expire, the commissioner may require examination as a condition of recertification.

§16-4C-9. Complaints; investigations; due process procedure; grounds for disciplinary action; public notice of action.

(a) The commissioner may at any time, upon his or her own motion, and shall, upon the written complaint of any person, cause an investigation to be conducted to determine whether grounds exist for disciplinary action under this article or legislative rules promulgated pursuant to this article.

(b) An investigator or other person who, under the direction of the commissioner or the director, gathers or reports information in good faith to the commissioner or the director, is immune from civil liability.

(c) After reviewing any information obtained through an investigation, the commissioner or director shall determine if probable cause exists that the licensee or certificate holder has violated any provision of this article or rules promulgated pursuant to this article.

(d) Upon a finding that probable cause exists that the licensee or certificate holder has violated any provision of this article or rules promulgated pursuant to this article, the commissioner or director shall provide a copy of the complaint and notice of hearing to the licensee or certificate holder. Upon a finding of probable cause that the conduct or continued service or practice of any individual certificate holder may create a danger to public health or safety, the commissioner may temporarily suspend the certification prior to a hearing or notice: Provided, That the commissioner may rely on information received from a physician who serves as a medical director in finding that probable cause exists to temporarily suspend the certification: Provided, however, That the commissioner shall simultaneously institute proceedings for a hearing in accordance with §16-4C-10 of this code.

(e) The commissioner or the director may enter into a consent decree or hold a hearing for the suspension or revocation of the license or certification or the imposition of sanctions against the licensee or certificate holder.

(f) The commissioner or the director may issue subpoenas and subpoenas duces tecum to obtain testimony and documents to aid in the investigation of allegations against any person or agency regulated by this article.

(g) The commissioner or the director may sign a consent decree or other legal document related to the complaint.

(h) The commissioner shall suspend or revoke any certificate, temporary certificate, or license when he or she finds the holder has:

(1) Obtained a certificate, temporary certificate, or license by means of fraud or deceit; or

(2) Been grossly incompetent or grossly negligent as defined by the commissioner in accordance with rules or by prevailing standards of emergency medical services care; or

(3) Failed or refused to comply with the provisions of this article or any legislative rule promulgated by the commissioner or any order or final decision of the commissioner; or

(4) Engaged in any act during the course of duty which has endangered or is likely to endanger the health, welfare, or safety of the public.

(i) The commissioner or the director may, after notice and opportunity for hearing, deny or refuse to renew, suspend, or revoke the license or certification of, impose probationary conditions upon, or take disciplinary action against, any licensee or certificate holder for any violation of this article or any rule promulgated pursuant to this article, once a violation has been proven by a preponderance of the evidence.

(j) Disciplinary action may include:

(1) Reprimand;

(2) Probation;

(3) Administrative penalties and fines;

(4) Mandatory attendance at continuing education seminars or other training;

(5) Practicing under supervision or other restriction;

(6) Requiring the licensee or holder of a certificate to report to the commissioner or director for periodic interviews for a specified period of time;

(7) Other disciplinary action considered by the commissioner or director to be necessary to protect the public, including advising other parties whose legitimate interests may be at risk; or

(8) Other sanctions as set forth by legislative rule promulgated pursuant to this article.

(k) The commissioner shall suspend or revoke any certificate, temporary certificate, or license if he or she finds the existence of any grounds which would justify the denial of an application for the certificate, temporary certificate, or license if application were then being made for it.

(l) The Office of Emergency Medical Services shall, after notice and opportunity for hearing, make available to the public electronically via the board's website, information regarding any suspension or revocation of the certification of EMS personnel for any violation of this article or any rule promulgated pursuant to this article. The information published shall be limited to the individual’s name, certification number, whether the certification was revoked or suspended, and the date of action. This section does not require the Office of Emergency Medical Services to publish any information otherwise protected under this code.

§16-4C-10. Procedures for hearing; right of appeal; judicial review.

(a) Hearings are governed by the provisions of article five, chapter twenty-nine a of this code.

(b) The commissioner or director may conduct the hearing or elect to have an Administrative Law Judge conduct the hearing.

(c) If the hearing is conducted by an Administrative Law Judge, the Administrative Law Judge shall prepare a proposed written order at the conclusion of a hearing containing findings of fact and conclusions of law. The proposed order may contain proposed disciplinary actions if the commissioner or director so directs. The commissioner may accept, reject or modify the decision of the Administrative Law Judge.

(d) The commissioner or director has the authority to administer oaths, examine any person under oath and issue subpoenas and subpoenas duces tecum.

(e) If, after a hearing, the commissioner or director determines the licensee or holder of a certificate has violated any provision of this article or the legislative rules promulgated pursuant to this article, a formal written decision shall be prepared which contains findings of fact, conclusions of law and a specific description of the disciplinary actions imposed.

(f) The order of the Commissioner or director is final unless vacated or modified upon judicial review.

(g) Any licensee or certificate holder adversely affected by a final order made and entered by the commissioner or director is entitled to judicial review. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code apply to and govern the review with like effect as if the provisions of the section were set forth herein.

(h) The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

§16-4C-11. Liability for cost of emergency medical service.

Any patient who receives an emergency medical service and who is unable to give his or her consent to or contract for the service, whether or not he or she has agreed or consented to liability for the service, shall be liable in implied contract to the entity providing the emergency medical service for the cost thereof.

Any person who receives an emergency medical service upon his or her request for the service shall be liable for the cost thereof.

§16-4C-12. Violations; criminal penalties.

(a) When, as a result of an investigation under this article or otherwise, the commissioner or director has reason to believe that a licensee or certificate holder has committed a criminal offense, the commissioner or director may bring the information to the attention of an appropriate law-enforcement official.

(b) Any person who violates any law or rule or operates an ambulance with an insufficient number of emergency medical service personnel aboard when not lawfully permitted to do so, or who represents himself or herself as a certified emergency medical service personnel knowing the representation to be untrue, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000: Provided, That after July 1, 2010, the fine shall not be more than $5,000.

§16-4C-13. Actions to enjoin violations; injunctive relief.

Whenever it appears to the commissioner that any person has been or is violating or is about to violate any provision of this article or any final order of the commissioner, the commissioner may apply in the name of the state, to the circuit court of the county in which the violation or any part thereof has occurred, is occurring or is about to occur, for an injunction against the person and any other persons who have been, are or are about to be, involved in, or in any way participating in, any practices, acts or omissions, so in violation, enjoining the person or persons from any such violation. The application may be made and prosecuted to conclusion whether or not any such violation has resulted or shall result in prosecution or conviction under the provisions of section twelve of this article.

Upon application by the commissioner, the circuit courts of this state may by mandatory or prohibitory injunction compel compliance with the provisions of this article and all final orders of the commissioner.

The circuit court may issue a temporary injunction in any case pending a decision on the merits of any application filed.

The judgment of the circuit court upon any application permitted by the provisions of this section shall be final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals. Any such appeal shall be sought in the manner and within the time provided by law for appeals from circuit courts in other civil cases.

§16-4C-14. Services that may be performed by emergency medical service personnel.

Notwithstanding any other provision of law, emergency medical service personnel may provide the services as determined by the commissioner by legislative rule pursuant to the provisions of article three, chapter twenty-nine-a of this code. Legislative rules governing provision of these services in a hospital emergency room setting shall be developed by the commissioner and shall include provisions allowing paramedics to function under the direct supervision of a registered professional nurse in a hospital emergency room setting. Provision of these services in an emergency room hospital setting shall not be initiated until a legislative rule establishing training requirements, standards and requirements for these functions is in effect. The Legislature therefore directs the commissioner to propose this legislative rule on or before July 1, 2006. Further, the Commissioner may promulgate this rule as an emergency rule pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code. Any rule so promulgated shall provide that paramedics are under the jurisdiction of the commissioner. The West Virginia Board of Registered Professional Nurses may propose legislative rules, pursuant to article three, chapter twenty-nine-a of the code relating to the scope of practice for nurses as those practices relates to overseeing these paramedics. The provisions of this section and any rules promulgated thereunder may not be construed to alter in any manner the duties, role or responsibilities of attending physicians regarding the providing and oversight of patient care.

§16-4C-15. Powers of emergency medical service attendants, emergency medical technicians-basic and emergency medical technicians-paramedic during emergency communications failures and disasters.

(a) In the event of a communications failure between the certified emergency medical services agency personnel, as defined in section three of this article, and the physician during an emergency situation, the certified personnel is authorized to deliver the services as authorized in section fourteen of this article.

(b) In the event of a disaster or other occurrence which renders the communication system ineffective for purposes of adequate individual direction between the physician and the certified emergency medical services agency personnel, the personnel may perform the services as authorized pursuant to the provisions of section fourteen and may release immediate control of the patient to any other emergency medical service personnel in order to provide immediate services to other patients affected by the disaster or other occurrence.

(c) In the event that services are provided under subsection (a) or (b) of this section, the emergency medical services personnel shall, within five days, provide a report to the commissioner, on the forms prescribed by him or her, of the services performed, the identity of the patient and the circumstances justifying the provision of the services. The commissioner may require any other information deemed necessary.

§16-4C-16. Limitation of liability; mandatory errors and omissions insurance.

(a) Every person, corporation, ambulance service, emergency medical service provider, emergency ambulance authority, emergency ambulance service or other person which employs emergency medical service personnel with or without wages for ambulance service or provides ambulance service in any manner, shall obtain a policy of insurance insuring the person or entity and every employee, agent or servant, against loss from the liability imposed by law for damages arising from any error or omission in the provision of emergency medical services as enumerated by this article, in an amount no less than $1 million per incident.

(b) No emergency medical service personnel or emergency medical service provider is liable for civil damages or injuries in excess of the amounts for which the person or entity is actually insured, unless the damages or injuries are intentionally or maliciously inflicted.

(c) Every person or entity required by this section to obtain a policy of insurance shall furnish proof of the existence of the policy to the commissioner on or before January 1 of each calendar year.

(d) Any person or entity who fails to secure a policy of insurance before providing emergency medical services is not entitled to the limited liability created by subsection (b) of this section: Provided, That any physician, who gives instructions to emergency medical service personnel without being compensated, or who treats any patient transported in an ambulance or treats any patient prior to the transport, without being compensated, is entitled to the limited liability provided in subsection (b) of this section.

§16-4C-17. Limitation of liability for failure to obtain consent.

No emergency medical service personnel may be subject to civil liability, based solely upon failure to obtain consent in rendering emergency medical services to any individual regardless of age where the patient is unable to give his or her consent for any reason, including minority, and where there is no other person reasonably available who is legally authorized to consent to the providing of such care or who is legally authorized to refuse to consent to the providing of such care.

Nothing in this article may be construed to require medical treatment or transportation for any adult in contravention of his or her stated objection thereto upon religious grounds or pursuant to any living will or do not resuscitate orders: Provided, That the emergency medical service provider is actually aware of the living will or do not resuscitate order.

§16-4C-18. Authority of emergency medical service personnel in charge of emergency medical services.

When any department, agency or entity which provides emergency medical services under the authority of this article is responding to, operating at or returning from an emergency medical service, any emergency medical service personnel serving in the capacity of an emergency medical service line officer in charge, shall control and direct the providing of emergency medical services. The emergency medical service personnel serving in the capacity of an emergency medical service line officer shall determine whether a patient shall be transported from the emergency scene, determine what care shall be rendered prior to the transport, determine the appropriate facility to which the patient shall be transported, and otherwise fully direct and control the providing of emergency medical services and patient care under the direction of medical command.

Nothing included in this section may be construed to restrict or interfere with the authority of a fire officer in charge to supervise or direct those fire department personnel under his or her command or to restrict any person from entering a hazardous area for which the fire officer has assumed the responsibility.

§16-4C-19. Obstructing or causing bodily injury to emergency medical service personnel; criminal penalties.

(a) It is unlawful for any person to intentionally obstruct or interfere with any emergency medical service agency personnel engaged in the act of delivering or administering emergency medical services. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in the county or regional jail for a period not more than one year, or both fined and confined.

(b) It is unlawful for any person to willfully cause bodily injury to any person designated to be an emergency medical personnel engaged in the act of delivering or administering emergency medical services. Any person violating the provisions of this subsection is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than ten years or fined not more than $5,000, or both fined and confined.

(c) Nothing in this section may be construed to prevent law-enforcement officials from controlling traffic and otherwise maintaining order at the scene of an accident, injury or illness where an emergency medical service agency is rendering services.

(d) No person may willfully fail or refuse to comply with a lawful order or direction of any emergency medical service agency personnel engaged in the act of delivering or administering emergency medical services, relating to directing, controlling or regulating traffic, so long as such order or direction is conveyed by a retro-reflective hand signing device. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof: (1) For a first offense shall be fined not more than $100; (2) for a second offense occurring within one year of a previous conviction shall be fined not more than $200; and (3) for a third and subsequent offense shall be fined not more than $500.

§16-4C-20. Service reciprocity agreements for mutual aid.

Any persons or entities providing lawful emergency medical services under the provisions of this article are hereby authorized in their discretion to enter into and renew service reciprocity agreements, for any period as they may deem advisable, with the appropriate emergency medical service providers, county, municipal or other governmental units or in counties contiguous to the State of West Virginia, in the state of Ohio, the commonwealth of Pennsylvania, the state of Maryland, the commonwealth of Virginia or the commonwealth of Kentucky, in order to establish and carry into effect a plan to provide mutual aid across state lines, through the furnishing of properly certified personnel and equipment for the provision of emergency medical services in this state and the counties contiguous to this state upon written approval by the commissioner.

No person or entity may enter into any such agreement unless the agreement provides that each of the parties to the agreement shall waive any and all claims against the other parties thereto, which may arise out of their activities outside of their respective jurisdictions under the agreement and shall indemnify and save harmless the other parties to the agreement from all claims by third parties for property damages or personal injuries which may arise out of the activities of the other parties to the agreement outside their respective jurisdictions under the agreement.

The commissioner is hereby authorized to enter into service reciprocity agreements with appropriate officials in other states for the purpose of providing emergency medical services to the citizens of this state by emergency medical service personnel properly certified in their respective state or states. A formal agreement between the commissioner and an authorized official of another state shall be in effect prior to the service being provided. Individual certification of other state emergency medical service personnel is not required for purposes of providing services to West Virginia citizens following the creation of the agreement by the responsible officials.

§16-4C-21. Restriction for provision of emergency medical services by out-of-state emergency medical service personnel or providers of emergency medical services.

The commissioner may issue an order on his or her own motion upon written request of any emergency medical service provider or county commission in this state, to restrict an out-of-state provider of emergency medical services or an out-of-state emergency medical service personnel to a particular geographic area of the State of West Virginia or prohibit the provider or personnel from providing emergency medical services within the borders of this state when in the opinion of the commissioner the services are not required or do not meet the standards set forth herein or those established by rules as authorized by this article.

§16-4C-22. Transportation of unconscious or otherwise uncommunicative patients.

(a) Emergency medical service personnel shall transport critically ill or injured, unconscious or otherwise uncommunicative patients to the medical facility designated by the medical command physician.

(b) No person may have the right to direct emergency medical service personnel to transport a patient to a specific medical facility unless the person is the legal guardian, parent of a minor or has power of attorney for the critically injured or ill patient.

§16-4C-23. Authority of the commissioner to make rules.

(a) The commissioner shall propose for promulgation, legislative rules pursuant to §29A-3-1 et seq. of this code to carry out the purposes of this article.

(b) Notwithstanding the provisions of §16-4C-6(a) of this code, the commissioner shall propose for promulgation a legislative rule regulating fire department rapid response services, pursuant to §29A-3-1 et seq. of this code which: (1) Establishes licensure and certification requirements for fire department rapid response services who charge for their services or transport patients; (2) incorporates necessary applicable emergency medical services requirements for licensure for “emergency medical services” as the requirements apply to fire departments and as defined in §16-4C-3(e) of this code; and (3) creates an exemption from licensure for certain fire departments who do not charge for their services or patient transport, but who provide rapid response services pursuant to an agreement with a licensed emergency medical services agency that addresses medical direction, training, quality assurance, and liability insurance.

§16-4D-1. Purpose and findings.

(a) The West Virginia Legislature hereby finds and declares that each year more than two hundred fifty thousand Americans die from out-of-hospital incidents of sudden cardiac arrest. More than ninety-five percent of these incidents result in death and, in many cases, death occurs because properly trained persons with life-saving automated external defibrillators arrive at the scene too late.

(b) The American Heart Association estimates that more than twenty thousand deaths could be prevented each year if early defibrillation were more widely available.

(c) Many communities around the country have invested in 911 emergency notification systems and emergency medical services, including well-trained emergency personnel and ambulance vehicles. However, in many communities, there are not enough strategically placed automated external defibrillators and persons trained to properly operate them.

(d) It is, therefore, the intent of this Legislature to improve access to early defibrillation by encouraging the establishment of automated external defibrillator programs in careful coordination with the emergency medical services system.

§16-4D-2. Definitions.

(a) "Anticipated operator" means any person trained in accordance with section three of this article who utilizes an automated external defibrillator which was placed through an early defibrillation program.

(b) "Automated external defibrillator", hereinafter referred to as AED, means a medical device heart monitor and defibrillator that: (1) Has undergone the premarket approval process pursuant to the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §360, as amended; (2) is capable of recognizing the presence or absence of ventricular fibrillation; (3) is capable of determining, without intervention by the operator, whether defibrillation should be performed; and (4) upon determining that defibrillation should be performed, automatically charges and requests delivery of an electrical impulse to an individual's heart.

(c) "Early defibrillation program" means a coordinated program that meets the requirements of section three of this article and one that provides early public access to defibrillation for individuals experiencing sudden cardiac arrest through the use of an automated external defibrillator.

(d) "Emergency medical services (EMS)" means all services established by the Emergency Medical Services Act of 1973 in article four-c of this chapter, including, but not limited to, the emergency medical services plan of the Department of Health providing a response to the medical needs of an individual to prevent the loss of life or aggravation of illness or injury.

(e) "Entity" means a public or private group, organization, business, association or agency that meets the requirements of section three of this article. "Entity" does not include emergency medical services operational programs or licensed commercial ambulance services.

(f) "Medical director" means a duly licensed physician who serves as the designated medical coordinator for an entity's early defibrillation program.

(g) "Unanticipated operator" means any person rendering emergency medical care involving the use of an AED.

§16-4D-3. Early defibrillation programs.

An entity providing an early defibrillation program shall:

(1) Register the program with the Office of Emergency Medical Services, pursuant to article four-c of this chapter, identifying the placement of AEDs, training of anticipated operators, preplanned EMS system coordination, designation of a medical director, maintenance of AED equipment and reports of AED utilization;

(2) Require the anticipated operator of an AED to receive appropriate training in cardiopulmonary resuscitation, referred to as "CPR", in the operation of an AED and in the determination of advance directives from the American Heart Association, American Red Cross, any other nationally recognized course in CPR and AED or an AED and CPR training program approved by the Office of Emergency Medical Services;

(3) Maintain and test the AED in accordance with the manufacturer's guidelines and keep written records of this maintenance and testing;

(4) Designate a medical director for the coordination of the program, which shall include, but not be limited to, training, coordinating with EMS, creating AED deployment strategies and reviewing each operation of an AED;

(5) Notify the local EMS system and public safety answering point or other appropriate emergency dispatch center of the existence of an entity's early defibrillation program, the location of the program and the program's plan for coordination with the EMS system;

(6) Provide that an operator of an AED who renders emergency care or treatment on a person experiencing cardiac arrest shall activate the EMS system as soon as possible and shall report the use of an AED to the program medical director; and

(7) Comply with the guidelines of the West Virginia Office of Emergency Medical Services regarding data collection and reporting.

§16-4D-4. Limitation on liability.

A person is not liable for civil damages as a result of any act or omission in rendering emergency medical care or treatment involving the use of an AED if the care or treatment does not amount to gross negligence and the following conditions are met:

(1) The person, entity, certified trainer or medical director of the early defibrillation program is in compliance with the provisions of section three of this article; and

(2) The person is an anticipated operator of an AED who gratuitously and in good faith rendered emergency medical care, pursuant to the requirements of section three of this article, other than in the ordinary course of the person's employment or profession as a health care provider, as defined in section two, article two-d of this chapter; or

(3) The person is an unanticipated operator who gratuitously and in good faith rendered emergency medical care.

§16-4E-1. Legislative findings.

The Legislature finds that there is a need for a more comprehensive and uniform approach to any screening conducted by physicians and midwives to discover at-risk and high-risk pregnancies. A uniform approach would simplify the process, standardize the procedure and better identify those pregnancies that need more in-depth care and monitoring. Additionally, a uniform application would provide better and more measurable data regarding at-risk and high-risk pregnancies. This would allow public health officials to gain a better understanding of those conditions that are most frequently observed and to develop methodology to address those concerns.

§16-4E-2. Establishment of an advisory council on maternal risk assessment.

(a) There is created within the Office of Maternal, Child and Family Health an advisory council on maternal risk assessment to provide assistance in the development of a uniform maternal risk screening tool.

(b) The office shall convene the advisory council at least annually and providing administrative and technical assistance to the advisory council as needed. The members of the advisory council shall be appointed by the Commissioner of the Bureau for Public Health.

(c) The advisory council shall be comprised of:

(1) At least one private provider of maternity services;

(2) At least one public provider of maternity services;

(3) One representative from each of the state's three medical schools;

(4) The Commissioner of the Bureau for Public Health or his or her designee;

(5) The Director of the Office of Maternal, Child and Family Health or his or her designee;

(6) At least one representative of a tertiary care center;

(7) At least one representative of a facility with a level I or II obstetrical unit;

(8) At least one certified nurse midwife;

(9) At least one allopathic or osteopathic physician who is a private provider of maternity services at a facility with a level I or level II obstetrical unit.

§16-4E-3. Responsibilities of the advisory council on maternal risk assessment.

This advisory council shall:

(a) Advise the Bureau for Public Health, Office of Maternal, Child and Family Health with respect to the implementation of this article;

(b) Offer expert advice to the Office of Maternal, Child and Family Health on the development of a uniform risk screening tool and review the tool at least annually to offer suggested updates based upon current medical knowledge;

(c) Provide comments to the Office of Maternal, Child and Family Health on any legislative rules necessary for the accomplishment of any requirements of this article; and

(d) Develop in conjunction with the Office of Maternal, Child and Family Health a statistical matrix to measure incidents of high-risk and at-risk pregnancies for planning purposes by public health officials.

§16-4E-4. Legislative rule-making authority.

The Department of Health shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code. The legislative rules shall include a uniform maternal risk screening tool to identify women at risk for a preterm birth or other high-risk condition.

§16-4E-5. Applicability of the screening tool.

Once developed, all health care providers offering maternity services shall be required to utilize the uniform maternal risk screening tool in their examinations of any pregnant woman. Additionally they shall notify the woman of any high-risk condition which they identify along with any necessary referral and report the results to the Bureau for Public Health, Office of Maternal, Child and Family Health in the manner provided in the legislative rule.

§16-4E-6. Confidentiality of screening tool.

(a) The uniform maternal screening tool shall be confidential and shall not be released or disclosed to anyone, including any state or federal agency for any reason other than data analysis of high-risk and at-risk pregnancies for planning purposes by public health officials: Provided, That managed care organizations, with respect to their Medicaid or CHIP plans or contracts, which are reviewed and approved by the Bureau for Medical Services, and the Bureau for Medical Services may be provided data from the screening tool regarding their own covered members. The contracted managed care companies and the Bureau for Medical Services must maintain the confidentiality of the data received.

(b) Proceedings, records, and opinions of the advisory council are confidential and are not subject to discovery, subpoena, or introduction into evidence in any civil or criminal proceeding. Nothing in this subsection is to be construed to limit or restrict the right to discover, or use in any civil or criminal proceeding anything that is available from another source and entirely independent of the proceedings of the advisory council.

(c) Members of the advisory council may not be questioned in any civil or criminal proceeding regarding information presented in, or opinions formed as a result of, a meeting of the panel. Nothing in this subsection may be construed to prevent a member of the advisory council from testifying to information obtained independently of the panel or which is public information.

§16-4F-1. Definitions.

As used in this article, unless the context otherwise indicates, the following terms have the following meanings:

(1) "Department" means the Department of Health.

(2) "Expedited partner therapy" means prescribing, dispensing, furnishing or otherwise providing prescription antibiotic drugs to the sexual partner or partners of a person clinically diagnosed as infected with a sexually transmitted disease without physical examination of the partner or partners.

(3) "Health care professional" means:

(A) An allopathic physician licensed pursuant to article three, chapter thirty of this code;

(B) An osteopathic physician licensed pursuant to article fourteen, chapter thirty of this code;

(C) A physician assistant licensed pursuant to §30-3E-4 of this code;

(D) An advanced practice registered nurse authorized with prescriptive authority pursuant to §03-7-15a of this code; or

(E) A pharmacist licensed pursuant to article five, chapter thirty of this code.

(4) "Sexually transmitted disease" means a disease that may be treated by expedited partner therapy as determined by rule of the department.

§16-4F-2. Expedited partner therapy.

(a) Notwithstanding any other provision of law to the contrary, a health care professional who makes a clinical diagnosis of a sexually transmitted disease may provide expedited partner therapy for the treatment of the sexually transmitted disease if, in the judgment of the health care professional, the sexual partner is unlikely or unable to present for comprehensive health care, including evaluation, testing and treatment for sexually transmitted diseases. Expedited partner therapy is limited to a sexual partner who may have been exposed to a sexually transmitted disease within the previous sixty days and who is able to be contacted by the patient.

(b) Any health care professional who provides expedited partner therapy shall comply with all necessary provisions of article four of this chapter.

(c) A health care professional who provides expedited partner therapy shall provide counseling for the patient, including advice that all women and symptomatic persons, and in particular women with symptoms suggestive of pelvic inflammatory disease, are encouraged to seek medical attention. The health care professional shall also provide in written or electronic format materials provided by the department to be given by the patient to his or her sexual partner.

§16-4F-3. Informational materials.

(a) The department shall provide information and technical assistance as appropriate to health care professionals who provide expedited partner therapy. The department shall develop and disseminate in electronic and other formats the following written materials:

(1) Informational materials for sexual partners, as described in subsection (c), section two of this article;

(2) Informational materials for persons who are repeatedly diagnosed with sexually transmitted diseases; and

(3) Guidance for health care professionals on the safe and effective provision of expedited partner therapy.

(b) The department may offer educational programs about expedited partner therapy for health care professionals.

§16-4F-4. Limitation of liability.

(a) A health care professional who provides expedited partner therapy in good faith without fee or compensation under this article and provides counseling and written materials as required in subsection (c), section two of this article is not subject to civil or professional liability in connection with the provision of the therapy, counseling and materials, except in the case of gross negligence or willful and wanton misconduct. A health care professional is not subject to civil or professional liability for choosing not to provide expedited partner therapy.

(b) A pharmacist or pharmacy is not subject to civil or professional liability for choosing not to fill a prescription that would cause that pharmacist or pharmacy to violate any provision of article five, chapter thirty of this code.

§16-4F-5. Rulemaking.

The secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to designate certain diseases as sexually transmitted diseases which may be treated by expedited partner therapy. The department shall consider the recommendations and classifications of the federal Department of Health and Human Services, Centers for Disease Control and Prevention and other nationally recognized medical authorities in making these designations.

§16-5-1. Definitions.

As used in this article, unless the context otherwise requires, the following terms have the following meanings:

(1) "Bureau" means the Bureau for Public Health.

(2) "Commissioner" means the Commissioner of the Bureau for Public Health.

(3) "Date of filing" means the date a vital record is accepted for registration by the section of vital statistics of the state Bureau for Public Health.

(4) "Dead body" means a human body or parts of a human body or bones from the condition of which it reasonably may be concluded that death occurred.

(5) "Department" means the Department of Health.

(6) "Deputy local registrar" means a person appointed by and working under the supervision of a local registrar in the discharge of the vital statistics functions specified to be performed in and for the county or other district of the local registrar.

(7) "Fetal death" means death prior to the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy and which is not an induced termination of pregnancy, such death being indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles.

(8) "Filing" means the presentation and acceptance of a vital record or report provided in this article for registration by the section of vital statistics of the state Bureau for Public Health.

(9) "Final disposition" means the burial, interment, cremation, removal from the state, or other authorized disposition of a dead body or fetus.

(10) "Induced termination of pregnancy" means the purposeful interruption of an intrauterine pregnancy with the intention other than to produce a live-born infant, and which does not result in live birth. The definition excludes management of prolonged retention of products of conception following fetal death.

(11) "Institution" means any establishment, public or private, which provides inpatient or outpatient medical, surgical, or diagnostic care or treatment, or nursing, custodial or domiciliary care to two or more unrelated individuals or to which persons are committed by law.

(12) "Licensed health professional" means an individual who is licensed by the State of West Virginia to practice a health profession.

(13) "Live birth" means the complete expulsion or extraction from its mother of a product of human conception, irrespective of the duration of pregnancy, which, after such expulsion or extraction, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord or definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached.

(14) "Local registrar" means the person appointed by the state Registrar of Vital Statistics for a county or other district to perform the vital statistics functions specified to be performed in and for the county or other district.

(15) "Physician" means a person licensed to practice medicine or osteopathy pursuant to the laws of this state.

(16) "Registration" means the process by which vital records are completed, filed and incorporated into the official records of the section of vital statistics.

(17) "Research" means a systematic investigation designed primarily to develop or contribute to general knowledge.

(18) "System of vital statistics" means the registration, collection, preservation, amendment, certification of vital records, the collection of other reports required by this article, and related activities, including, but not limited to, the tabulation, analysis, publication and dissemination of vital statistics.

(19) "Vital records" means certificates or reports and data related to birth, death, and marriage, including divorce, dissolution of marriage, and annulment.

(20) "Vital reports" means reports and related data designated in this article and in rules.

(21) "Vital statistics" means the data derived from certificates and reports of birth, death, fetal death, marriage, divorce, annulment and related records and reports.

§16-5-2. Establishment of section of vital statistics in Bureau for Public Health.

(a) There is established in the state Bureau for Public Health a section of vital statistics which shall install, maintain and operate the only system of vital statistics throughout this state.

(b) The section of vital statistics shall be provided with sufficient staff, suitable offices with a fireproof vault and a nonliquid fire suppression system for the protection of paper records and magnetic media and other resources for the proper administration of the system of vital statistics and for the preservation and security of its official records.

§16-5-3. Department of Health to propose legislative rules.

(a) The Department of Health shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to provide for:

(1) Adequate standards of security and confidentiality of vital records;

(2) Requirements for individuals in the state who may be designated by the state Registrar to aid in the administration of the system of vital statistics;

(3) Criteria for registration districts throughout the state;

(4) Requirements for the completion, filing, correction and amendment of certificates, reports and other documents required by this article;

(5) Requirements for registering a delayed certificate of birth, including provisions for dismissing an application which is not actively pursued;

(6) Inspection of evidence of adoption, annulment of adoption, legitimation or court determination of paternity;

(7) Completion of the medical certification of the cause of death;

(8) Record keeping requirements for receipt, removal, delivery, burial, cremation or other final disposition of a dead body or a fetus;

(9) Authorization for the disinterment and reinterment of a dead body or a fetus;

(10) Extension of prescribed time periods for the filing of certificates of death, reports of fetal death and authorizations for disposition and disinterment and reinterment, including authorization for disposition prior to filing a certificate of death;

(11) Disposal of original records from which permanent reproductions have been made;

(12) Disclosure of confidential information for administrative, statistical or research purposes;

(13) Release of records of birth, death, fetal death, marriage, divorce or annulment, subject to the provisions of section twenty-seven of this article;

(14) Authorization for preparing, issuing or obtaining copies of vital records;

(15) Requirements for matching and marking certificates of birth and death for the purpose of preventing the fraudulent use of birth certificates;

(16) Utilization of social security numbers to meet requirements of federal law;

(17) Requirements for a statewide system of registering, indexing and preserving records of marriage, divorce and annulment of marriage; and

(18) Any other purpose to carry out the requirements of this article.

(b) Any rules in effect as of the passage of this article will remain in effect until amended, modified, repealed or replaced, except that references to provisions of former enactments of this article are interpreted to mean provisions of this article.

§16-5-4. Appointment of State Registrar of Vital Statistics.

The Commissioner of the Bureau for Public Health shall appoint the state Registrar of Vital Statistics, hereinafter referred to as the "State Registrar."

§16-5-5. Powers and duties of State Registrar.

(a) The State Registrar shall:

(1) Administer and enforce the provisions of this article and the rules promulgated pursuant to this article, and issue instructions for the efficient administration of the system of vital statistics;

(2) Direct and supervise the system of vital statistics and the operation of the section of vital statistics, and act as custodian of its records;

(3) Direct, supervise, and control all activities pertaining to the operation of the system of vital statistics;

(4) Conduct training programs to promote uniformity of policy and procedures throughout the state in matters pertaining to the system of vital statistics;

(5) Prescribe, furnish, and distribute forms required by this article and the rules promulgated pursuant to this article, and prescribe means for transmission of data to accomplish the purpose of complete and accurate reporting and registration;

(6) Prepare and publish annual reports of vital statistics of this state, and other reports required by the commissioner;

(7) Provide to local health agencies copies of or data derived from certificates and reports required under this article as the state Registrar may determine are necessary for local health planning and program activities: Provided, That the copies and data remain the property of the section of vital statistics, and the uses that may be made of them are governed by the state Registrar; and

(8) Offer voluntary paternity establishment services in accordance with federal regulations set forth in 45 CFR 303.5(g).

(b) The State Registrar may:

(1) Designate individuals in the state as meet the requirements provided by rule to aid in the efficient administration of the system of vital statistics;

(2) Delegate functions and duties to employees of the section of vital statistics and to individuals designated under subdivision (1) of this subsection;

(3) Investigate, personally or by a duly delegated representative, cases of irregularity or violation of law arising under the provisions of this article;

(4) Report cases of violation of any of the provisions of this article to the prosecuting attorney of the county, with a statement of the facts and circumstances. The prosecuting attorney may prosecute the person or corporation responsible for the alleged violation of law. Upon request of the state Registrar, the Attorney General shall assist in the enforcement of the provisions of this article.

§16-5-6. Registration districts.

Subject to the rules promulgated by the department, the commissioner may establish, eliminate, consolidate, subdivide or alter the boundaries of, registration districts throughout the state.

§16-5-7. Appointment and removal of local registrars and deputy local registrars.

(a) The State Registrar may appoint one or more local registrars and deputy local registrars, and may assign them to one or more registration districts.

(b) The State Registrar may remove a local registrar or a deputy local registrar for reasonable cause.

§16-5-8. Duties of local registrars and deputy local registrars.

(a) A local registrar shall:

(1) Administer and enforce the provisions of this article and the rules promulgated pursuant to this article, according to the instructions of the state Registrar;

(2) Require that certificates be completed and filed in accordance with provisions of this article and the rules promulgated pursuant to this article;

(3) Transmit, by mail or an approved electronic process, all certificates, reports or other returns to the state Registrar on a schedule to be determined by the state Registrar;

(4) Maintain records, make reports and perform other duties as required by the state Registrar.

(b) A deputy local registrar shall perform the duties of the local registrar in the absence or incapacity of the local registrar, and shall perform other duties as prescribed by the state Registrar.

§16-5-9. Content of certificates and reports.

(a) To promote uniformity in the system of vital statistics, in addition to the items required by state law, the forms of certificates, reports and other returns required by this article or by rules promulgated pursuant to this article shall include the items recommended by the federal agency responsible for national vital statistics, subject to the commissioner's approval or modification.

(b) The State Registrar shall approve the form and format for each certificate, report, and other documents required by this article.

(c) All vital records shall contain the date of filing.

(d) Information required in certificates, forms, records, or reports authorized by this article may be filed, verified, registered and stored by photographic, electronic, or other means as prescribed by the state Registrar.

§16-5-9a. Legal residences to be included on certificates of death.

In order to assist clerks of county commission fulfill their responsibilities under chapter forty-four of this code, the State Registrar shall require persons completing certificates of death, to include any known legal residences of the decedent, if different than the place of death.

§16-5-10. Birth registration acknowledgment and rescission of paternity.

(a) A certificate of birth for each live birth which occurs in this state shall be filed with the section of vital statistics, or as otherwise directed by the state Registrar, within seven days after the birth and shall be registered if it has been completed and filed in accordance with this section.

(b) When a birth occurs in transit to or in an institution, the person in charge of the institution or his or her authorized designee shall obtain all data required by the certificate, prepare the certificate, certify either by signature or by an approved electronic process that the child was born alive at the place and time and on the date stated, and file the certificate as directed in subsection (a) of this section. The physician or other person in attendance, or any person providing prenatal care shall provide the medical information required by the certificate within seventy-two hours after the birth.

(c) When a birth occurs other than in transit to or in an institution, the certificate shall be prepared and filed by one of the following persons in the indicated order of priority in accordance with legislative rule:

(1) The physician in attendance at or immediately after the birth;

(2) Any other person in attendance at or immediately after the birth;

(3) The father or the mother, or, in the absence of the father and the inability of the mother, the person in charge of the premises where the birth occurred; or

(4) Any other person qualified by the department by rule to establish the facts of birth.

(d) When a birth occurs on a moving conveyance within the United States and the child is first removed from the conveyance in this state, the birth shall be registered in this state, and the place where it is first removed shall be considered the place of birth. When a birth occurs on a moving conveyance while in international waters or air space or in a foreign country or its air space and the child is first removed from the conveyance in this state, the birth shall be registered in this state, but the certificate shall show the actual place of birth insofar as can be determined.

(e) For the purposes of birth registration, the woman who gives birth to the child is presumed to be the mother, unless otherwise specifically provided by state law or determined by a court of competent jurisdiction prior to the filing of the certificate of birth.

(f) If the mother was married at the time of either conception or birth, or between conception and birth, the name of the most recent husband shall be entered on the certificate as the father of the child, unless:

(1) Paternity has been determined otherwise by a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty-eight of this code or other applicable law, in which case the name of the father as determined by the court shall be entered on the certificate; or

(2) Genetic testing shows that the alleged father is the biological father of the child pursuant to the following guidelines:

(A) The tests show that the inherited characteristics including, but not limited to, blood types, have been determined by appropriate testing procedures at a hospital, independent medical institution or independent medical laboratory duly licensed under the laws of this state, or any other state, and an expert qualified as an examiner of genetic markers has analyzed, interpreted and reported on the results; and

(B) The blood or tissue or other genetic test results show a statistical probability of paternity of more than ninety-eight percent; or

(3) The mother, her husband, and an alleged father acknowledge that the husband is not the biological father and that the alleged father is the true biological father: Provided, That the conditions set forth in paragraphs (A) through (D) are met:

(A) The mother executes an affidavit of nonpaternity attesting that her husband is not the biological father of the child and that another man is the biological father; and

(B) The man named as the alleged biological father executes an affidavit of paternity attesting that he is the biological father; and

(C) The husband executes an affidavit of nonpaternity attesting that he is not the biological father; and

(D) Affidavits executed pursuant to the provisions of this subdivision may be joint or individual or a combination thereof, and each signature shall be individually notarized. If one of the parties is an unemancipated minor, his or her parent or legal guardian must also sign the respective affidavit.

(4) If the affidavits are executed as specified in subdivision (3) of this section, or genetic tests as specified in subdivision (2) of this section verify that the alleged father is the biological father, the alleged father shall be shown as the father on the certificate of live birth. Paternity established pursuant to subdivision (2) or (3) of this section establishes the father for all legal purposes including, but not limited to, the establishment and enforcement of child support orders, and may be rescinded only by court order upon a showing of fraud, duress or material mistake of fact.

(5) Paternity may be established pursuant to subdivision (2) or (3) of this section only when the husband's name does not appear as the father of a child on a registered and filed certificate of live birth and the affidavits or genetic tests are completed and submitted to the section of vital statistics within one year of the date of birth of the child.

(g) If the mother was not married at the time of either conception or birth, or between conception and birth, the name of the father shall not be entered on the certificate of birth without an affidavit of paternity signed by the mother and the person to be named as the father. The affidavit may be joint or individual and each signature shall be individually notarized.

(h) A notarized affidavit of paternity, signed by the mother and the man to be named as the father, acknowledging that the man is the father of the child, legally establishes the man as the father of the child for all purposes, and child support may be established pursuant to the provisions of chapter forty-eight of this code.

(1) The notarized affidavit of paternity shall include filing instructions, the parties' social security number and addresses and a statement that parties were given notice of the alternatives to, the legal consequences of, and the rights and obligations of acknowledging paternity, including, but not limited to, the duty to support a child. If either of the parents is a minor, the statement shall include an explanation of any rights that may be afforded due to the minority status.

(2) The failure or refusal to include all information required by subdivision (1) of this subsection shall not affect the validity of the affidavit of paternity, in the absence of a finding by a court of competent jurisdiction that it was obtained by fraud, duress or material mistake of fact, as provided in subdivision (4) of this subsection.

(3) The original notarized affidavit of paternity shall be filed with the state Registrar. If a certificate of birth for the child has been previously issued which is incorrect or incomplete, a new certificate of birth will be created and placed on file. The new certificate of birth will not be marked "Amended".

(4) Upon receipt of any notarized affidavit of paternity executed pursuant to this section, the state Registrar shall forward a copy to the Bureau for Child Support Enforcement.

(5) An acknowledgment executed under the provisions of this subsection may be rescinded as follows:

(A) The parent wishing to rescind the acknowledgment shall file with the clerk of the circuit court of the county in which the child resides a verified complaint stating the name of the child, the name of the other parent, the date of the birth of the child, the date of the signing of the affidavit of paternity, and a statement that he or she wishes to rescind the acknowledgment of the paternity. If the complaint is filed more than sixty days from the date of execution of the affidavit of paternity or the date of an administrative or judicial proceeding relating to the child in which the signatory of the affidavit of paternity is a party, the complaint shall include specific allegations concerning the elements of fraud, duress or material mistake of fact.

(B) The complaint shall be served upon the other parent as provided in Rule 4 of the West Virginia Rules of Civil Procedure.

(C) The family court judge shall hold a hearing within sixty days of the service of process upon the other parent.

(D) If the complaint was filed within sixty days of the date the affidavit of paternity was executed, the court shall order the acknowledgment to be rescinded without any requirement of a showing of fraud, duress, or material mistake of fact.

(E) If the complaint was filed more than sixty days from the date of execution of the affidavit of paternity or the date of an administrative or judicial proceeding relating to the child in which the signatory of the affidavit of paternity is a party, the court may set aside the acknowledgment only upon a finding, by clear and convincing evidence, that the affidavit of paternity was executed under circumstances of fraud, duress or material mistake of fact.

(F) The circuit clerk shall forward a copy of any order entered pursuant to this proceeding to the state Registrar by certified mail. The order shall state all changes to be made, if any, to the certificate of birth. The certificate of birth may not be marked "Amended."

(i) In any case in which paternity of a child is determined by a court of competent jurisdiction pursuant to the provisions of article twenty-four, chapter forty-eight of this code or other applicable law, the name of the father and surname of the child shall be entered on the certificate of birth in accordance with the finding and order of the court.

(j) If the father is not named on the certificate of birth, no other information about the father may be entered on the certificate.

(k) In order to permit the filing of the certificate of birth within the seven days prescribed in subsection (a) of this section, one of the parents of the child must verify the accuracy of the personal data to be entered on the certificate. Certificates of birth filed after seven days, but within one year from the date of birth, will be registered on the standard form of the certificate of birth and will not be marked "Delayed." The State Registrar may require additional evidence in support of the facts of birth for certificates filed after seven days from the date of birth.

(l) In addition to the personal data furnished for the certificate of birth issued for a live birth in accordance with the provisions of this section, a person whose name is to appear on the certificate of birth as a parent shall contemporaneously furnish to the person preparing and filing the certificate of birth the social security number or numbers issued to the parent. A record of the social security number or numbers shall be filed with the local registrar of the district in which the birth occurs within seven days after the birth, and the local registrar shall transmit the number or numbers to the state Registrar in the same manner as other personal data is transmitted to the state Registrar.

(m) The local registrar shall transmit by mail or an approved electronic process each month to the county clerk of each county the copies of the certificates of all births occurring in the county or the data extracted therefrom, from which copies the clerk shall compile records of the births and shall create an index to the birth records that shall be a matter of public record. The State Registrar shall prescribe the form of the index of births.

§16-5-11. Registration of infants and minors born with specified birth defects.

(a) When a live birth occurs, the physician or midwife in attendance at, or present immediately after, the birth shall examine the infant for any of the following birth defects:

(1) Anencephaly;

(2) Spina bifida;

(3) Hydrocephaly;

(4) Cleft palate;

(5) Total cleft lip;

(6) Esophageal atresia and atenosis;

(7) Rectal and anal atresia;

(8) Hypospadias;

(9) Reduction and deformity - upper limb;

(10) Reduction and deformity - lower limb;

(11) Congenital dislocation of the hip;

(12) Down's syndrome;

(13) Visual impairments;

(14) Sickle cell anemia; and

(15) Others as may be requested by the commissioner.

(b) If any such impairment is found in an infant, or in any subsequent examination of any minor which has not been previously diagnosed, the examining physician, midwife or other health care provider licensed under chapter thirty of the code shall within thirty days of the examination make a report of the diagnosis to the state Registrar or other agency within the bureau as designated by the commissioner on forms provided by the bureau. The report shall include the name of the child, the name or names of the parents or parent or guardian, a description of the impairment and other related information as specified by the commissioner.

(c) The information received by the state Registrar or other agency within the bureau as designated by the commissioner pursuant to this section pertaining to the identity of the persons named shall be kept confidential: Provided, That if consent of a parent, or of the guardian is obtained, the state Registrar or other agency within the bureau as designated by the commissioner may provide the information to federal, state, and local government agencies so that the information can be utilized to provide assistance or services for the benefit of the child.

§16-5-12. Notation on birth records of missing children.

(a) Upon receiving a report of the disappearance of any child born in this state, the state Registrar shall indicate in a clear and conspicuous manner in the child's birth record or by an electronic process that the child has been reported as missing, including the title and location of the law-enforcement agency providing the report.

(b) Upon receiving a request for any birth records containing a report of the disappearance of any child, the state Registrar shall immediately notify the local law-enforcement agency which provided the missing child report. The State Registrar shall transmit any relevant information concerning the applicant's identity, address and other pertinent data immediately to the relevant local law-enforcement agency.

(c) The State Registrar shall retain the original written request, or the details in an electronic format, until notified of the missing child's recovery or the child attains the age of eighteen.

(d) Upon notification that any missing child has been recovered, the state Registrar shall remove the report of the disappearance from the child's birth record.

§16-5-12a.

Repealed.

Acts, 2006 Reg. Sess., Ch. 249.

§16-5-12b.

Repealed.

Acts, 2006 Reg. Sess., Ch. 249.

§16-5-13. Registration of infants of unknown parentage.

(a) Whoever assumes the custody of a live-born infant of unknown parentage shall report, to the state Registrar, on a form and in a manner prescribed by the state Registrar, the following information:

(1) The date and city or county, or both, of finding;

(2) Sex and approximate birth date of child;

(3) Name and address of the person with whom or the institution with which the child has been placed for care;

(4) Name given to the child by the custodian of the child; and

(5) Other data required by the state Registrar.

(b) The place where the child was found shall be entered as the place of birth.

(c) A report registered under this section shall constitute the certificate of birth for the child.

(d) If the child is identified and a certificate of birth is found or obtained, the report registered under this section shall be placed in a special file and may not be subject to inspection except upon order of a court of competent jurisdiction or as provided by rule.

§16-5-14. Delayed registration of births.

(a) The State Registrar may register a delayed certificate of birth in accordance with a legislative rule to be promulgated by the department, which rule will provide for qualifications for applicants and the evidentiary documentation required. The rule may provide for the dismissal of an application which is not actively pursued.

(b) When a certificate of birth of a person born in West Virginia has not been filed within one year, a delayed certificate of birth may be filed in accordance with the legislative rule.

(c) A certificate of birth registered one year or more after the date of birth shall be registered on a delayed certificate of birth form. The delayed certificate of birth will show on its face the date of registration and will contain a summary statement of the evidentiary documentation submitted in support of the delayed registration.

(d) A delayed certificate of birth may not be registered for a deceased person.

(e) If the evidentiary documentation required is not filed with the application for a delayed registration of birth or the state Registrar has cause to question the validity or adequacy of the evidentiary documentation, the state Registrar may not register the delayed certificate of birth and shall advise the applicant of his or her right to seek an order from a court of competent jurisdiction.

(f) In addition to the required documentation and other data furnished in an application for a delayed registration of birth in accordance with the provisions of this section, a person whose name is to appear on the certificate of birth as a parent shall contemporaneously furnish with the application the social security number or numbers issued to the parent.

§16-5-15. Judicial procedure to establish facts of birth.

(a) If the state Registrar refuses to file a certificate of birth under the provisions of section ten or section fourteen of this article, a petition signed and sworn to by the petitioner may be filed in the circuit court of the county in which the petitioner resides or in the circuit court of Kanawha County for an order establishing a record of the date and place of the birth and the parentage of the person whose birth is to be registered.

(b) The petition may be made on a form prescribed and furnished or approved by the state Registrar, and must allege:

(1) That the person for whom a certificate of birth is sought was born in this state;

(2) That no certificate of birth can be found in the section of vital statistics or the office of any local custodian of certificates of birth;

(3) That diligent efforts by the petitioner have failed to obtain the evidence required in accordance with section ten or section fourteen of this article and of any rules promulgated pursuant to this article;

(4) That the state Registrar has refused to register a certificate of birth; and

(5) Such other allegations as may be required.

(c) The petition must be accompanied by a copy of the statement of the state Registrar made in accordance with section ten or section fourteen of this article and by copies of all evidentiary documentation which was submitted to the state Registrar in support of the registration.

(d) The court shall fix a time and place for hearing the petition and shall give the state Registrar not less than twenty days' notice of the hearing. The State Registrar, or his or her authorized representative, may appear and testify in the proceeding.

(e) If the court finds from the evidence presented that the person for whom a certificate of birth is sought was born in this state, it shall make findings as to the place and date of birth, parentage, and other findings as may be required and shall issue an order, on a form prescribed and furnished or approved by the state Registrar, to establish a record of birth. This order shall include the birth data to be registered, a description of the evidence presented, and the date of the court's action.

(f) The clerk of the court shall forward each order establishing a record of birth to the state Registrar not later than the tenth day of the calendar month following the month in which it was entered. The State Registrar shall register the order, which shall constitute the court order certificate of birth.

(g) Any order is final unless reversed, vacated or modified on appeal, and any appeal must be sought in the manner and within the time provided by law for appeals in other civil cases.

(h) In addition to the evidence presented to establish a court order certificate of birth in accordance with the provisions of this section, a person whose name is to appear on the court order certificate of birth as a parent shall furnish to the clerk of the circuit court the social security number or numbers issued to the parent. A record of the social security number or numbers shall be forwarded to the state Registrar along with the order establishing a court order certificate of birth.

§16-5-16. Certificate of adoption.

(a) When a court of competent jurisdiction has entered an order of adoption in this state, it shall require the preparation of a certificate of adoption on a form prescribed and furnished by the state Registrar. The certificate of adoption shall be certified by the clerk of the court and shall provide:

(1) Facts necessary to locate and identify the certificate of birth of the person adopted or, in the case of a person who was born in a foreign country, evidence from sources determined to be reliable by the court as to the date and place of birth;

(2) Information necessary to establish a new certificate of birth of the person adopted; and

(3) Information sufficient to identify the order of adoption.

(b) Each petitioner shall furnish the information necessary to prepare the certificate of adoption. The court may require any social service or welfare agency or any person having knowledge of the facts to provide the additional information as may be necessary to complete the certificate of adoption.

(c) Whenever an order of adoption is amended, vacated or annulled, the clerk of the court shall prepare a report, which shall include the facts necessary to identify the original certificate of adoption and the facts in the new order necessary to amend the birth record.

(d) Not later than the tenth day of each calendar month, the clerk of the court shall forward to the state Registrar certificates of adoption and reports of annulments or amendments entered in the preceding month, together with the related reports as the state Registrar shall require.

(e) When the state Registrar receives a certificate of adoption, report of annulment of adoption, or amendment of an order of adoption for a person born in a state other than West Virginia, he or she shall forward the certificate or report to the state Registrar in the state of birth.

(f) When the state Registrar receives a certificate of adoption, report of annulment of adoption, or amendment of an order of adoption for a person born in a foreign country, and the person was not a citizen of the United States at the time of birth, the state Registrar shall prepare a "Certificate of Foreign Birth" as provided by subsection (h), section eighteen of this article. If the person was born in Canada, the state Registrar shall send a copy of the certificate of adoption, report of annulment of adoption, or amendment of an order of adoption to the registration authority in Canada.

(g) When the state Registrar receives a certificate of adoption, report of annulment of adoption, or amendment of order of adoption for a person born in a foreign country who was a citizen of the United States at the time of birth, the state Registrar may not prepare a "Certificate of Foreign Birth" but shall notify the adoptive parents or the registrant of the procedures for obtaining a revised certificate of birth through the United States Department of State.

(h) In addition to the information furnished in accordance with subsection (b) of this section, each person whose name is to appear on the certificate of adoption as a parent, whether as an adoptive parent or as a natural parent who joins in the adoption without relinquishing parental rights, shall furnish to the clerk of the circuit court the social security number or numbers issued to the parent. A record of the social security number or numbers shall be forwarded to the state Registrar along with the certificate of adoption, as provided in subsection (d) of this section.

§16-5-17. Court reports of determination of paternity.

(a) When a court of competent jurisdiction has entered an order of paternity, the petitioner shall provide the information necessary for the clerk of the court to complete and certify a certificate of paternity on a form prescribed and furnished by the state Registrar. The certificate of paternity shall provide:

(1) Facts necessary to locate and identify the certificate of birth of the person whose paternity is determined;

(2) Information necessary to establish a new certificate of birth of the person whose paternity is determined; and

(3) Information sufficient to identify the order of paternity.

(b) Not later than the tenth day of each calendar month, the clerk of the court shall forward to the state Registrar certificates of paternity entered in the preceding month, together with related reports as the state Registrar shall require.

(c) In addition to providing the information necessary to establish a new certificate of birth of the person whose paternity has been determined, a person whose name is to appear on the certificate of paternity as a parent shall furnish to the clerk of the circuit court the social security number or numbers issued to the parent. A record of the social security number or numbers shall be forwarded to the state Registrar along with the certificate of paternity, as provided in subsection (b) of this section.

§16-5-18. Certificates of birth following adoption, legitimation, paternity acknowledgment and court determination of paternity.

(a) The State Registrar shall establish a new certificate of birth for a person born in West Virginia when he or she receives the following:

(1) A certificate of adoption as provided in section sixteen of this article or a certificate of adoption prepared and filed in accordance with the laws of another state, or a certified copy of the order of adoption, together with the information necessary to identify the original certificate of birth and to establish a new certificate of birth; or

(2) A request that a new certificate be established as prescribed by legislative rule, based upon evidence that:

(A) The person for whom the certificate is sought has been legitimated;

(B) A court of competent jurisdiction has determined the paternity of the person; or

(C) Both parents have acknowledged the paternity of the person.

(b) A new certificate of birth shall show the actual city, county and date of birth, if known, and shall be substituted for the original certificate of birth on file. The original certificate of birth and the evidence of adoption, legitimation, court determination of paternity, or affidavit of paternity may not be inspected except for the administration of the system of vital statistics or the Bureau for Child Support Enforcement, or upon order of a court of competent jurisdiction, or, in the case of an affidavit of paternity, the signatories to the affidavit or the adult subject of the affidavit, or as provided by legislative rule or as otherwise provided by state law.

(c) Upon receipt of a report of an amended order of adoption, the state Registrar shall amend the certificate of birth as provided by legislative rule.

(d) Upon receipt of a report or order of annulment of adoption, the state Registrar shall restore the original certificate of birth to its place in the files and the new certificate and evidence may not be inspected except for the administration of the system of vital statistics or Bureau for Child Support Enforcement, or upon order of a court of competent jurisdiction, or as provided by legislative rule or as otherwise provided by state law.

(e) Upon receipt of a written request and a sworn affidavit of paternity signed by both parents of a child born out of wedlock, the state Registrar shall place the name of the father on the certificate of birth and, if the child is under the age of eighteen and at the request of the parents, change the surname of the child in the manner prescribed by legislative rule.

(f) If no certificate of birth is on file for the person for whom a new certificate of birth is to be established under this section, a delayed certificate of birth must be filed with the state Registrar as provided in section fourteen or fifteen of this article before a new certificate of birth is established, except that when the date and place of birth and parentage have been established by a court of competent jurisdiction, a delayed certificate is not required.

(g) When a new certificate of birth is established by the state Registrar, all copies of the original certificate of birth in the custody of any other custodian of vital records in this state shall be sealed from inspection or forwarded to the state Registrar, as he or she shall direct.

(h) Upon receipt of the documentation set forth in subdivision (1) of this subsection, the state Registrar shall prepare and register a certificate in this state for a person born in a foreign country who is not a citizen of the United States and who was adopted through a court of competent jurisdiction in this state.

(1) The State Registrar shall establish the certificate upon receipt of:

(A) A certificate of adoption from the court ordering the adoption;

(B) Proof of the date and place of the child's birth; and

(C) A request that the certificate be prepared, from the court, the adopting parents, or the adopted person if he or she has attained the age of eighteen years.

(2) The certificate shall be labeled "Certificate of Foreign Birth" and shall show the actual country of birth. The certificate shall include a statement that it is not evidence of United States citizenship for the person for whom it is issued.

(3) After registration of the certificate of birth in the new name of the adopted person, the state Registrar shall seal and file the certificate of adoption, which may not be inspected except for the administration of the system of vital statistics, or upon order of a court of competent jurisdiction, or as provided by legislative rule or as otherwise provided by state law.

§16-5-18a.

Repealed.

Acts, 2006 Reg. Sess., Ch. 249.

§16-5-18b.

Repealed.

Acts, 2006 Reg. Sess., Ch. 249.

§16-5-19.  Death registration.(a) A certificate of death for each death which occurs in this state shall be filed with the section of vital statistics, or as otherwise directed by the State Registrar, within five days after death, and prior to final disposition, and shall be registered if it has been completed and filed in accordance with this section.

(1) If the place of death is unknown, but the dead body is found in this state, the place where the body was found shall be shown as the place of death.

(2) If the date of death is unknown, it shall be approximated. If the date cannot be approximated, the date found shall be shown as the date of death.

(3) If death occurs in a moving conveyance in the United States and the body is first removed from the conveyance in this state, the death shall be registered in this state and the place where it is first removed shall be considered the place of death.

(4) If death occurs in a moving conveyance while in international waters or air space or in a foreign country or its air space and the body is first removed from the conveyance in this state, the death shall be registered in this state but the certificate shall show the actual place of death insofar as can be determined.

(5) In all other cases, the place where death is pronounced shall be considered the place where death occurred.

(b) The funeral director or other person who assumes custody of the dead body shall:

(1) Obtain the personal data from the next of kin or the best qualified person or source available including the deceased person’s social security number or numbers, which shall be placed in the records relating to the death and recorded on the certificate of death;

(2) Within forty-eight hours after death, provide the certificate of death containing sufficient information to identify the decedent to the physician nurse responsible for completing the medical certification as provided in subsection (c) of this section; and

(3) Upon receipt of the medical certification, file the certificate of death: Provided, That for implementation of electronic filing of death certificates, the person who certifies to cause of death will be responsible for filing the electronic certification of cause of death as directed by the State Registrar and in accordance with legislative rule.

(c) The medical certification shall be completed and signed within twenty-four hours after receipt of the certificate of death by the physician, physician assistant or advanced practice registered nurse in charge of the patient’s care for the illness or condition which resulted in death except when inquiry is required pursuant to chapter sixty-one, article twelve or other applicable provisions of this code.

(1) In the absence of the physician, physician assistant or advanced practice registered nurse or with his or her approval, the certificate may be completed by his or her associate physician, any physician who has been placed in a position of responsibility for any medical coverage of the decedent, the chief medical officer of the institution in which death occurred, or the physician who performed an autopsy upon the decedent, provided inquiry is not required pursuant to chapter sixty-one, article twelve of this code.

(2) The person completing the cause of death shall attest to its accuracy either by signature or by an approved electronic process.

(d) When inquiry is required pursuant to article twelve, chapter sixty-one or other applicable provisions of this code, the state Medical Examiner or designee or county medical examiner or county coroner in the jurisdiction where the death occurred or where the body was found shall determine the cause of death and shall complete the medical certification within forty-eight hours after taking charge of the case.

(1) If the cause of death cannot be determined within forty-eight hours after taking charge of the case, the medical examiner shall complete the medical certification with a “Pending” cause of death to be amended upon completion of medical investigation.

(2) After investigation of a report of death for which inquiry is required, if the state Medical Examiner or designee or county medical examiner or county coroner decline jurisdiction, the state Medical Examiner or designee or county medical examiner or county coroner may direct the decedent’s family physician or the physician who pronounces death to complete the certification of death: Provided, That the physician is not civilly liable for inaccuracy or other incorrect statement of death unless the physician willfully and knowingly provides information he or she knows to be false.

(e) When death occurs in an institution and the person responsible for the completion of the medical certification is not available to pronounce death, another physician may pronounce death. If there is no physician available to pronounce death, then a designated licensed health professional who views the body may pronounce death, attest to the pronouncement by signature or an approved electronic process and, with the permission of the person responsible for the medical certification, release the body to the funeral director or other person for final disposition: Provided, That if the death occurs in an institution during court-ordered hospitalization, in a correctional facility or under custody of law-enforcement authorities, the death shall be reported directly to a medical examiner or coroner for investigation, pronouncement and certification.

(f) If the cause of death cannot be determined within the time prescribed, the medical certification shall be completed as provided by legislative rule. The attending physician or medical examiner, upon request, shall give the funeral director or other person assuming custody of the body notice of the reason for the delay, and final disposition of the body may not be made until authorized by the attending physician, medical examiner or other persons authorized by this article to certify the cause of death.

(g) Upon receipt of autopsy results, additional scientific study, or where further inquiry or investigation provides additional information that would change the information on the certificate of death from that originally reported, the certifier or any State Medical Examiner who provides such inquiry under authority of article twelve, chapter sixty-one of this code shall immediately file a supplemental report of cause of death or other information with the section of vital statistics to amend the record, but only for purposes of accuracy.

(h) When death is presumed to have occurred within this state but the body cannot be located, a certificate of death may be prepared by the state Registrar only upon receipt of an order of a court of competent jurisdiction which shall include the finding of facts required to complete the certificate of death. The certificate of death will be marked “Presumptive” and will show on its face the date of death as determined by the court and the date of registration, and shall identify the court and the date of the order.

(i) The local registrar shall transmit each month to the county clerk of his or her county a copy of the certificates of all deaths occurring in the county, and if any person dies in a county other than the county within the state in which the person last resided prior to death, then the state Registrar shall furnish a copy of the death certificate to the clerk of the county commission of the county where the person last resided, from which copies the clerk shall compile a register of deaths, in a form prescribed by the state Registrar. The register shall be a public record.

§16-5-20. Delayed registration of death.

(a) When a death occurring in this state has not been registered within the time period described by section nineteen of this article, a certificate of death may be filed subject to evidentiary documentation and other requirements as prescribed by legislative rule.

(b) If the required evidentiary documentation is not filed with the application for a delayed registration of death or the state Registrar has cause to question the validity or adequacy of the evidentiary documentation, the state Registrar may not register the delayed certificate of death and shall advise the applicant of his or her right to seek an order from a court of competent jurisdiction.

(c) A certificate of death registered one year or more after the date of death shall be marked "Delayed" and shall show on its face the date of the delayed registration.

§16-5-21. Reports of fetal death.

(a) Each fetal death of three hundred fifty grams or more, and if weight is unknown, of twenty completed weeks of gestation or more, calculated from the date the last normal menstrual period began to the date of delivery, which occurs in this state, shall be reported within five days after delivery to the section of vital statistics or as otherwise directed by the state Registrar.

(1) When a fetal death occurs, the person in charge of the institution or his or her designated representative shall prepare and file the report. In obtaining the information required by the report, all institutions shall use information gathering procedures, including worksheets, provided or approved by the state Registrar.

(2) When a fetal death occurs, the physician in attendance at or immediately after delivery shall prepare and file the report.

(3) When inquiry is required pursuant to article twelve, chapter sixty-one, or other applicable provisions of this code, the state Medical Examiner or designee or county medical examiner or county coroner shall investigate the cause of fetal death and shall prepare and file the report within five days. If after investigation, the state Medical Examiner or designee or county medical examiner or county coroner decline jurisdiction, the person declining jurisdiction may direct the local health officer to investigate the cause of fetal death and prepare and file the report.

(4) When a fetal death occurs in a moving conveyance and the fetus is first removed from the conveyance in this state, the place where the fetus was first removed from the conveyance will be considered the place of fetal death.

(b) When a fetus is found in this state and the place of death is unknown, the fetal death shall be recorded in this state, and the place where the fetus was found will be considered the place of fetal death.

§16-5-21a. Noah's Law; certificate of birth for a stillbirth; and contents of certificate.

(a) This section of the code shall be known as "Noah's Law".

(b) For the purposes of this section, the term "stillbirth" or "stillborn" means an unintended intrauterine fetal death occurring in this state.

(c) Following a report of fetal death as required by section twenty-one of this article, either the mother or father of a stillborn child may request that a certificate of birth resulting in stillbirth be issued by the State Registrar. Only the mother of the child may request a certificate if:

(1) The child has not been legitimized;

(2) A court has not determined the paternity of the child;

(3) If no father has been identified; or

(4) If the child was conceived as a result of a sexual assault as defined in article eight-b, chapter sixty-one of this code.

(d) The State Registrar may charge a fee for the issuance of the certificate. The fee shall be the same as the fee for a death certificate issued by the State Registrar.

(e) The certificate shall include, but is not limited to:

(1) The name of the stillborn child;

(2) The date of delivery;

(3) The county of delivery;

(4) The mother's name and birthplace;

(5) The father's name and birthplace; and

(6) The statement: "This certificate is not proof of live birth."

(f) The certificate does not affect the registration, filing or record requirements of this article, nor does the issuance of the certificate impose upon a coroner or medical examiner any additional duties to conduct an investigation.

§16-5-22. Reports of abortions.

(a) Each abortion, as defined in §16-2R-2 of this code, which occurs in this state, shall be reported to the section of vital registration no later than the 10th day of the month following the month the procedure was performed by the person in charge of the hospital in which the abortion was performed. The State Registrar shall prepare a form or provide a suitable electronic process for the transmission of the reports from the institution or physician to the section of vital registration. Information to be collected shall include:

(1) The gestational age of the fetus;

(2) The state and county of residence of the patient;

(3) The age of the patient;

(4) The type of medical or surgical procedure performed;

(5) The method of payment for the procedure;

(6) Whether birth defects were known, and if so, what birth defects;

(7) The date the abortion was performed;

(8) The exception contained in §16-2R-3 of this code under which the abortion was performed; and

(9) Related information as required by the commissioner, other applicable sections of this code, or by the legislative rule: Provided, That:

(A) No personal identifiers, including, but not limited to, name, street address, city, zip code, or social security number, will be collected; and

(B) Individual records may only be released for research purposes as approved by the state Registrar and may be released in a format designed to further protect the confidentiality of the woman as the state Registrar deems necessary.

(b) An analysis of the compiled information relating to induced terminations of pregnancy shall be included in the annual report of vital statistics.

(c) An electronic report of the compiled information under this section shall be provided to the licensing boards of the licensed medical professionals, as defined in §16-2R-2 of this code, and the Legislative Oversight Commission on Health and Human Resources Accountability on a quarterly basis.

(d) The provisions of this section do not apply to an termination of an ectopic pregnancy.

§16-5-23. Authorization for disposition and disinterment and reinterment permits.

(a) The funeral director or other person who assumes custody of a dead body shall obtain authorization prior to final disposition of the body.

(1) The physician or State Medical Examiner, county medical examiner or designee shall authorize final disposition of the body on a form or in a format prescribed by the state Registrar.

(2) If the body is to be cremated, authorization for cremation must be obtained from the state Medical Examiner, county medical examiner or county coroner on a form or in a format prescribed by the state Medical Examiner's office.

(b) Prior to final disposition of a fetus, irrespective of the duration of pregnancy, the funeral director, the person in charge of the institution, or other person assuming responsibility for final disposition of the fetus shall obtain from a parent authorization for final disposition on a form or in a format prescribed by the state Registrar.

(c) With the consent of the physician or State Medical Examiner or county medical examiner or designee who is to certify the cause of death, a dead body may be moved from the place of death for the purpose of being prepared for final disposition.

(d) An authorization for disposition issued under the law of another state which accompanies a dead body or fetus brought into this state shall be authority for final disposition of the body or fetus in this state.

(e) No sexton or other person in charge of any place in which interment or other disposition of dead bodies is made may inter or allow interment or other disposition of a dead body or fetus unless it is accompanied by authorization for final disposition.

(f) Each person in charge of any place for final disposition shall return all authorizations to the funeral director or person acting as such within ten days after the date of disposition and shall indicate the date of disposition on the authorization.

(g) Each person in charge of any place for final disposition shall keep a record of all bodies interred or otherwise disposed of on the premises under his or her charge. The record must contain the name of the deceased person, place of death, date of burial or disposal, name and address of the funeral director or person acting for him or her, and other information as may be required by legislative rule. The record shall at all times be open to official inspection.

(h) When there is no person in charge of the place for final disposition, the funeral director or person acting as such shall complete the authorization and write across the face of the authorization "No person in charge."

(i) Not later than the tenth day of each month, the funeral director or person acting as such shall transmit to the state Registrar, in the state where the death occurred, all authorizations received during the month.

(j) Authorization for disinterment and reinterment is required prior to disinterment of a dead body or fetus, except as authorized by legislative rule or otherwise provided by law or by order of a court of competent jurisdiction. The authorization must be issued by the local registrar to a licensed funeral director, embalmer, or other persons acting on their behalf, upon proper application.

§16-5-24. Extension of time for filing certificates, reports and authorizations.

(a) The department shall, by legislative rule, provide for the extension of the time periods prescribed in sections nineteen, twenty-one, twenty-two and twenty-three of this article for the filing of certificates of death, reports of fetal death, reports of induced termination of pregnancy, medical certifications of the cause of death, and for obtaining authorization for disposition, in cases in which compliance with the applicable prescribed period would result in undue hardship.

(b) The legislative rules shall provide for the authorization for disposition under section twenty-three of this article prior to the filing of a certificate of death in circumstances in which compliance with the requirement that the certificate be filed prior to the issuance of the permit would result in undue hardship.

§16-5-25. Correction and amendment of vital records.

(a) In order to protect the integrity and accuracy of vital records, a certificate or report registered under this article may be amended only in accordance with the provisions of this article or legislative rule.

(b) A certificate or report that is amended under this section must indicate that it has been amended, except as otherwise provided in this section or by legislative rule: Provided, That the department shall prescribe by legislative rule the conditions under which additions or corrections of minor deficiencies, including, but not limited to, the omission or misspelling of a first name, may be made to certificates or records within one year of the event without the certificate indicating that it has been amended.

(c) The State Registrar shall maintain a record which identifies the evidence upon which the amendment was based, the date of amendment, and the identity of the person making the amendment.

(d) Upon receipt of a certified copy of a court order of a court of competent jurisdiction changing the name of a person born in this state, and upon request of the person whose name is to be changed or his or her parent, guardian or legal representative, the state Registrar shall amend the certificate of birth to reflect the new name.

(e) If the required evidentiary documentation is not filed with the application for amending a vital record or the state Registrar has cause to question the validity or adequacy of the evidentiary documentation, the state Registrar may not amend the vital record and shall advise the applicant of his or her right to seek an order from a court of competent jurisdiction.

(f) When the state Registrar amends a certificate or report, he or she shall report the amendment to any other custodian of the vital record.

(g) When an amendment is made to a certificate of marriage or record of divorce or annulment, the local official issuing the marriage license or the court ordering the divorce or annulment shall forward copies of the amendment to the state Registrar.

(h) In addition to providing the information necessary to amend a certificate or record, a person whose name is to appear on the amended certificate as a parent shall furnish the social security number or numbers, issued to the parent, which must be forwarded to the state Registrar along with the information required for the amended certificate.

§16-5-26. Reproduction and preservation of records.

To preserve vital records and other original documents, the state Registrar is authorized to prepare typewritten, photographic, electronic, or other reproductions of certificates or reports and files in the section of vital statistics. When verified and approved by the state Registrar, the reproductions shall be accepted as the original records, and the documents from which permanent reproductions have been made may be disposed of as provided by legislative rule or other provisions of state law.

§16-5-27. Disclosure of information from vital records or vital reports.

In accordance with section twenty-six of this article and the legislative rules promulgated thereunder:

(a) The department shall, by legislative rule, provide for the disclosure of confidential information contained in vital records and reports for statistical research purposes. The legislative rule must require the submission of written requests for information and the execution of research agreements between the researcher and the state Registrar or local custodian of vital records and reports, which prohibit the release by the researcher of any information that may identify any person except as provided in the agreement.

(b) To protect the integrity and to ensure the proper use of vital records or reports, and to ensure the efficient and proper operation of the system of vital statistics, it shall be unlawful for any person to permit inspection of, or to disclose, confidential information contained in vital records or reports, or to copy or issue a copy of all or part of any vital record or report unless authorized by this article, by legislative rule or by order of a court of competent jurisdiction: Provided, That nothing in this article prohibits the release of information or data that would not identify any person named in a vital record or report.

(c) Appeals from decisions of the custodians of permanent local records refusing to disclose confidential information, or to permit inspection of or copying of confidential information under the authority of this section and legislative rules shall be made to the state Registrar, whose decisions shall be binding upon the local custodians of permanent local records.

(d) When one hundred years have elapsed after the date of birth, or fifty years have elapsed after the date of death, fetal death, marriage, or divorce or annulment, the records of these events in the custody of the state Registrar and local custodians shall, become available to the public without restriction unless otherwise prohibited or restricted by law, except for the release of social security numbers recorded on certificates or reports of birth, marriage, fetal death, or divorce, in accordance with legislative rule: Provided, That confidential information contained in the "Information for Medical and Health Use Only" section of the certificate of birth or report of fetal death shall never become available to the public.

(e) The federal agency responsible for national vital statistics may be furnished copies of records, reports, or data from the system of vital statistics as it may require for national statistics. The department shall enter into an agreement with the federal agency indicating the statistical or research purposes for which records, reports, or data may be used, and setting forth the support to be provided by the federal agency for the collection, processing and transmission of the records, reports or data. Upon written request, the state Registrar may approve, in writing, additional statistical or research uses of the records, reports or data supplied under the agreement.

(f) The State Registrar may furnish copies of records or data from the system of vital statistics to federal, state and local governmental agencies, provided that the copies or data are used solely in the conduct of their official duties.

(g) The State Registrar may, by agreement, transmit copies of records and other reports required by this article to offices of vital statistics outside this state when the records or other reports relate to residents of those jurisdictions or persons born in those jurisdictions. The agreement must specify the statistical and administrative purposes for which the records may be used and must provide instructions for the proper retention and disposition of the copies. Copies received by the section of vital statistics from offices of vital statistics in other states must be handled in the same manner as prescribed in this section.

§16-5-28. Copies from the system of vital statistics.

In accordance with §16-5-27 of this code and the legislative rules promulgated thereunder:

(a) The State Registrar and other custodians of vital records authorized to issue certified copies shall upon receipt of an application, issue a certified copy of a vital record in his or her custody to the registrant, his or her parents, spouse, adult children, grandchildren or great-grandchildren, legal guardian, or their respective authorized representative. Additionally, the State Registrar and other custodians of vital records, upon receipt of an application, shall issue a certified copy of a vital record in his or her custody to a child placing agency completing adoption on behalf of the department. Others may be authorized to obtain certified copies when they demonstrate that the record is needed for the determination or protection of his or her personal or property right. The department may promulgate rules to further define others who may obtain copies of vital records filed under this article.

(b) All forms and procedures used in the issuance of certified copies of vital records in the state shall be approved by the State Registrar. All certified copies of certificates of birth issued shall have security features that deter the document from being altered, counterfeited, duplicated, or simulated without ready detection in compliance with regulations issued by the federal government.

(c) Each copy or abstract issued shall show the date of registration, and copies or abstracts issued from records marked “Amended” shall be similarly marked and, when possible, show the effective date of the amendment. Copies issued from records marked “Delayed” shall be similarly marked and shall include the date of registration and a description of the evidence used to establish the delayed certificate. Any copy issued of a “Certificate of Foreign Birth” shall indicate the foreign birth and show the actual place of birth and the statement that the certificate is not proof of United States citizenship for the person for whom it is issued.

(d) A certified copy of a vital record issued in accordance with this section shall be considered for all purposes the same as the original, and shall be prima facie evidence of the facts stated in the record: Provided, That the evidentiary value of a certificate or record filed more than one year after the event, or a record which has been amended, or a certificate of foreign birth, shall be determined by the judicial or administrative body or official before whom the certificate is offered as evidence.

(e) Nothing in this section shall be construed to permit disclosure of information contained in the “Information for Medical and Health Use Only” section of the certificate of birth or the “Information for Statistical Purposes Only” section of the certificate of marriage or certificate of divorce or annulment unless specifically authorized by the State Registrar for statistical or research purposes. This information is not subject to subpoena or court order and is not admissible before any court, tribunal, or judicial body. Information collected for administrative use may not be included on certified copies of records, and may be disclosed only for administrative, statistical, or research purposes authorized by state or federal law and legislative rule.

(f) When the State Registrar receives information that a certificate may have been registered through fraud or misrepresentation, he or she may withhold issuance of any copy of that certificate.

(1) The State Registrar shall inform the registrant or the registrant's authorized representative of the right to request a hearing by the commissioner.

(2) The secretary of the department may authorize the State Registrar or another person to hold an investigation or hearing to determine if fraud or misrepresentation has occurred.

(3) If upon conclusion of a hearing or investigation no fraud or misrepresentation is found, copies may be issued.

(4) If fraud or misrepresentation is found by a preponderance of the evidence, the State Registrar shall remove the certificate from the file. The certificate and evidence will be retained but will not be subject to inspection or copying except upon order of a court of competent jurisdiction or by the State Registrar for purposes of prosecution or administration of the system of vital statistics.

(g) No person may prepare or issue any certificate which purports to be an original, certified copy, or copy of a vital record, except as authorized by this article, or by legislative rule.

§16-5-29. Fees for copies and searches.

(a) The commissioner shall prescribe the fees to be charged and collected by the state Registrar for certified copies of certificates or records, not to exceed $10 per copy, or for a search of the files or records when no copy is made: Provided, That the fee may be increased to a maximum of $12 per copy, at the discretion of the commissioner, after July 1, 2008.

(b) The commissioner may prescribe additional fees for the priority production or express delivery of certified copies.

(c) The State Registrar may furnish certified copies of birth and death records to state agencies and to organized charities free of charge when the certificates are needed in presenting claims to the federal government or to a state for public assistance. The State Registrar will keep a record of all certificates furnished pursuant to this subsection.

(d) Subject to the provisions set forth in section two, article two, chapter twelve of this code, there is hereby continued in the state Treasury a separate account which shall be designated "the vital statistics account."

(e) After July 1, 2006, and subject to the provisions set forth in section two, article two, chapter twelve of this code, there is established in the state Treasury a separate account which shall be designated "the vital statistics improvement fund." Funds deposited in this account will be used to modernize and automate the system of vital statistics in this state and may not be used to supplant existing funding necessary for the daily operation of the system of vital statistics. Funds in this account will be retained in a nonlapsing fund for the improvement of the system of vital statistics.

(f) The commissioner shall deposit $1 received under the provisions of this section for each certified copy to the "vital statistics improvement fund" and shall deposit $4 received under the provisions of this section for each certified copy to the General Revenue Fund account. The commissioner shall deposit the remainder of all fees received under the provisions of this section for certified copies and for priority production and express delivery to the vital statistics account.

(g) The commissioner is authorized to expend the moneys deposited in the vital statistics account in accordance with the laws of this state as necessary to implement this article. The Legislature shall appropriate all moneys in the vital statistics account as part of the annual state budget.

(h) The commissioner shall make an annual report to the Legislature on the vital statistics account, including the previous fiscal year's expenditures and projected expenditures for the next fiscal year.

§16-5-30. Persons required to keep records.

(a) Every person in charge of an institution as defined in this article shall keep a record of personal data concerning each person admitted or confined to the institution. The record must include information required for the certificates of birth and death and the reports of fetal death required by this article. The record shall be made at the time of admission from information provided by the person being admitted or confined, but when it cannot be so obtained, the information will be obtained from relatives or other persons acquainted with the facts. The name and address of the person providing the information will be included in the record.

(b) When a dead body or fetus is released or disposed of by an institution, the person in charge of the institution shall keep a record showing the name of the decedent, date of death, name and address of the person to whom the body or fetus is released, and date of removal from the institution. If final disposition is made by the institution, the date, place and manner of disposition will be recorded.

(c) A funeral director, embalmer, sexton or other person who removes from the place of death or transports or makes final disposition of a dead body or fetus, in addition to filing any certificate or other report required by this article or legislative rule, shall keep a record which identifies the body, and information as required by legislative rule pertaining to the receipt, removal, delivery, and burial or cremation of the body.

(d) Records maintained under this section must be retained for at least three years and must be made available for inspection by the state Registrar or his or her representative upon request.

§16-5-31. Duty to furnish information relative to vital events.

(a) Any person or institution required under this article to collect and maintain information regarding any birth, death, fetal death, marriage, or divorce or annulment, shall furnish the information to the state Registrar upon request.

(b) Any person or institution that in good faith provides information required by this article or legislative rules shall not be subject to criminal prosecution or any action for damages.

(c) Not later than the tenth day of the month following the month of occurrence, the administrator of each institution shall send to the section of vital statistics a list showing all births, deaths and fetal deaths occurring in that institution during the preceding month, on forms provided or approved by the state Registrar.

(d) Not later than the tenth day of the month following the month of occurrence, each funeral director shall send to the section of vital statistics a list showing all dead bodies embalmed or otherwise prepared for final disposition, or dead bodies finally disposed of, by the funeral director during the preceding month, on forms provided or approved by the state Registrar.

§16-5-32. Matching of birth and death certificates.

To protect the integrity of vital records and to prevent the fraudulent use of certificates of birth of deceased persons, the state Registrar is authorized to match certificates of birth and death, in accordance with legislative rule which requires that the fact of death and the matching identities be determined with reasonable certainty and to post the fact of death to the appropriate birth certificate. Copies issued from certificates of birth marked deceased shall be similarly marked.

§16-5-33. Limitation on use of social security numbers.

(a) A social security number obtained in the filing of a certificate of live birth, an application for a delayed registration of birth, a judicial order establishing a record of birth, an order of adoption, an affidavit of paternity or a judicial order establishing paternity, or any other record may not be transmitted to the clerk of the county commission.

(b) No social security number may appear upon the public record of the index of births or upon any certificate of birth registration issued by the state Registrar, local registrar, county clerk or any other issuing authority.

(c) The State Registrar may make social security numbers available to the Bureau for Child Support Enforcement upon its request, to be used solely in connection with the enforcement of child support orders.

(d) The section of vital statistics may utilize social security numbers in accordance with legislative rules of the department, as allowed by or to meet the requirements of federal regulations.

§16-5-34. Uniform system of registration of marriage, divorce and annulment of marriage.

(a) To encourage an efficient and uniform system of registration of marriage, divorce and annulment of marriage may be established in this state, the state Registrar shall provide for the registration of each marriage, divorce and annulment of marriage which occurs in this state.

(b) The commissioner may, subject to legislative rule:

(1) Install a statewide system of registering, indexing, and preserving records of marriage, divorce and annulment of marriage;

(2) Give instructions, and prescribe and furnish forms, for collecting, transcribing, compiling and preserving records and statistics of marriage, divorce and annulment of marriage; and

(3) Make and publish a statistical report of marriage, divorce and annulment of marriage in this state.

§16-5-35. Registration of marriages.

(a) On or before the tenth day of each month, the county clerk of each county shall forward to the state Registrar a report of all marriage records made by him or her during the previous month, on a form prescribed or furnished by the state Registrar.

(b) The State Registrar shall preserve and index all records received under the provisions of this section and shall upon request issue a certified copy of the records, which shall be prima facie evidence of the facts stated in the certified copies in all courts in this state.

§16-5-36. Registration of divorces and annulments of marriages.

(a) On and after July 1, 2006, a record of each divorce or annulment ordered by any court of competent jurisdiction in this state shall be filed by the clerk of the court with the section of vital statistics, and shall be registered if it has been completed and filed in accordance with this section. The record shall be prepared by the petitioner or his or her legal representative in the form prescribed or furnished by the state Registrar and shall be presented to the clerk of the court with the petition.

(b) The clerk of the court shall complete and certify each record. On or before the tenth day of each calendar month, the clerk shall forward to the section of vital statistics the records of each divorce or annulment order entered during the preceding calendar month.

(c) Failure of the clerk of the court to comply with the provisions of this section does not affect the validity of any order of divorce or annulment of marriage.

(d) The State Registrar shall preserve and index all records received under provisions of this section and shall upon request issue certified copies of the records, which shall be prima facie evidence of the facts stated in the certified copies in all courts in this state.

§16-5-37. Applicability to previously received certificates and reports.

The provisions of this article apply to all certificates of birth, death, marriage and divorce or annulment, reports of fetal death and induced terminations of pregnancy previously received by the section of vital statistics and in the custody of the state Registrar or any other custodian of vital records.

§16-5-38. Penalties.

(a) For acts which occur on or after the effective date of this section, a person shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned in a state correctional facility not more than five years, or both fined and imprisoned, if he or she:

(1) Willfully and knowingly makes any false statement in a report, record or certificate required to be filed under this article, or in an application for an amendment thereof, or willfully and knowingly supplies false information intending that the information be used in the preparation of any report, record or certificate, or amendment thereof, or in an application for a certified copy of a vital record required by this article; or

(2) Without lawful authority and with the intent to deceive, makes, counterfeits, alters, amends or mutilates any record, report, or certificate required by this article, or any certified copy of the record, report or certificate; or

(3) Willfully and knowingly obtains, possesses, uses, sells, furnishes or attempts to obtain, possess, use, sell or furnish to another, for any purpose of deception, any certificate, record, report, or certified copy required by this article, which was made, counterfeited, altered, amended, or mutilated, or that is false, in whole or in part, or that relates to the birth of another person, whether living or deceased; or

(4) Is an employee of the section of vital statistics or of any office of any custodian of vital records, and willfully and knowingly furnishes or processes a certificate of birth, or certified copy of a certificate of birth, with the knowledge or intention that it be used for the purposes of deception; or

(5) Without lawful authority, possesses any certificate, record or report required by this article or a copy or a certified copy of the certificate, record or report knowing it to have been stolen or otherwise unlawfully obtained.

(b) A person shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or confined in jail not more than one year, or both fined and confined, if he or she:

(1) Willfully and knowingly transports or accepts for transportation, interment or other disposition a dead body without an accompanying permit as provided in this article;

(2) Willfully and knowingly refuses to provide information required by this article or legislative rules adopted pursuant to this article; or

(3) Willfully and knowingly violates any of the provisions of this article or refuses to perform any of the duties imposed upon him or her by this article.

§16-5A-1. Cancer control.

The director of the state department of health shall execute and administer the provisions of this article relating to the diagnosis, treatment and care of persons suffering from cancer. The director shall have authority to direct, control, govern and provide for the management of any state institution for the care and treatment of cancer patients which may hereafter be created by law.

§16-5A-2. Educational program.

The director shall formulate and put into effect throughout the state an educational program for the purpose of preventing cancer and of aiding in its early diagnosis, and for the purpose of giving information to hospitals and cancer patients concerning the proper treatment. In furtherance of this program, the director may assist and cooperate with any state or national organization conducting an educational program for the prevention of cancer.

§16-5A-2a. Cancer and tumor registry.

(a) To the extent funds are available, the director of the division of health shall establish a cancer and tumor registry for the purpose of collecting information concerning the incidence of cancer and nonmalignant intracranial and central nervous system tumors. The information collected by the registry shall be analyzed to prepare reports and perform studies as necessary when such data identifies hazards to public health. Pending appropriate funding, a statewide system shall be phased in and be fully operational by July 1, 2002, pursuant to the enactment of this section in 2001.

(b) All reporting sources, including hospitals, physicians, laboratories, clinics or other similar units diagnosing or providing treatment for cancer and nonmalignant intracranial and central nervous system tumors, shall provide a report of each cancer or tumor case to the cancer and tumor registry in a format specified by the director. The reporting sources shall grant the director or an authorized representative of the registry access to all records which would identify cases of cancer or nonmalignant intracranial and central nervous system tumors or would establish characteristics of cancer or nonmalignant intracranial or central nervous system tumors.

(c) All information reported pursuant to this section is confidential and shall be used for the purpose of determining the sources of malignant neoplasms and nonmalignant intracranial and central nervous system tumors and evaluating measures designed to eliminate, alleviate or ameliorate their effect. A report provided to the cancer and tumor registry disclosing the identity of an individual who was reported as having cancer or tumors shall only be released to reporting sources and persons demonstrating a need which is essential to health related research, except that the release shall be conditioned upon the reporting source and personal identities remaining confidential. No liability of any kind or character for damages or other relief shall arise or be enforced against any reporting source by reason of having provided the information or material to the cancer and tumor registry.

(d) The director of the division of health shall appoint an advisory committee on cancer and tumors with membership consisting of representatives of appropriate agencies, including the West Virginia hospital association; the American cancer society, West Virginia division; the American lung association of West Virginia; the West Virginia medical association; the association of osteopathic medicine; the West Virginia nurses association; the Mary Babb Randolph cancer center; and, at the discretion of the director, any other individuals directly involved. The advisory committee shall provide technical guidance regarding the operation of the cancer registry and shall provide such advice and assistance as needed to carry out effective cancer prevention and control activities. The members of the advisory committee shall serve four-year terms. Vacancies shall be filled in a like manner for the unexpired term.

(e) The director shall promulgate rules related to: (1) The content and design of all forms and reports required by this section; (2) the procedures for disclosure of information gathered by the cancer and tumor registry by monitoring and evaluating health data and from completed risk assessments; and (3) any other matter necessary to the administration of this section.

§16-5A-3. Establishment of clinics.

The director shall have authority to prescribe standard minimum requirements for the organization, equipment and conduct of cancer units or clinics in general hospitals of the state. The director shall establish and maintain, or aid in the establishment and maintenance of, a sufficient number of cancer diagnostic and treatment clinics meeting such requirements, so located that they are within reasonable traveling distance of any citizen of the state in need of treatment. In the establishment and operation of such clinics and in the fixing of such minimum requirements, the director shall consult and cooperate with the West Virginia state medical association.

In order to determine the progress of the disease and the success of the treatment being used, the director shall insofar as practicable provide a method for following up each case and bringing the patient back to the clinic at frequent intervals.

§16-5A-4. Tissue diagnostic service.

The director shall furnish, within the limits of available funds, free tissue diagnostic service to all needy patients. In providing this service the director may use either the state- owned laboratory in the department of health, or privately owned laboratories approved by the department.

§16-5A-5. Care of needy patients.

The Bureau of Public Health may prescribe rules and regulations specifying to what extent and on what terms and conditions needy cancer patients may receive financial aid for the diagnosis and treatment of cancer in any approved hospital in this state. The director is authorized to furnish aid, within the limits of available funds, to such patients and shall have the power to administer such aid in any manner which in his or her judgment will afford the greatest benefit to cancer patients throughout the state.

In determining whether a particular patient is entitled to such assistance the director may call upon the Department of Human Services for such investigation as may be required. In order to receive such aid, however, the patient need not qualify for public assistance as administered by the Department of Human Services.

§16-5A-6.

Repealed.

Acts, 1997 Reg. Sess., Ch. 61.

§16-5A-7.

Repealed.

Acts, 1997 Reg. Sess., Ch. 61.

§16-5A-8.

Repealed.

Acts, 1997 Reg. Sess., Ch. 61.

§16-5A-9.

Repealed.

Acts, 1997 Reg. Sess., Ch. 61.

§16-5A-9a.

Repealed.

Acts, 2013 Reg. Sess., Ch. 27.

§16-5A-10.

Repealed.

Acts, 1997 Reg. Sess., Ch. 61.

§16-5B-1. Health facilities and certain other facilities operated in connection therewith to obtain license; exemptions; meaning of hospital, etc.

No person, partnership, association, corporation, or any state or local governmental unit or any division, department, board or agency thereof shall establish, conduct, or maintain in the State of West Virginia any ambulatory health care facility, ambulatory surgical facility, freestanding or operated in connection with a hospital, hospital or extended care facility operated in connection with a hospital, without first obtaining a license therefor in the manner hereinafter provided: Provided, That only one license shall be required for any person, partnership, association, corporation or any state or local governmental unit or any division, department, board or agency thereof who operates any combination of an ambulatory health care facility, ambulatory surgical facility, hospital, extended care facility operated in connection with a hospital, or more than one thereof, at the same location. Ambulatory health care facilities, ambulatory surgical facilities, hospitals, or extended care facilities operated in connection with a hospital operated by the federal government shall be exempt from the provisions of this article.

A "hospital" or "extended care facility operated in connection with a hospital", within the meaning of this article, shall mean any institution, place, building or agency in which an accommodation of five or more beds is maintained, furnished or offered for the hospitalization of the sick or injured: Provided, That nothing contained in this article shall apply to nursing homes, rest homes, personal care facilities, homes for the aged, extended care facilities not operated in connection with a hospital, boarding homes, homes for the infirm or chronically ill, convalescent homes, hotels or other similar places that furnish to their guests only board and room, or either of them: Provided, however, That the hospitalization, care or treatment in a household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, shall not be deemed to constitute the premises a hospital or extended care facility operated in connection with a hospital, within the meaning of this article. "Hospital" shall include state hospitals as defined by §27-1-6 of this code.

An "ambulatory health care facility" shall include any facility which provides health care or mental health care to noninstitutionalized persons on an outpatient basis. This definition does not include the legally authorized practice of medicine by any one or more persons in the private office of any health care provider.

"Ambulatory surgical facility" means a facility which provides surgical treatment to patients not requiring hospitalization. This definition does not include the legally authorized practice of surgery by any one or more persons in the private office of any health care provider.

Nothing in this article or the rules and regulations adopted pursuant to the provisions of this article shall be construed to authorize the licensure, supervision, regulation or control in any manner of (1) private offices of physicians, dentists or other practitioners of the healing arts; (2) dispensaries and first aid stations located within business or industrial establishments maintained solely for the use of employees: Provided, That such facility does not contain inpatient or resident beds for patients or employees who generally remain in the facility for more than 24 hours.

Nothing in this article shall authorize any person, partnership, association, corporation, or any state or local governmental unit or any division, department, board or agency thereof to engage in any manner in the practice of medicine, as defined by law. This article shall not be construed to restrict or modify any statute pertaining to the placement or adoption of children.

§16-5B-2. Hospitals and institutions to obtain license; qualifications of applicant.

No person, partnership, association, corporation or any local governmental unit or any division, department, board or agency thereof may continue to operate an existing ambulatory health care facility, ambulatory surgical facility, hospital or extended care facility operated in connection with a hospital, or open an ambulatory health care facility, ambulatory surgical facility, a hospital or extended care facility operated in connection with a hospital, unless such operation shall have been approved and regularly licensed by the state as hereinafter provided. Licenses shall be issued for a particular number by type of beds and/or type of services. Any change in the number by type of bed and/or type of services shall require the issuance of a new license.

Before a license shall be issued under this article, the person applying, if an individual, shall submit evidence satisfactory to the state department of health that he is not less than eighteen years of age, of reputable and responsible character and otherwise qualified. In the event the applicant is an association, corporation or governmental unit, like evidence shall be submitted as to the members thereof and the persons in charge.

Every applicant shall, in addition, submit satisfactory evidence of his ability to comply with the minimum standards and with all rules and regulations lawfully promulgated. Every applicant shall further submit satisfactory evidence that he has implemented the paternity program created pursuant to section thirteen of this article.

§16-5B-3. Application for license.

Any person, partnership, association, or corporation, or any local governmental unit or any division, department, board or agency thereof desiring a license hereunder shall file with the state department of health a verified application stating the name of the applicant, and if the applicant is an individual, his age; the type of institution to be operated; the location thereof; the name of the person in charge thereof; and such other information as the state department of health may require. An application on behalf of a corporation, association or governmental unit shall be made by any two officers thereof or by its managing agents and shall contain like information. The application shall be on a form prescribed, prepared and furnished by the state department of health.

§16-5B-4. License fees.

The application of any person, partnership, association, corporation, or local government unit for a license to operate a hospital or extended care facility operated in connection with a hospital, shall be accompanied by a fee to be determined by the number of beds available for patients, according to the following schedule of fees: Those with five beds but less than fifty beds shall pay a fee of $500; those with fifty beds or more and less than one hundred beds shall pay a fee of $750; those with one hundred beds or more and less than two hundred beds shall pay a fee of $1,000; and those with two hundred beds or more shall pay a fee of $1,250. The director may annually adjust the licensure fees for inflation based upon the consumer price index. The application of any person, partnership, association, corporation, or local governmental unit for a license to operate an ambulatory health care facility or ambulatory surgical facility shall be accompanied by a reasonable fee to be determined by the director, based on the number of patients served by the facility. No such fee shall be refunded. All licenses issued under this article shall expire on June 30 following their issuance, shall be on a form prescribed by the state department of health, shall not be described in the application, shall be posted in a conspicuous place on the licensed premises, and may be renewed from year to year upon application, investigation and payment of the license fee, as in the case of the procurement of an original license: Provided, That any such license in effect on June 30 of any year, for which timely application for renewal, together with payment of the proper fee, has been made to the state department of health in conformance with the provisions of this article and the rules and regulations issued thereunder, and prior to the expiration date of such license, shall continue in effect until (a) June 30 next following the expiration date of such license, or (b) the date of the revocation or suspension of such license pursuant to the provisions of this article, or (c) the date of issuance of a new license, whichever date first occurs: Provided, however, That in the case of the transfer of ownership of a facility with an unexpired license, the application of the new owner for a license shall have the effect of a license for a period of three months when filed with the director. All fees received by the state department of health under the provisions of this article shall be deposited in accordance with section thirteen, article one of this chapter.

§16-5B-5. Inspection.

Every building, institution or establishment for which a license has been issued shall be inspected periodically by a duly appointed representative of the state department of health under rules and regulations to be promulgated by the department. Inspection reports shall be prepared on forms prescribed by the state department of health. Institutions licensed hereunder shall in no way be exempt from being inspected or licensed under the laws of this state relative to hotels, restaurants, lodginghouses, boardinghouses and places of refreshment.

§16-5B-5a. Accreditation reports accepted for periodic license inspections.

Notwithstanding any other provision of this article, a periodic license inspection shall not be conducted by the Department of Health and Human Resources for a hospital if the hospital has applied for and received an exemption from that requirement: Provided, That no exemption granted diminishes the right of the Department of Health and Human Resources to conduct complaint inspections.

The Department of Health and Human Resources shall grant an exemption from a periodic license inspection during the year following accreditation if a hospital applies by submitting evidence of its accreditation by the Joint Commission on Accreditation of Health Care Organizations or the American Osteopathic Association, or any accrediting organization approved by the Centers for Medicare and Medicaid Services, and submits a complete copy of the accrediting organization’s accreditation report.

If the accreditation of a hospital is for a period longer than one year, the Department of Health and Human Resources may conduct at least one license inspection of the hospital after the first year of accreditation and before the accreditation has expired and may conduct additional license inspections if needed. Hospitals receiving a three-year accreditation shall conduct annual self-evaluations using the current year accreditation manual for hospitals unless the Department of Health and Human Resources informs the hospital that the hospital will be inspected by the Department of Health and Human Resources. Hospitals are not required to conduct self-evaluations for any calendar year during which they are inspected by the Department of Health and Human Resources. These self-evaluations shall be completed and placed on file in the hospital by March 31 of each year. Hospitals shall make the results of the self-evaluation available to the Department of Health and Human Resources if requested.

Accreditation reports filed with the Department of Health and Human Resources shall be treated as confidential in accordance with §16-5B-10 of this code.

§16-5B-6. State director of health to issue licenses; suspension or revocation.

The state director of health is hereby authorized to issue licenses for the operation of ambulatory health care facilities, ambulatory surgical facilities, hospitals or extended care facilities operated in connection with hospitals, which are found to comply with the provisions of this article and with all regulations lawfully promulgated by the department.

The state director of health is hereby authorized to suspend or revoke a license issued hereunder, on any of the following grounds:

(1) Violation of any of the provisions of this article or the rules and regulations issued pursuant thereto;

(2) Knowingly permitting, aiding or abetting the commission of any illegal act in such institution;

(3) Conduct or practices detrimental to the health or safety of the patients and employees of such institution; or

(4) Operation of beds or services not specified in the license.

Before any such license is suspended or revoked, however, written notice shall be given the licensee, stating the grounds of the complaint, and the date, time and place set for the hearing on the complaint, which date shall not be less than thirty days from the time notice is given. Such notice shall be sent by registered mail to the licensee at the address where the institution concerned is located. The licensee shall be entitled to be represented by legal counsel at the hearing.

If a license is revoked as herein provided, a new application for a license shall be considered by the director of health if, when, and after the conditions upon which revocation was based have been corrected and evidence of this fact has been furnished. A new license shall then be granted after proper inspection has been made and all provisions of this article and rules and regulations promulgated hereunder have been satisfied.

All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern any hearing authorized and required by the provisions of this article and the administrative procedure in connection with and following any such hearing, with like effect as if the provisions of said article five were set forth in extenso in this section.

§16-5B-6a. Consumer majorities on hospital boards of directors.

[Repealed.]

§16-5B-7. Judicial review.

Any applicant or licensee who is dissatisfied with the decision of the state department of health as a result of the hearing provided in section six may, within thirty days after receiving notice of the decision, appeal to the circuit court, in term or in vacation, of the county in which the applicant or licensee is located for judicial review of the decision. The court may, if it so desires, refer the matter to a commissioner in chancery for a hearing, with a request that he report to the court his findings of fact together with his recommendation.

The department shall promptly certify and file in the court the transcript of the hearings on which its decision is based.

Findings of fact by the department shall be considered as prima facie correct, but the court may remand the case to the department for the taking of further evidence. The department may thereupon make new or modified findings of fact which shall likewise be considered as prima facie correct. All evidence in the case shall be held secret until the final order is issued by the court which order shall be made public.

The court shall have the power to affirm, modify or reverse the decision of the department and either the applicant or licensee or the department may appeal from the court's decision to the Supreme Court of Appeals. Pending the final disposition of the matter the status quo of the applicant or licensee shall be preserved.

§16-5B-8. State board of health to establish standards; director enforces.

The board of health shall have the power to promulgate rules and regulations and the director shall have the power to enforce such rules and regulations, as the board of health may establish, not in conflict with any provision of this article, as it finds necessary, or in the public interest, in order to protect patients in institutions required to be licensed under this article from detrimental practices and conditions, or to ensure adequate provision for their accommodations and care. No rule or regulation or standard of the board shall be adopted or enforced which would have the effect of denying a license to a hospital or other institution required to be licensed hereunder, solely by reason of the school or system of practice employed or permitted to be employed by physicians therein: Provided, That such school or system of practice is recognized by the laws of this state.

§16-5B-8a.

Repealed.

Acts, 1995 Reg. Sess., Ch. 123.

§16-5B-9. Hospitals and similar institutions required to supply patients, upon request, with one specifically itemized statement of charges assessed to patient, at no cost to patient.

Any hospital, or other similar institution, required to be licensed under this article, upon request, shall supply to any patient who has received services from the hospital, whether on an inpatient or outpatient basis, one itemized statement which describes with specificity the exact service or medication for which a charge is assessed to the patient at the institution, at no additional cost to the patient. In the event of the death of any such patient, a relative or guardian may make such request and shall receive such statement at no additional cost.

§16-5B-10. Information not to be disclosed; exception.

Information received by the state department of health under the provisions of this article shall be confidential and shall not be publicly disclosed except in a proceeding involving the question of the issuance or revocation of a license.

§16-5B-11. Violations; penalties.

Any person, partnership, association or corporation, and any local governmental unit or any division, department, board or agency thereof establishing, conducting, managing or operating an ambulatory health care facility, ambulatory surgical facility, a hospital, or extended care facility operated in connection with a hospital, without first obtaining a license therefor as herein provided, or violating any provision of this article or any rule or regulation lawfully promulgated thereunder, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished for the first offense by a fine of not more than $100, or by imprisonment in the county jail for a period of not more than ninety days, or by both such fine and imprisonment, in the discretion of the court. For each subsequent offense the fine may be increased to not more than $500, with imprisonment in the county jail for a period of not more than ninety days, or both such fine and imprisonment, in the discretion of the court. Each day of a continuing violation after conviction shall be considered a separate offense.

§16-5B-12. Injunction; severability.

Notwithstanding the existence or pursuit of any other remedy, the director may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, corporation, or any local governmental unit, or any division, department, board or agency thereof, to restrain or prevent the establishment, conduct, management or operation of any ambulatory health care facility, ambulatory surgical facility, hospital or extended care facility operated in connection with a hospital without first obtaining a license therefor in the manner hereinbefore provided.

If any part of this article shall be declared unconstitutional, such declaration shall not affect any other part thereof.

§16-5B-13. Hospital-based paternity program.

(a) Every public and private hospital licensed pursuant to section two of this article and every birthing center licensed pursuant to section two, article two-e of this chapter, that provides obstetrical services in West Virginia shall participate in the hospital-based paternity program.

(b) The Bureau for Child Support enforcement as described in article eighteen, chapter forty-eight of this code shall provide all public and private hospitals and all birthing centers providing obstetric services in this state with:

(1) Information regarding the establishment of paternity;

(2) An acknowledgment of paternity fulfilling the requirements of subsection (i), section twelve, article five, chapter sixteen of this code; and

(3) The telephone contact number for the Bureau for Child Support enforcement that a parent may call for further information regarding the establishment of paternity.

(c) Prior to the discharge from any facility included in this section of any mother who has given birth to a live infant, the administrator, or his or her assignee, shall ensure that the following materials are provided to any unmarried woman and any person holding out to be the natural father of the child:

(1) Information regarding the establishment of paternity;

(2) An acknowledgment of paternity fulfilling the requirements of subsection (i), section twelve, article five, chapter sixteen of this code; and

(3) The telephone contact number for the Bureau for Child Support enforcement that a parent may call for further information regarding the establishment of paternity.

(d) The Bureau for Child Support enforcement shall notify the state department of health of any failure of any hospital or birthing center to conform with the requirements of this section.

(e) Any hospital or birthing center described in this article should provide the information detailed in subsection (c) of this section at any time when such facility is providing obstetrical services.

§16-5B-14. Rural Emergency Hospital Act.

(a) Definitions – As used in this section:

(1) "Critical Access Hospital" means a hospital that has been deemed eligible and received designation as a critical access hospital by the Centers for Medicare and Medicaid Services (CMS).

(2) "Rural Emergency Hospital" means a facility that:

(A) Was a critical access hospital;

(B) Does not provide acute care inpatient services; and

(C) Provides, at a minimum, rural emergency hospital services.

(3) "Rural Emergency Hospital Services" means emergency department services and

observation care furnished by a rural emergency hospital that does not exceed an annual per patient average of 24 hours in such rural emergency hospital.

(4) "Staffed Emergency Department" means an emergency department of a rural emergency hospital that meets the following requirements:

(A) The emergency department is staffed 24 hours a day, 7 days a week; and

(B) A licensed physician, advanced practice registered nurse, clinical nurse specialist, or

physician assistant is available to furnish rural emergency hospital services in the facility 24 hours a day.

(b) A hospital located in an urban area (Metropolitan Statistical Areas (MSA) county), can be considered rural for the purposes of a designation as a critical access hospital pursuant to U.S.C. §1395i-4(c)(2) if it meets the following criteria:

(1) Is enrolled as both a Medicaid and Medicare provider and accepts assignment for all

Medicaid and Medicare patients;

(2) Provides emergency health care services to indigent patients;

(3) Maintains 24-hour emergency services; and

(4) Is located in a county that has a rural population of 50 percent or greater as determined

by the most recent United States decennial census.

(c) A critical access hospital may apply to be licensed as a rural emergency hospital if:

(1) It has been designated as a critical access hospital for at least one year; and

(2) It is designated as a critical access hospital at the time of application for licensure as a rural emergency hospital.

(d) In addition to the requirements of subsection (c) of this section, rural emergency hospital shall, at a minimum:

(1) Provide rural emergency hospital services through a staffed emergency department;

(2) Treat all patients regardless of insurance status; and

(3) Have in effect a transfer agreement with a Level I or Level II trauma center.

(e) A rural emergency hospital may:

(1) With respect to services furnished on an outpatient basis, provide other medical and

health services as specified by the secretary through rulemaking; and

(2) Include a unit of a facility that is a distinct part licensed as a skilled nursing facility to

furnish post-hospital extended care services.

(f) The department shall propose a rule for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to implement the provisions of this section.

§16-5B-15. Hospital visitation.

(a) A public or private hospital licensed pursuant to the provisions of section two of this article is required to permit patient visitation privileges for nonrelatives unless otherwise requested by the patient or legal designee. For purposes of this section, the term "legal designee" means and includes those persons eighteen years of age or older, appointed by the patient to make health care decisions for the patient pursuant to the provisions of section six, article thirty of this chapter.

(b) It is the intent of the Legislature that this section facilitate a patient's visitation with nonrelative individuals, and may not, in any way, restrict or limit allowable uses and disclosures of protected health information pursuant to the Health Insurance Portability and Accountability Act, 42 U.S.C. §1320d-2 and the accompanying regulations in 45 CFR 164.500.

(c) No provision of this section may be construed to prevent a hospital from otherwise restricting visitation privileges in order to prevent harm to the patient or disruption to the facility.

§16-5B-16. Public notice regarding the closure of a licensed health care facility or hospital.

(a) Any hospital, extended care facility operated in connection with a hospital, ambulatory health care facility, or ambulatory surgical facility freestanding or operated in connection with a hospital licensed in the State of West Virginia under this article that intends to terminate operations shall provide at least three weeks’ notice of such intent to the public prior to the actual termination of operations. Pursuant to the provisions of §59-3-1 et seq. of this code, the hospital or facility shall cause a Class III legal advertisement to be published in all qualified newspapers of general circulation where the hospital or facility is geographically located and a notice shall be published on the facility’s web page within the same time frame. The first publication of the Class III legal advertisement shall occur at least three weeks prior to the date the hospital or facility intends to terminate operations. The Class III legal advertisement shall include, but is not limited to, a statement, along with the specific or proximate date, that the hospital, extended care facility operated in connection with a hospital, ambulatory health care facility, or ambulatory surgical facility freestanding or operated in connection with a hospital, intends to terminate operations, and where medical records, including, but not limited to, all imaging studies may be obtained.

(b) Upon closure, the hospital or facility shall cause a Class III legal advertisement to be published in all qualified newspapers of general circulation where the hospital or facility is geographically located informing the public where medical records, including, but not limited to, all imaging studies may be obtained. This notice shall include contact information. A notice shall also be placed on the facility web page.

(c) The hospital or facility shall respond to requests for medical records made pursuant to the publication requirements in this section within 30 days.

(d) A notification of any change in location of the patients’ medical records shall be published in a newspaper of general circulation as set forth in subsection (a) of this section. The confidentiality of the medical records shall be maintained during storage.

(e) If the facility fails to produce the requested records within 30 days, a penalty of $25 per day may be assessed by a court with jurisdiction.

(f) This section is effective retroactively to September 1, 2019, and continues in effect thereafter. The applicable penalties are only effective for requests for medical records made after the effective date of passage of this section.

§16-5B-17. Healthcare-associated infection reporting.

(a) As used in this section, the following words mean:

(1) “Centers for Disease Control and Prevention” or “CDC” means the United States Department of Health and Human Services Centers for Disease Control and Prevention;

(2) “National Healthcare Safety Network” or “NHSN” means the secure Internet-based data collection surveillance system managed by the Division of Healthcare Quality Promotion at the CDC, created by the CDC for accumulating, exchanging and integrating relevant information on infectious adverse events associated with healthcare delivery.

(3) “Hospital” means hospital as that term is defined in subsection-e, section three, article twenty-nine-b, chapter sixteen.

(4) “Healthcare-associated infection” means a localized or systemic condition that results from an adverse reaction to the presence of an infectious agent or a toxin of an infectious agent that was not present or incubating at the time of admission to a hospital.

(5) “Physician” means a person licensed to practice medicine by either the board of Medicine or the board of osteopathy.

(6) “Nurse” means a person licensed in West Virginia as a registered professional nurse in accordance with article seven, chapter thirty.

(b) The Secretary of the Department of Health and Human Resources is hereby directed to create an Infection Control Advisory Panel whose duty is to provide guidance and oversight in implementing this section. The advisory panel shall consist of the following members:

(1) Two board-certified or board-eligible physicians, affiliated with a West Virginia hospital or medical school, who are active members of the Society for Health Care Epidemiology of America and who have demonstrated an interest in infection control;

(2) One physician who maintains active privileges to practice in at least one West Virginia hospital;

(3) Three infection control practitioners, two of whom are nurses, each certified by the Certification Board of Infection Control and Epidemiology, and each working in the area of infection control. Rural and urban practice must be represented;

(4) A statistician with an advanced degree in medical statistics;

(5) A microbiologist with an advanced degree in clinical microbiology;

(6) The Director of the Division of Disease Surveillance and Disease Control in the Bureau for Public Health or a designee; and

(7) The director of the hospital program in the office of health facilities, licensure and certification in the Bureau for Public Health.

(c) The advisory panel shall:

(1) Provide guidance to hospitals in their collection of healthcare-associated infections;

(2) Provide evidence-based practices in the control and prevention of healthcare associated infections;

(3) Establish reasonable goals to reduce the number of healthcare-associated infections;

(4) Develop plans for analyzing infection-related data from hospitals;

(5) Develop healthcare-associated advisories for hospital distribution;

(6) Review and recommend to the Secretary of the Department of Health and Human Resources the manner in which the reporting is made available to the public to assure that the public understands the meaning of the report; and

(7) Other duties as identified by the Secretary of the Department of Health and Human Resources.

(d) Hospitals shall report information on healthcare-associated infections in the manner prescribed by the CDC National Healthcare Safety Network(NHSN). The reporting standard prescribed by the CDC National Healthcare Safety Network(NHSN) shall be the reporting system of the hospitals in West Virginia.

(e) Hospitals who fail to report information on healthcare associated infections in the manner and time frame required by the Secretary of the Department of Health and Human Resources shall be fined the sum of $5,000 for each such failure.

(f) The Infection Control Advisory Panel shall provide the results of the collection and analysis of all hospital data to the Secretary of the Department of Health and Human Resources for public availability and the Bureau for Public Health for consideration in their hospital oversight and epidemiology and disease surveillance responsibilities in West Virginia.

(g) Data collected and reported pursuant to this act may not be considered to establish standards of care for any purposes of civil litigation in West Virginia.

(h) The Secretary of the Department of Health and Human Resources shall require that all hospitals implement and initiate this reporting requirement.

§16-5B-18. Designation of comprehensive, primary, acute, and thrombectomy capable stroke-ready hospitals; reporting requirements; rulemaking.

(a) A hospital, as that term is defined in §16-5B-1 of this code, shall be recognized by the Office of Emergency Medical Services as a comprehensive stroke center (CSC), thrombectomy-capable stroke center (TSC), primary stroke center (PSC), or an acute stroke-ready hospital (ASRH), upon submitting verification of certification as granted by the American Heart Association, the joint commission, or other nationally recognized organization to the Office of Emergency Medical Services. A hospital shall immediately notify the Office of Emergency Medical Services of any change in its certification status.

(b) The Office of Emergency Medical Services shall gain access to, and utilize, a nationally recognized stroke database that compiles information and statistics on stroke care that align with the stroke consensus metrics developed and approved by the American Heart Association and the American Stroke Association, for the purpose of improving stroke care and access across the State of West Virginia. The Office of Emergency Medical Services shall, upon request, provide the data accessed and utilized relating to comprehensive stroke centers, thrombectomy-capable stroke centers, primary stroke centers, and acute stroke-ready hospitals to the advisory committee in §16-5B-18(d) of this code.

(c) The Office of Emergency Medical Services shall provide annually, by June 1, a list of all hospitals recognized pursuant to the provisions of §16-5B-18(a) of this code to the medical director of each licensed emergency medical services agency in this state. This list shall be maintained by the Office of Emergency Medical Services and shall be updated annually on its website.

(d) No later than July 1, 2018, the Secretary of the Department of Health and Human Resources shall establish and appoint a stroke advisory committee which shall function as an advisory body to the secretary and report no less than biannually at regularly scheduled meetings. Its functions shall include:

(1) Increasing stroke awareness;

(2) Promoting stroke prevention and health policy recommendations relating to stroke care;

(3) Advising the Office of Emergency Medical Services on the development of stroke networks;

(4) Utilizing stroke care data to provide recommendations to the Office of Emergency Medical Services to improve stroke care throughout the state;

(5) Identifying and making recommendations to overcome barriers relating to stroke care; and

(6) Review and make recommendations to the State Medical Director of the Office of Emergency Medical Services regarding prehospital care protocols including:

(A) The assessment, treatment, and transport of stroke patients by licensed emergency medical services agencies; and

(B) Plans for the triage and transport, within specified time frames of onset symptoms, of acute stroke patients to the nearest comprehensive stroke center, thrombectomy-capable stroke center, primary stroke center, or acute stroke-ready hospital.

(e) The advisory committee as set forth §16-5B-18(d) of this code shall consist of no more than 14 members. Membership of the advisory committee shall include:

(1) A representative of the Department of Health and Human Resources;

(2) A representative of an association with the primary purpose of promoting better heart health;

(3) A registered emergency medical technician;

(4) Either an administrator or physician representing a critical access hospital;

(5) Either an administrator or physician representing a teaching or academic hospital;

(6) A representative of an association with the primary purpose of representing the interests of all hospitals throughout the state; and

(7) A clinical and administrative representative of hospitals from each level of stroke center certification by a national certifying body (CSC, TSC, PSC, and ASRH).

(f) Of the members first appointed, three shall be appointed for a term of one year, three shall be appointed for a term of two years, and the remaining members shall be appointed for a term of three years. The terms of subsequent appointees shall be three years. Members may be reappointed for additional terms.

(g) Nothing in this section may permit the Office of Emergency Medical Services to conduct inspections of hospitals in relation to recognition as a stroke center as set forth in this section: Provided, That nothing in this section may preclude inspections of hospitals by the Office of Emergency Medical Services which are otherwise authorized by this code.

§16-5C-1. Purpose.

It is the policy of this state to encourage and promote the development and utilization of resources to ensure the effective and financially efficient care and treatment of persons who are convalescing or whose physical or mental condition requires them to receive a degree of nursing or related health care greater than that necessary for well individuals. Such care and treatment require a living environment for such persons which, to the extent practicable, will approximate a normal home environment. To this end, the guiding principle for administration of the laws of the state is that such persons shall be encouraged and assisted in securing necessary care and treatment in noninstitutional surroundings. In recognition that for many such persons effective care and treatment can only be secured from proprietary, voluntary and governmental nursing homes it is the policy of this state to encourage, promote and require the maintenance of nursing homes so as to ensure protection of the rights and dignity of those using the services of such facilities.

The provisions of this article are hereby declared to be remedial and shall be liberally construed to effectuate its purposes and intents.

§16-5C-2. Definitions.

As used in this article, unless a different meaning appears from the context:

"Deficiency" means a nursing home’s failure to meet the requirements specified in §16-5C-1 et seq. of this code and rules promulgated thereunder.

"Department" means the Department of Health and Human Resources.

"Director" means the director of the office of Health Facility Licensure and Certification.

"Distance learning technologies" means computer-centered technologies delivered over the internet, broadcasts, recordings, instructional videos, or videoconferencing.

"Household" means a private home or residence which is separate from or unattached to a nursing home.

"Immediate jeopardy" means a situation in which the nursing home’s noncompliance with one or more of the provisions of this article or rules promulgated thereunder has caused or is likely to cause serious harm, impairment or death to a resident.

"Nursing home" or "facility" means any institution, residence or place, or any part or unit thereof, however named, in this state which is advertised, offered, maintained or operated by the ownership or management, whether for a consideration or not, for the express or implied purpose of providing accommodations and care, for a period of more than 24 hours, for four or more persons who are ill or otherwise incapacitated and in need of extensive, ongoing nursing care due to physical or mental impairment or which provides services for the rehabilitation of persons who are convalescing from illness or incapacitation.

The care or treatment in a household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, may not be deemed to constitute a nursing home within the meaning of this article. Nothing contained in this article applies to nursing homes operated by the federal government; or extended care facilities operated in conjunction with a hospital; or institutions operated for the treatment and care of alcoholic patients; or offices of physicians; or hotels, boarding homes or other similar places that furnish to their guests only room and board; or to homes or asylums operated by fraternal orders pursuant to §35-3-1 et seq. of this code.

"Nursing care" means those procedures commonly employed in providing for the physical, emotional and rehabilitation needs of the ill or otherwise incapacitated which require technical skills and knowledge beyond that which the untrained person possesses, including, but not limited to, such procedures as: Irrigations, catheterization, special procedure contributing to rehabilitation, and administration of medication by any method which involves a level of complexity and skill in administration not possessed by the untrained person.

"Person" means an individual and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association, or political subdivision of the state.

"Resident" means an individual living in a nursing home.

"Review organization" means any committee or organization engaging in peer review or quality assurance, including, but not limited to, a medical audit committee, a health insurance review committee, a professional health service plan review committee or organization, a dental review committee, a physician’s advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, any committee or organization established or required under state or federal statutes, rules or regulations, and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of residents for the purposes of:

Evaluating and improving the quality of health care rendered; reducing morbidity or mortality; or establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.

"Secretary" means the Secretary of the Department of Health and Human Resources or his or her designee.

"Sponsor" means the person or agency legally responsible for the welfare and support of a resident.

 "Substantial compliance" means a level of compliance with the rules such that no deficiencies exist or such that identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

The secretary may define in the rules any term used herein which is not expressly defined.

§16-5C-3. Powers, duties, and rights of secretary.

In the administration of this article, the secretary shall have the following powers, duties, and rights:

(a) To enforce rules and standards promulgated hereunder for nursing homes;

(b) To exercise as sole authority all powers relating to the issuance, suspension, and revocation of licenses of nursing homes;

(c) To enforce rules promulgated hereunder governing the qualification of applicants for nursing home licenses, including, but not limited to, educational requirements, financial requirements, personal, and ethical requirements;

(d) To receive and disburse federal funds and to take whatever action not contrary to law as may be proper and necessary to comply with the requirements and conditions for the receipt of such federal funds;

(e) To receive and disburse for authorized purposes any moneys appropriated to the department by the Legislature;

(f) To receive and disburse for purposes authorized by this article any funds that may come to the department by gift, grant, donation, bequest, or devise, according to the terms thereof, as well as funds derived from the department’s operation, or otherwise;

(g) To make contracts, and to execute all instruments necessary or convenient in carrying out the secretary’s functions and duties; and all such contracts, agreements, and instruments will be executed by the secretary;

(h) To appoint officers, agents, employees, and other personnel and fix their compensation;

(i) To offer and sponsor educational and training programs for nursing homes for clinical, administrative, management, and operational personnel;

(j) To undertake survey, research and planning projects, and programs relating to administration and operation of nursing homes and to the health, care, treatment, and service in general of such homes;

(k) To assess civil penalties for violations of facility standards, in accordance with §16-5C-10 of this code;

(l) To inspect any nursing home and any records maintained therein that are necessary to determine compliance with licensure laws or Medicare or Medicaid certification, subject to the provisions of §16-5C-9 and §16-5C-10 of this code;

(m) To establish and implement procedures, including informal conferences, investigations, and hearings, subject to applicable provisions of §29A-3-1 et seq. of this code, and to enforce compliance with the provisions of this article and with rules issued hereunder;

(n) To subpoena witnesses and documents, administer oaths and affirmations, and to examine witnesses under oath for the conduct of any investigation or hearing. Upon failure of a person without lawful excuse to obey a subpoena to give testimony, and upon reasonable notice to all persons affected thereby, the secretary may apply to the circuit court of the county in which the hearing is to be held for an order compelling compliance;

(o) To make complaint or cause proceedings to be instituted against any person or persons for the violation of the provisions of this article or of rules issued hereunder. Such action may be taken by the secretary without the sanction of the prosecuting attorney of the county in which proceedings are instituted if the officer fails or refuses to discharge his or her duty. The circuit court of the county in which the conduct has occurred or, if emergency circumstances require, the Circuit Court of Kanawha County shall have jurisdiction in all civil enforcement actions brought under this article and may order equitable relief without bond. In no such case may the secretary or any person acting under the secretary’s direction be required to give security for costs;

(p) To delegate authority to the secretary’s employees and agents to perform all functions of the secretary;

(q) To make available to the Governor, the Legislature, and the public at all times online access through the Office of Health Facility Licensure and Certification website the following information. The online information will describe the licensing and investigatory activities of the department during the year. The online information will include a list of all nursing homes in the state, whether such homes are proprietary or nonproprietary; the name of the administrator or administrators; the total number of beds; the legal name of the facility; state identification number; health investigations information and reports; life safety investigations information and reports; and whether or not those nursing homes listed accept Medicare and Medicaid residents; and

(r) To establish a formal process for licensed facilities to file complaints about the inspection process or inspectors.

§16-5C-4. Administrative and inspection staff.

The secretary may, at such time or times as he or she may deem necessary, employ such administrative employees, inspectors, or other persons as may be necessary to properly carry out the provisions of this article. All employees of the department shall be members of the state civil service system and inspectors shall be trained to perform their assigned duties. Such inspectors and other employees as may be duly designated by the secretary shall act as the secretary’s representatives and, under the direction of the secretary, shall enforce the provisions of this article and all duly promulgated regulations and, in the discharge of official duties, shall have the right of entry into any place maintained as a nursing home.

§16-5C-5. Rules; minimum standards for nursing homes.

(a) All rules shall be proposed for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code. The secretary shall recommend the adoption, amendment or repeal of such rules as may be necessary or proper to carry out the purposes and intent of this article.

(b) The secretary shall recommend rules establishing minimum standards of operation of nursing homes including, but not limited to, the following:

(1) Administrative policies, including:

(A) An affirmative statement of the right of access to nursing homes by members of recognized community organizations and community legal services programs whose purposes include rendering assistance without charge to residents, consistent with the right of residents to privacy;

(B) A statement of the rights and responsibilities of residents in nursing homes which prescribe, as a minimum, such a statement of residents" rights as included in the United States Department of Health and Human Services regulations, in force on the effective date of this article, governing participation of nursing homes in the Medicare and Medicaid programs pursuant to 42 U.S.C.A. §§ 1395 et seq. and 1396 et seq.;

(C) The process to be followed by applicants seeking a license;

(D) The clinical, medical, resident, and business records to be kept by the nursing home;

(E) The procedures and inspections for the review of utilization and quality of resident care; and

(F) The procedures for informal dispute resolution, independent informal dispute resolution, and administrative due process, and when such remedies are available;

(2) Minimum numbers of administrators, medical directors, nurses, aides and other personnel according to the occupancy of the facility;

(3) Qualifications of the facility’s administrators, medical directors, nurses, aides, and other personnel;

(4) Safety requirements;

(5) Sanitation requirements;

(6) Personal services to be provided;

(7) Dietary services to be provided;

(8) Medical records;

(9) Social and recreational activities to be made available;

(10) Pharmacy services;

(11) Nursing services;

(12) Medical services;

(13) Physical facility;

(14) Resident rights;

(15) Visitation privileges that:

(A) Permit immediate access to a resident, subject to the resident’s right to deny or withdraw consent at any time, by immediate family or other relatives of the resident;

(B) Permit immediate access to a resident, subject to reasonable restrictions and the resident’s right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident; and

(C) Permit access to other specific persons or classes of persons consistent with state and federal law; and

(16) Admission, transfer and discharge rights.

(c) To ensure compliance with §29A-3-11(b)(3), the secretary shall amend his or her legislative rule to exempt federally certified Medicare and Medicaid nursing facilities from provisions addressed in the federal regulations.

(d) The director shall permit the nonclinical instruction portions of a nurse aide training program approved by the Office of Health Facility Licensure and Certification to be provided through distance learning technologies.

§16-5C-5a.

Repealed.

Acts, 1993 Reg. Sess., Ch. 62.

§16-5C-6. License required; application; fees; duration; renewal.

No person may establish, operate, maintain, offer, or advertise a nursing home within this state unless and until he or she obtains a valid license therefor as hereinafter provided, which license remains unsuspended, unrevoked, and unexpired.  No public official or employee may place any person in, or recommend that any person be placed in, or directly or indirectly cause any person to be placed in, any nursing home, as defined in §16-5C-2 of this code, which is being operated without a valid license from the secretary. The procedure for obtaining a license is as follows:

(a)  The applicant shall submit an application to the director on a form to be prescribed by the secretary, containing such information as may be necessary to show that the applicant is in compliance with the standards for nursing homes, as established by this article and the rules lawfully promulgated hereunder. The application and any exhibits thereto shall provide the following information:

(1)  The name and address of the applicant;

(2)  The name, address, and principal occupation:

(A)  Of each person who, as a stockholder or otherwise, has a proprietary interest of 10 percent or more in the applicant;

(B)  Of each officer and director of a corporate applicant;

(C)  Of each trustee and beneficiary of an applicant which is a trust; and

(D)  Where a corporation has a proprietary interest of 25 percent or more in an applicant, the name, address, and principal occupation of each officer and director of the corporation;

(3)  The name and address of the owner of the premises of the nursing home or proposed nursing home, if he or she is a different person from the applicant, and in such case, the name and address:

(A)  Of each person who, as a stockholder or otherwise, has a proprietary interest 10 percent or more in the owner;

(B)  Of each officer and director of a corporate applicant; and

(C)  Of each trustee and applicant, the name, address, and principal occupation of each officer and director of the corporation;

(4)  Where the applicant is the lessee or the assignee of the nursing home or the premises of the proposed nursing home, a signed copy of the lease and any assignment thereof;

(5)  The name and address of the nursing home or the premises of the proposed nursing home;

(6)  A description of the nursing home to be operated;

(7)  The bed quota of the nursing home;

(8) An organizational plan for the nursing home indicating the number of persons employed or to be employed and the positions and duties of all employees;

(9) The name and address of the individual who is to serve as administrator;

(10) Such evidence of compliance with applicable laws and rules governing zoning, buildings, safety, fire prevention, and sanitation as the secretary may require;

(11) A listing of other states in which the applicant owns, operates, or manages a nursing home or long-term care facility;

(12) Such additional information as the secretary may require; and

(13) Assurances that the nursing home is in compliance with the provisions of §16-20-1 et seq. of this code.

(b)  Upon receipt and review of an application for license made pursuant to §16-5C-6(a) of this code, and inspection of the applicant nursing home pursuant to §16-5C-9 and §16-5C-10 of this code, the secretary shall issue a license if he or she finds:

(1)  That an individual applicant, and every partner, trustee, officer, director, and controlling person of an applicant which is not an individual, is a person responsible and suitable to operate or to direct or participate in the operation of a nursing home by virtue of financial capacity, appropriate business or professional experience, a record of compliance with lawful orders of the department, if any, and lack of revocation of a license during the previous five years or consistent poor performance in other states;

(2)  That the facility is under the supervision of an administrator who is licensed pursuant to the provisions of §30-25-1 et seq. of this code; and

(3)  That the facility is in substantial compliance with standards established pursuant to §16-5C-5 of this code, and such other requirements for a license as may be established by rule under this article.

Any license issued by the secretary shall state the maximum bed capacity for which it is issued, the date the license was issued, and the expiration date. Such licenses shall be issued for a period not to exceed 15 months for nursing homes:  Provided, That any license in effect for which timely application for renewal, together with payment of the proper fee has been made to the secretary in conformance with the provisions of this article and the rules issued thereunder, and prior to the expiration date of the license, shall continue in effect until:

(A)  Six months following the expiration date of the license; or

(B)  The date of the revocation or suspension of the license pursuant to the provisions of this article; or

(C)  The date of issuance of a new license, whichever date first occurs.  

Each license shall be issued only for the premises and persons named in the application and is not transferable or assignable:  Provided, That in the case of the transfer of ownership of a facility with an unexpired license, the application by the proposed new owner shall be filed with the secretary no later than 30 days before the proposed date of transfer.  Upon receipt of proof of the transfer of ownership, the application shall have the effect of a license for three months. The secretary shall issue or deny a license within three months of the receipt of the proof of the transfer of ownership. Every license shall be posted in a conspicuous place in the nursing home for which it is issued so as to be accessible to and in plain view of all residents of and visitors to the nursing home.

(c)  A license is renewable, conditioned upon the licensee filing timely application for the extension of the term of the license accompanied by the fee, and contingent upon evidence of compliance with the provisions of this article and rules promulgated hereunder. Any application for renewal of a license shall include a report by the licensee in such form and containing such information as shall be prescribed by the secretary, including a statement of any changes in the name, address, management, or ownership information on file with the secretary. All holders of facility licenses as of the effective date of this article shall include, in the first application for renewal filed thereafter, such information as is required for initial applicants under the provisions of §16-5C-6(a) of this code.

(d)  In the case of an application for a renewal license, if all requirements of §16-5C-5 of this code are not met, the secretary may at his or her discretion issue a provisional license, provided that care given in the nursing home is adequate for resident needs and the nursing home has demonstrated improvement and evidences potential for substantial compliance within the term of the license: Provided, That a provisional license may not be issued for a period greater than six months, may not be renewed, and may not be issued to any nursing home that is a poor performer.

(e)  A nonrefundable application fee in the amount of $200 for an original nursing home license shall be paid at the time application is made for the license. Direct costs of initial licensure inspections or inspections for changes in licensed bed capacity shall be borne by the applicant and shall be received by the secretary prior to the issuance of an initial or amended license. The license fee for renewal of a license shall be at the rate of $15 per bed per year for nursing homes, except the annual rate per bed may be assessed for licenses issued for less than 15 months. Annually, the secretary may adjust the licensure fees for inflation based upon the increase in the consumer price index during the last 12 months. All such license fees shall be due and payable to the secretary, annually, and in the manner set forth in the rules promulgated hereunder. The fee and application shall be submitted to the secretary who shall retain both the application and fee pending final action on the application. All fees received by the secretary under the provisions of this article shall be deposited in accordance with §16-1-13 of this code.

§16-5C-7. Cost disclosure; surety for resident funds.

(a)  Each nursing home shall disclose in writing to all residents at the time of admission a complete and accurate list of all costs which may be incurred by them; and shall notify the residents 30 days in advance of changes in costs. The nursing home shall make available copies of the list in the nursing home’s business office for inspection. Residents may not be liable for any cost not so disclosed.

(b)  If the nursing home handles any money for residents within the facility, the licensee or his or her authorized representative shall either: (1) Give a bond; or (2) obtain and maintain commercial insurance with a company licensed in this state in an amount consistent with this subsection and with the surety as the secretary shall approve. The bond or insurance shall be upon condition that the licensee shall hold separately and in trust all residents" funds deposited with the licensee; shall administer the funds on behalf of the resident in the manner directed by the depositor; shall render a true and complete account to the depositor and the secretary when requested, and at least quarterly to the resident; and upon termination of the deposit, shall account for all funds received, expended, and held on hand. The licensee shall file a bond or obtain insurance in a sum at least 1.25 times the average amount of funds deposited with the nursing home during the nursing home’s previous fiscal year.

This insurance policy shall specifically designate the resident as the beneficiary or payee reimbursement of lost funds. Regardless of the type of coverage established by the facility, the facility shall reimburse, within 30 days, the resident for any losses directly and seek reimbursement through the bond or insurance itself. Whenever the secretary determines that the amount of any bond or insurance required pursuant to this subsection is insufficient to adequately protect the money of residents which is being handled, or whenever the amount of any such bond or insurance is impaired by any recovery against the bond or insurance, the secretary may require the licensee to file an additional bond or insurance in such amount as necessary to adequately protect the money of residents being handled.

The provisions of this subsection do not apply if the licensee handles less than $35 per resident per month in the aggregate. Nursing homes certified to accept payment by Medicare and Medicaid must meet the requirements for surety bonds as listed in the applicable federal regulations.

§16-5C-8. Investigation of complaints.

(a)  The secretary shall establish rules for prompt investigation of all complaints of alleged violations by nursing homes of applicable requirements of state law or rules, except for such complaints that the secretary determines are willfully intended to harass a licensee or are without any reasonable basis. Such procedures shall include provisions for ensuring the confidentiality of the complainant and for promptly informing the complaint and the nursing home involved of the results of the investigation.

(b)  If, after its investigation, the secretary determines that the complaint has merit, the secretary shall take appropriate disciplinary action and shall advise any injured party of the possibility of a civil remedy.

(1)  A nursing home or licensee adversely affected by an order or citation of a deficient practice issued pursuant to this section may request the independent informal dispute resolution process contained in §16-5C-12a of this code.

(2)  No later than 20 working days following the last day of a complaint investigation, the secretary shall transmit to the nursing home a statement of deficiencies committed by the facility. Notification of the availability of the independent informal dispute resolution process and an explanation of the independent informal dispute resolution process shall be included in the transmittal.

(c)  No nursing home may discharge or in any manner discriminate against any resident, legal representative, or employee for the reason that the resident, legal representative, or employee has filed a complaint or participated in any proceeding specified in this article. Violation of this prohibition by any nursing home constitutes ground for the suspension or revocation of the license of the nursing home as provided in §16-5C-11 and §16-5C-12 of this code. Any type of discriminatory treatment of a resident, legal representative, or employee by whom, or upon whose behalf, a complaint has been submitted to the secretary, or any proceeding instituted under this article, within 120 days of the filing of the complaint or the institution of such action, shall raise a rebuttable presumption that such action was taken by the nursing home in retaliation for such complaint or action.

§16-5C-9. Inspections.

  The secretary and any duly designated employee or agent shall have the right to enter upon and into the premises of any nursing home at any time for which a license has been issued, for which an application for license has been filed with the secretary, or which the secretary has reason to believe is being operated or maintained as a nursing home without a license. If entry is refused by the owner or person in charge of the nursing home, the secretary may apply to the circuit court of the county in which the nursing home is located or the Circuit Court of Kanawha County for a warrant authorizing inspection to conduct the following inspections:

(1)  An initial inspection prior to the issuance of a license pursuant to §16-5C-6 of this code;

(2)  A license inspection for a nursing home, which shall be conducted at least once every 15 months, if the nursing home has not applied for and received an exemption from the requirement as provided for in this section;

(3)  The secretary, by the secretary’s authorized employees or agents, shall conduct at least one inspection prior to issuance of a license pursuant to §16-5C-6 of this code, and shall conduct periodic unannounced inspections thereafter, to determine compliance by the nursing home with applicable rules promulgated thereunder.  All facilities shall comply with regulations of the State Fire Commission. The State Fire Marshal, by his or her employees or authorized agents, shall make all fire, safety, and like inspections. The secretary may provide for such other inspections as the secretary may deem necessary to carry out the intent and purpose of this article. Any nursing home aggrieved by a determination or assessment made pursuant to this section, shall have the right to an administrative appeal as set forth in §16-5C-12 of this code;

(4)  A complaint inspection based on a complaint received by the secretary. If, after investigation of a complaint, the secretary determines that the complaint is substantiated, the secretary may invoke any applicable remedies available pursuant to §16-5C-11 of this code.

§16-5C-9a. Exemptions.

(a)  The secretary may grant an exemption from a license inspection if a nursing home was found to be in substantial compliance with the provisions of this chapter at its most recent inspection and there have been no substantiated complaints thereafter. The secretary may not grant more than one exemption in any two-year period.

(b)  The secretary may grant an exemption to the extent allowable by federal law from a standard survey, only if the nursing home was found to be in substantial compliance with certification participation requirements at its previous standard inspection and there have been no substantiated complaints thereafter.

(c)  The secretary may grant an exemption from periodic license inspections if a nursing home receives accreditation by an accrediting body approved by the secretary and submits a complete copy of the accreditation report. The accrediting body shall identify quality of care measures that assure continued quality care of residents. The secretary may not grant more than one exemption in any two-year period.

(d)  If a complaint is substantiated, the secretary has the authority to immediately remove the exemption.

§16-5C-10. Reports of inspections; plans of correction; assessment of penalties and use of funds derived therefrom; hearings.

(a)  Reports of all inspections made pursuant to §16-5C-8 and §16-5C-9 of this code shall be in writing and filed with the secretary and shall list all deficiencies in the nursing home’s compliance with the provisions of this article and the rules adopted hereunder.

(1)  No later than 10 working days following the last day of the inspection, the director shall transmit to the nursing home a copy of such report and shall specify a time within which the nursing home shall submit a plan for correction of such deficiencies.

(2)  Additionally, notification of the availability of the independent informal dispute resolution process and an explanation of the independent informal dispute resolution process shall be included in the transmittal.

(3)  A nursing home adversely affected by an order or citation of a deficient practice issued pursuant to this section may request the independent informal dispute resolution process contained in §16-5C-12a of this code.

(4)  The plan submitted by the nursing home shall be approved, rejected, or modified by the director.

(5)  The inspectors or the nursing home shall allow audio taping of the exit conference with the expense to be paid by the requesting party.

(b)  With regard to a nursing home with deficiencies and upon its failure to submit a plan of correction which is approved by the director, or to correct any deficiency within the time specified in an approved plan of correction, the secretary may assess civil penalties as hereinafter provided or may initiate any other legal or disciplinary action as provided by this article: Provided, That any action by the secretary shall be stayed until federal proceedings arising from the same deficiencies are concluded.

(c)  Nothing in this section may be construed to prohibit the secretary from enforcing a rule, administratively or in court, without first affording formal opportunity to make correction under this section, where, in the opinion of the secretary, the violation of the rule jeopardizes the health or safety of residents, or where the violation of the rule is the second or subsequent such violation occurring during a period of 12 full months.

(d)  Civil penalties assessed against nursing home shall not be less than $50 nor more than $8,000: Provided, That the secretary may not assess a penalty under state licensure for the same deficiency or violation cited under federal law and may not assess a penalty against a nursing home if the nursing home corrects the deficiency within 20 days of receipt of written notice of the deficiency unless it is a repeat deficiency or the nursing home is a poor performer.

(e)  In determining whether to assess a penalty, and the amount of penalty to be assessed, the secretary shall consider:

(1)  How serious the noncompliance is in relation to direct resident care and safety;

(2)  The number of residents the noncompliance is likely to affect;

(3)  Whether the noncompliance was noncompliance during a previous inspection;

(4)  The opportunity the nursing home has had to correct the noncompliance; and

(5)  Any additional factors that may be relevant.

(f)  The range of civil penalties shall be as follows:

(1)  For a deficiency which presents immediate jeopardy to the health, safety, or welfare of one or more residents, the secretary may impose a civil penalty of not less than $3,000 nor more than $8,000;

(2)  For a deficiency which actually harms one or more residents, the secretary may impose a civil penalty of not less than $1,000 nor more than $3,000;

(3)  For a deficiency which has the potential to harm one or more residents, the secretary may impose a civil penalty of not less than $50 nor more than $1,000;

(4)  For a repeated deficiency, the secretary may impose a civil penalty of up to 150 percent of the penalties provided in §16-5C-10(f)(1) through §16-5C-10(f)(3) of this code; and

(5)  If no plan of correction is submitted as established in this rule, a penalty may be assessed in the amount of $100 a day unless a reasonable explanation has been provided and accepted by the secretary.

(g)  The secretary shall assess a civil penalty of not more than $1,000 against an individual who willfully and knowingly certifies a material and false statement in a resident assessment. Such penalty shall be imposed with respect to each such resident assessment. The secretary shall impose a civil penalty of not more than $5,000 against an individual who willfully and knowingly causes another individual to certify a material and false statement in a resident assessment. Such penalty shall be imposed with respect to each such resident assessment.

(h)  The secretary shall assess a civil penalty of not more than $2,000 against any individual who notifies, or causes to be notified, a nursing home of the time or date on which an inspection is scheduled to be conducted under this article or under 42 U.S.C.A. §§ 1395 et seq. and 1396 et seq.

(i)  If the secretary assesses a penalty under this section, the secretary shall cause delivery of notice of such penalty by personal service or by certified mail. Said notice shall state the amount of the penalty, the action or circumstance for which the penalty is assessed, the requirement that the action or circumstance violates, and the basis upon which the secretary assessed the penalty and selected the amount of the penalty.

(j)  The secretary shall, in a civil judicial proceeding, recover any unpaid assessment which has not been contested under §16-5C-12 of this code within 30 days of receipt of notice of such assessment, or which has been affirmed under the provisions of that section and not appealed within 30 days of receipt of the  Board of Review’s final order, or which has been affirmed on judicial review, as provided in §16-5C-13 of this code. All money collected by assessments of civil penalties or interest shall be paid into a special resident benefit account and shall be applied by the secretary for:

(1)  The protection of the health or property of facility residents;

(2)  Long-term care educational activities;

(3)  The costs arising from the relocation of residents to other nursing homes when no other funds are available; and

(4)  In an emergency situation in which there are no other funds available, the operation of a facility pending correction of deficiencies or closure.

(k)  The opportunity for a hearing on an action taken under this section shall be as provided in §16-5C-12 of this code.

§16-5C-11. Ban on admissions; closure; transfer of residents; appointment of temporary management; assessment of interest; collection of assessments; promulgation of rules to conform with federal requirements.

(a)  The secretary may reduce the bed quota of the nursing home or impose a ban on new admissions, where he or she finds upon inspection of the nursing home that the licensee is not providing adequate care under the nursing home’s existing bed quota, and that reduction in quota or ban on new admissions, or both, would place the licensee in a position to render adequate care. A reduction in bed quota or a ban on new admissions, or both, may remain in effect until the nursing home is determined by the secretary to be in substantial compliance with the rules. In addition, the secretary shall determine that the facility has the management capability to ensure continued substantial compliance with all applicable requirements. The secretary shall evaluate the continuation of the admissions ban or reduction in bed quota on a continuing basis, and may make a partial lifting of the admissions ban or reduction in bed quota consistent with the purposes of this section. If the residents of the facility are in immediate jeopardy of their health, safety, welfare, or rights, the secretary may seek an order to transfer residents out of the nursing home as provided for in §16-5C-11(d) of this code. Any notice to a licensee of reduction in bed quota or a ban on new admissions shall include the terms of such order, the reasons therefor, and a date set for compliance.

(b)  The secretary may deny, limit, suspend, or revoke a license issued under this article or take other action as set forth in this section, if he or she finds upon inspection that there has been a substantial failure to comply with the provisions of this article or the standards or rules promulgated pursuant hereto.

(c)  The suspension, expiration, forfeiture, or cancellation by operation of law or order of the secretary of a license issued by the director, or the withdrawal of an application for a license after it has been filed with the secretary, may not deprive the secretary of the  secretary’s authority to institute or continue a disciplinary proceeding, or a proceeding for the denial of a license application, against the licensee or applicant upon any ground provided by law or to enter an order denying the license application, suspending, or revoking the license, or otherwise taking disciplinary action on any such ground.

(d)  In addition to other remedies provided in this article, upon petition from the secretary, a circuit court in the county in which a facility is located, or in Kanawha County if emergency circumstances occur, may determine that a nursing home’s deficiencies under this article, or under 42 U.S.C.A. §§ 1395 et seq. and 1396 et seq., if applicable, constitute an emergency immediately jeopardizing the health, safety, welfare, or rights of its residents, and issue an order to:

(1)  Close the nursing home;

(2)  Transfer residents in the nursing home to other nursing homes; or

(3)  Appoint temporary management to oversee the operation of the facility and to assure the health, safety, welfare, and rights of the nursing home’s residents, where there is a need for temporary management while:

(A)  There is an orderly closure of the facility; or

(B)  Improvements are made in order to bring the nursing home into compliance with all the applicable requirements of this article and, if applicable, 42 U.S.C.A. §§ 1395 et seq. and 1396 et seq.

If the secretary petitions a circuit court for the closure of a nursing home, the transfer of residents, or the appointment of temporary management, the circuit court shall hold a hearing no later than seven days thereafter, at which time the secretary and the licensee or operator of the nursing home may participate and present evidence. The burden of proof is on the secretary.

A circuit court may divest the licensee or operator of possession and control of a nursing home in favor of temporary management. The temporary management shall be responsible to the court and shall have such powers and duties as the court may grant to direct all acts necessary or appropriate to conserve the property and promote the health, safety, welfare, and rights of the residents of the nursing home, including, but not limited to, the replacement of management and staff, the hiring of consultants, the making of any necessary expenditures to close the nursing home, or to repair or improve the nursing home so as to return it to compliance with applicable requirements, and the power to receive, conserve, and expend funds, including Medicare, Medicaid, and other payments on behalf of the licensee or operator of the nursing home. Priority shall be given to expenditures for current direct resident care or the transfer of residents.  Expenditures other than normal operating expenses totaling more than $20,000 shall be approved by the circuit court.

The person charged with temporary management shall be an officer of the court, is not liable for conditions at the nursing home which existed or originated prior to his or her appointment, and is not personally liable, except for his or her own gross negligence and intentional acts which result in injuries to persons or damage to property at the nursing home during his or her temporary management. All compensation and per diem costs of the temporary manager shall be paid by the nursing home. The costs for the temporary manager for any 30-day period may not exceed the 75th percentile of the allowable administrator’s salary as reported on the most recent cost report for the nursing home’s peer group as determined by the secretary. The temporary manager shall bill the nursing home for compensation and per diem costs. Within 15 days of receipt of the bill, the nursing home shall pay the bill or contest the costs for which it was billed to the court. Such costs shall be recoverable through recoupment from future reimbursement from the state Medicaid agency in the same fashion as a benefits overpayment.

The temporary management shall promptly employ at least one person who is licensed as a nursing home administrator in West Virginia.

A temporary management established for the purpose of making improvements in order to bring a nursing home into compliance with applicable requirements may not be terminated until the court has determined that the nursing home has the management capability to ensure continued compliance with all applicable requirements, except if the court has not made such determination within six months of the establishment of the temporary management, the temporary management terminates by operation of law at that time, and the nursing home shall be closed. After the termination of the temporary management, the person who was responsible for the temporary management shall make an accounting to the court, and after deducting from receipts the costs of the temporary management, expenditures, civil penalties, and interest no longer subject to appeal, in that order, any excess shall be paid to the licensee or operator of the nursing home.

(e) The assessments for penalties and for costs of actions taken under this article shall have interest assessed at five percent per annum beginning 30 days after receipt of notice of such assessment or 30 days after receipt of the Board of Review’s final order following a hearing, whichever is later. All such assessments against a nursing home that are unpaid shall be added to the nursing home’s licensure fee and may be filed as a lien against the property of the licensee or operator of the nursing home. Funds received from such assessments shall be deposited as funds received in §16-5C-10 of this code.

(f) The opportunity for a hearing on an action by the secretary taken under this section shall be as provided in §16-5C-12 of this code.

§16-5C-12. License denial, limitation, suspension, or revocation.

(a)  The secretary shall deny, limit, suspend, or revoke a license issued if the provisions of this article or if the rules promulgated pursuant to this article are violated. The secretary may revoke a nursing home’s license and prohibit all physicians and licensed disciplines associated with that nursing home from practicing at the nursing home location based upon an annual, periodic, complaint, verification, or other inspection and evaluation.

(b)  Before any such license is denied, limited, suspended, or revoked, however, written notice shall be given to the licensee, stating the grounds for such denial, limitation, suspension, or revocation.

(c)  An applicant or licensee has 10 working days after receipt of the order denying, limiting, suspending, or revoking a license to request a formal hearing contesting the denial, limitation, suspension, or revocation of a license under this article. If a formal hearing is requested, the applicant or licensee and the secretary shall proceed in accordance with the provisions of §29A-5-1 et seq. of this code.

(d)  If a license is denied or revoked as herein provided, a new application for license shall be considered by the secretary if, when, and after the conditions upon which the denial or revocation was based have been corrected and evidence of this fact has been furnished. A new license shall then be granted after proper inspection, if applicable, has been made and all provisions of this article and rules promulgated pursuant to this article have been satisfied.

(e) If the license of a nursing home is denied, limited, suspended, or revoked, the administrator or owner or lessor of the nursing home property shall cease to operate the facility as a nursing home as of the effective date of the denial, limitation, suspension, or revocation. The owner or lessor of the nursing home property is responsible for removing all signs and symbols identifying the premises as a nursing home within 30 days. Any administrative appeal of such denial, limitation, suspension, or revocation shall not stay the denial, limitation, suspension, or revocation.

(f) Upon the effective date of the denial, limitation, suspension, or revocation, the administrator of the nursing home shall advise the secretary and the Board of Pharmacy of the disposition of all medications located on the premises. The disposition is subject to the supervision and approval of the secretary. Medications that are purchased or held by a nursing home that is not licensed may be deemed adulterated.

(g) The period of suspension for the license of a nursing home shall be prescribed by the secretary but may not exceed one year.

§16-5C-12a. Independent informal dispute resolution.

(a)  A facility or licensee adversely affected by an order or citation of a deficient practice issued pursuant to this article or by a citation issued for a deficient practice pursuant to federal law may request the independent informal dispute resolution process. A facility may contest a cited deficiency as contrary to law or unwarranted by the facts or both.

(b) The secretary shall contract with up to three independent review organizations to conduct an independent informal dispute resolution process for facilities. The independent review organization shall be accredited by the Utilization Review Accreditation Commission.

(c) The independent informal dispute resolution process is not a formal evidentiary proceeding and utilizing the independent informal dispute resolution process does not waive the facility’s right to a formal hearing.

(d)  The independent informal dispute resolution process consists of the following:

(1)  No later than 10 working days following the last day of the survey or inspection, or no later than 20 working days following the last day of a complaint investigation, the secretary shall transmit to the facility a statement of deficiencies committed by the facility. Notification of the availability of the independent informal dispute resolution process and an explanation of the independent informal dispute resolution process shall be included in the transmittal;

(2)  When the facility returns its plan to correct the cited deficiencies to the secretary, the facility may request in writing the independent informal dispute resolution process to refute the cited deficiencies;

(3)  Within five working days of receipt of the written request for the independent informal dispute resolution process made by a facility, the secretary shall refer the request to an independent review organization from the list of certified independent review organizations approved by the state. The secretary shall vary the selection of the independent review organization on a rotating basis. The secretary shall acknowledge in writing to the facility that the request for independent review has been received and forwarded to an independent review organization for review. The notice shall include the name and address of the independent review organization.

(4)  Within 10 working days of receipt of the written request for the independent informal dispute resolution process made by a facility, the independent review organization shall hold an independent informal dispute resolution conference unless additional time is requested by the facility. Before the independent informal dispute resolution conference, the facility may submit additional information.

(5) The facility may not be accompanied by counsel during the independent informal dispute resolution conference. The manner in which the independent informal dispute resolution conference is held is at the discretion of the facility, but is limited to:

(A)  A desk review of written information submitted by the facility;

(B)  A telephonic conference; or

(C)  A face-to-face conference held at the facility or a mutually agreed upon location.

(6)  If the independent review organization determines the need for additional information, clarification, or discussion after conclusion of the independent informal dispute resolution conference, the director and the facility shall present the requested information.

(7)  Within 10 calendar days of the independent informal dispute resolution conference, the independent review organization shall provide and make a determination, based upon the facts and findings presented, and shall transmit a written decision containing the rationale for its determination to the facility and the director.

(8) If the secretary disagrees with the determination, the secretary may reject the determination made by the independent review organization and shall issue an order setting forth the rationale for the reversal of the independent review organization’s decision to the facility within 10 calendar days of receiving the independent review organization’s determination.

(9)  If the secretary accepts the determination, the secretary shall issue an order affirming the independent review organization’s determination within 10 calendar days of receiving the independent review organization’s determination.

(10) If the independent review organization determines that the original statement of deficiencies should be changed as a result of the independent informal dispute resolution process and the secretary accepts the determination, the secretary shall transmit a revised statement of deficiencies to the facility within 10 calendar days of the independent review organization’s determination.

(11)  Within 10 calendar days of receipt of the secretary’s order and the revised statement of deficiencies, the facility shall submit a revised plan to correct any remaining deficiencies to the secretary.

(e)  A facility has 10 calendar days after receipt of the secretary’s order to request a formal hearing for any deficient practice cited under this article. If the facility requests a formal hearing, the secretary and the facility shall proceed in accordance with the provisions of §29A-5-1 et seq. of this code.

(f)  Under the following circumstances, the facility is responsible for certain costs of the independent informal dispute resolution review, which shall be remitted to the secretary within 60 days of the informal hearing order:

(1)  If the facility requests a face-to-face conference, the facility shall pay any costs incurred by the independent review organization that exceed the cost of a telephonic conference, regardless of which part ultimately prevails.

(2)  If the independent review organization’s decision supports the originally written contested deficiency or adverse action taken by the director, the facility shall reimburse the secretary for the cost charged by the independent review organization. If the independent review organization’s decision supports some of the originally written contested deficiencies, but not all of them, the facility shall reimburse the secretary for the cost charged by the independent review organization on a pro rata basis.

§16-5C-13. Judicial Review.

(a)  Any applicant or licensee who is dissatisfied with the decision of the formal hearing as a result of the hearing provided for in §16-5C-12 of this code may, within 30 days after receiving notice of the decision, petition the Circuit Court of Kanawha County, in term or in vacation, for judicial review of the decision.

(b)  The court may affirm, modify, or reverse the decision of the Board of Review and either the applicant, licensee, or secretary may appeal from the court’s decision to the Supreme Court of Appeals.

(c) The judgment of the circuit court shall be final unless reversed, vacated, or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of §29A-6-1 et seq. of this code.

§16-5C-14. Legal counsel and services of the department.

(a)  Legal counsel and services for the department in all administrative hearings may be provided by the Attorney General or a staff attorney and all proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General, or his or her assistants, or an attorney employed by the department in proceedings in any circuit court, by the prosecuting attorney of the county as well, all without additional compensation.

(b)  The Governor may appoint counsel for the department, who shall perform such legal services in representing the interests of residents in nursing homes in matters under the jurisdiction of the secretary as the Governor shall direct. It shall be the duty of such counsel to appear for the residents in all cases where they are not represented by counsel. The compensation of such counsel shall be fixed by the Governor.

§16-5C-15. Unlawful acts; penalties; injunctions; private right of action.

(a) Whoever establishes, maintains, or is engaged in establishing or maintaining a nursing home without a license granted under §16-5C-6, or who prevents, interferes with or impedes in any way the lawful enforcement of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished for the first offense by a fine of not more than $100, or by confinement in jail for a period of not more than 90 days, or by both fine and confinement, at the discretion of the court. For each subsequent offense, the fine may be increased to not more than $250, with confinement in jail for a period of not more than 90 days, or by both fine and confinement, at the discretion of the court. Each day of a continuing violation after conviction is considered a separate offense.

(b) The secretary may in his or her discretion bring an action to enforce compliance with this article or any rule or order hereunder whenever it appears to the secretary that any person has engaged in, or is engaging in, an act or practice in violation of this article or any rule or order hereunder, or whenever it appears to the secretary that any person has aided, abetted or caused, or is aiding, abetting or causing, such an act or practice. Upon application by the secretary, the circuit court of the county in which the conduct has occurred or is occurring, or if emergency circumstances occur the circuit court of Kanawha County, has jurisdiction to grant without bond a permanent or temporary injunction, decree or restraining order.

Whenever the secretary has refused to grant or renew a license, or has revoked a license required by law to operate or conduct a nursing home, or has ordered a person to refrain from conduct violating the rules of the secretary, and the person has appealed the action of the secretary, the court may, during pendency of the appeal, issue a restraining order or injunction upon proof that the operation of the nursing home or its failure to comply with the order of the secretary adversely affects the well being or safety of the residents of the nursing home. Should a person who is refused a license or the renewal of a license to operate or conduct a nursing home or whose license to operate is revoked or who has been ordered to refrain from conduct or activity which violates the rules of the secretary fails to appeal or should the appeal be decided favorably to the secretary, then the court shall issue a permanent injunction upon proof that the person is operating or conducting a nursing home without a license as required by law, or has continued to violate the rules of the secretary.

(c) Any nursing home that deprives a resident of any right or benefit created or established for the well-being of this resident by the terms of any contract, by any state statute or rule, or by any applicable federal statute or regulation, shall be liable to the resident for injuries suffered as a result of such deprivation. Upon a finding that a resident has been deprived of such a right or benefit, and that the resident has been injured as a result of such deprivation, and unless there is a finding that the nursing home exercised all care reasonably necessary to prevent and limit the deprivation and injury to the resident, compensatory damages shall be assessed in an amount sufficient to compensate the resident for such injury. In addition, where the deprivation of the right or benefit is found to have been willful or in reckless disregard of the lawful rights of the resident, punitive damages may be assessed. A resident may also maintain an action pursuant to this section for any other type of relief, including injunctive and declaratory relief, permitted by law. Exhaustion of any available administrative remedies is not required prior to commencement of suit under this subsection.

(d)  The amount of damages recovered by a resident, in an action brought pursuant to this section, is exempt for purposes of determining initial or continuing eligibility for medical assistance under §9-4-1 et seq. of this code, and may neither be taken into consideration, nor required to be applied toward the payment or part payment of the cost of medical care or services available under that article.

(e)  Any waiver by a resident or his or her legal representative of the right to commence an action under this section, whether oral or in writing, is void as contrary to public policy.

(f)  The penalties and remedies provided in this section are cumulative and are in addition to all other penalties and remedies provided by law.

(g)  Nothing in this section or any other section of the code shall limit the protections afforded nursing homes or their health care providers under §55-7b-1 et seq. of this code. Nursing homes and their health care providers shall be treated in the same manner as any other health care facility or health care provider under §55-7b-1 et seq. of this code. The terms "health care facility" and "health care provider" as used in this subsection shall have the same meaning as set forth in §55-7b-2(f) and (g) of this code.

(h)    The proper construction of this section and the limitations and provisions of §55-7b-1 et seq. of this code shall be determined by principles of statutory construction.

§16-5C-16

Repealed

Acts, 2019 Reg. Sess., Ch. 216.

§16-5C-17

Repealed

Acts, 2019 Reg. Sess., Ch. 216.

§16-5C-18. Separate accounts for residents" personal funds; consent for use; records; penalties.

(a)  Each nursing home subject to the provisions of this article shall hold in a separate account and in trust each resident’s personal funds deposited with the nursing home.

(b)  No person may use or cause to be used for any purpose the personal funds of any resident admitted to any such nursing home unless consent for the use thereof has been obtained from the resident or from a committee or guardian or relative.

(c)  Each nursing home shall maintain a true and complete record of all receipts for any disbursements from the personal funds account of each resident in the nursing home, including the purpose and payee of each disbursement, and shall render a true account of such record to the resident or his or her representative upon demand and upon termination of the resident’s stay in the nursing home.

(d)  Any person or corporation who violates any subsection of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or imprisoned in jail not more than one year, or both fined and imprisoned.

(e)  Reports provided to review organizations are confidential unless inaccessibility of information interferes with the secretary’s ability to perform his or her oversight function as mandated by federal regulations and this section.

(f)  Notwithstanding §16-5C-18(b) of this code or any other provision of this code, upon the death of a resident, any funds remaining in his or her personal account shall be made payable to the person or probate jurisdiction administering the estate of said resident: Provided, That if after 30 days there has been no qualification over the decedent resident’s estate, those funds are presumed abandoned and are reportable to the State Treasurer pursuant to the West Virginia Uniform Unclaimed Property Act, §36-8-1 et seq. of this code.

§16-5C-19. Federal law; legislative rules.

Notwithstanding any provision in this code to the contrary, the department shall promulgate legislative rules, in compliance with the provisions of article three, chapter twenty-nine-a of this code, pertaining to nursing homes, when those rules are required for compliance with federal law or regulations. The rules may be filed as emergency rules.

§16-5C-20. Hospice palliative care required to be offered.

(a)  When the health status of a nursing home facility resident declines to the state of terminal illness or when the resident receives a physician’s order for "comfort measures only",  the facility shall notify the resident with information about the option of receiving hospice palliative care. If a nursing home resident is incapacitated, the facility shall also notify any person who has been given the authority of guardian, a medical power of attorney, or health care surrogate over the resident, information stating that the resident has the option of receiving hospice palliative care.

(b)  The facility shall document that it has notified the resident, and any person who has been given a medical power of attorney or health care surrogate over the resident, information about the option of hospice palliative care and maintain the documentation so that the secretary may inspect the documentation, to verify the facility has complied with this section.

§16-5C-21. Employment restrictions.

All personnel of a nursing home by virtue of ownership, employment, engagement, or agreement with a provider or contractor shall be subject to the provisions of the West Virginia Clearance for Access: Registry and Employment Screening Act, §16-49-1 et seq. of this code and the rules promulgated pursuant thereto.

§16-5C-22. Jury trial waiver to be a separate document.

(a)  Every written agreement containing a waiver of a right to a trial by jury that is entered into between a nursing home and a person for the nursing care of a resident, must have as a separate and stand alone document any waiver of a right to a trial by jury.

(b)  Nothing in this section may be construed to require a court of competent jurisdiction to determine that the entire agreement or any portion thereof is enforceable, unenforceable, conscionable, or unconscionable.

§16-5D-1. Purpose.

(a) It is the policy of this state to encourage and promote the development and utilization of resources to ensure the effective care and treatment of persons who are dependent upon the services of others by reason of physical or mental impairment who may require limited and intermittent nursing care, including those individuals who qualify for and are receiving services coordinated by a licensed hospice. Such care and treatment requires a living environment for such persons which, to the extent practicable, will approximate a normal home environment. To this end, the guiding principle for administration of the laws of the state is that such persons shall be encouraged and assisted in securing necessary care and treatment in noninstitutional surroundings.

(b) In recognition that for many such persons effective care and treatment can only be secured from proprietary, voluntary and governmental assisted living residences, it is the policy of this state to encourage, promote and require the maintenance of assisted living residences so as to ensure protection of the rights and dignity of those using the services of assisted living residences.

(c) The provisions of this article are hereby declared to be remedial and shall be liberally construed to effectuate its purposes and intents.

§16-5D-2. Definitions.

(a) As used in this article, unless a different meaning appears from the context:

(1) “Assisted living residence” means any living facility, residence, or place of accommodation, however named, available for four or more residents, in this state which is advertised, offered, maintained, or operated by the ownership or management, whether for a consideration or not, for the express or implied purpose of having personal assistance or supervision, or both, provided to any residents therein who are dependent upon the services of others by reason of physical or mental impairment and who may also require nursing care at a level that is not greater than limited and intermittent nursing care: Provided, That the care or treatment in a household, whether for compensation or not, of any person related by blood or marriage, within the degree of consanguinity of second cousin to the head of the household, or his or her spouse, may not be deemed to constitute an assisted living residence within the meaning of this article. Nothing contained in this article applies to hospitals, as defined under §16-5B-1 of this code; or state institutions, as defined under §25-1-3 or §27-1-6 of this code; or residential care homes operated by the federal government or the state; or institutions operated for the treatment and care of alcoholic patients; or offices of physicians; or hotels, boarding homes, or other similar places that furnish to their guests only room and board; or to homes or asylums operated by fraternal orders pursuant to §35-3-1 et seq. of this code;

(2) “Deficiency” means a statement of the rule and the fact that compliance has not been established and the reasons therefor;

(3) “Department” means the state Department of Health and Human Resources;

(4) “Director” means the Director of the Office of Health Facility Licensure and Certification within the Office of the Inspector General.

(5) “Division” means the Office of Health Facility Licensure and Certification within the Office of the Inspector General of the state Department of Health and Human Resources;

(6) “Limited and intermittent nursing care” means direct hands-on nursing care of an individual who needs no more than two hours of nursing care per day for a period of time no longer than 90 consecutive days per episode: Provided, That such time limitations shall not apply to an individual who, after having established a residence in an assisted living residence, subsequently qualifies for and receives services coordinated by a licensed hospice and such time limitations shall not apply to home health services provided by a Medicare-certified home health agency. Limited and intermittent nursing care may only be provided by or under the supervision of a registered professional nurse and in accordance with rules proposed by the secretary for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code;

(7) “Nursing care” means those procedures commonly employed in providing for the physical, emotional, and rehabilitational needs of the ill or otherwise incapacitated which require technical skills and knowledge beyond that which the untrained person possesses, including, but not limited to, such procedures as: Irrigations, catheterization, special procedures contributing to rehabilitation, and administration of medication by any method which involves a level of complexity and skill in administration not possessed by the untrained person;

(8) “Person” means an individual and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association, or political subdivision of the state;

(9) “Personal assistance” means personal services, including, but not limited to, the following: Help in walking, bathing, dressing, feeding, or getting in or out of bed, or supervision required because of the age or mental impairment of the resident;

(10) “Resident” means an individual living in an assisted living residence for the purpose of receiving personal assistance or limited and intermittent nursing services;

(11) “Secretary” means the secretary of the state Department of Health and Human Resources or his or her designee; and

(12) “Substantial compliance” means a level of compliance with the rules such that identified deficiencies pose no greater risk to resident health or safety than the potential for causing minimal harm.

(b) The secretary may define in rules any term used herein which is not expressly defined.

§16-5D-3. Powers, duties, and rights of secretary.

In the administration of this article, the secretary has the following powers, duties, and rights:

(a) To enforce rules and standards for assisted living residences which are adopted, promulgated, amended, or modified by the secretary;

(b) To exercise as sole authority all powers relating to the issuance, suspension, and revocation of licenses of assisted living residences;

(c) To enforce rules adopted, promulgated, amended, or modified by the secretary governing the qualification of applicants for assisted living residences, including, but not limited to, educational requirements, financial requirements, personal, and ethical requirements;

(d) To receive and disburse federal funds and to take whatever action not contrary to law as may be proper and necessary to comply with the requirements and conditions for the receipt of federal funds;

(e) To receive and disburse for authorized purposes any moneys appropriated for the division by the Legislature;

(f) To receive and disburse for purposes authorized by this article, any funds that may come to the division by gift, grant, donation, bequest, or devise, according to the terms thereof, as well as funds derived from the division’s operation or otherwise;

(g) To make contracts and to execute all instruments necessary or convenient in carrying out the secretary’s functions and duties; and all such contracts, agreements, and instruments will be executed by the secretary;

(h) To appoint officers, agents, employees, and other personnel and fix their compensation;

(i) To offer and sponsor educational and training programs for assisted living residences’ administrative, management, and operational personnel;

(j) To undertake survey, research and planning projects, and programs relating to administration and operation of assisted living residences and to the health, care, treatment, and service in general of residents of assisted living residences;

(k) To assess civil penalties for violations of assisted living residence standards in accordance with §16-5D-10 of this code;

(l) To inspect any assisted living residence and any records maintained therein subject to the provisions of §16-5D-9 and §16-5D-10 of this code;

(m) To establish and implement procedures, including informal conferences, investigations and hearings, subject to applicable provisions of §29A-3-1 et seq. of this code, and to enforce compliance with the provisions of this article and with rules issued hereunder by the secretary;

(n) To subpoena witnesses and documents, administer oaths and affirmations, and to examine witnesses under oath for the conduct of any investigation or hearing. Upon failure of a person without lawful excuse to obey a subpoena to give testimony, and upon reasonable notice to all persons affected thereby, the secretary may apply to the circuit court of the county in which the hearing is to be held or to the Circuit Court of Kanawha County for an order compelling compliance;

(o) To make complaint or cause proceedings to be instituted against any person for the violation of the provisions of this article or of rules issued hereunder by the secretary. Such action may be taken by the secretary without the sanction of the prosecuting attorney of the county in which proceedings are instituted if the prosecuting attorney fails or refuses to discharge his or her duty. The Circuit Court of Kanawha County or the circuit court of the county in which the conduct has occurred shall have jurisdiction in all civil enforcement actions brought under this article and may order equitable relief without bond. In no such case may the secretary or any person acting under the secretary’s direction be required to give security for costs;

(p) To delegate authority to the secretary’s employees and agents to perform all functions of the secretary except the making of final decisions in adjudications; and

(q) To make available to the Governor, the Legislature and the public at all times online access through the Office of Health Facility Licensure and Certification website the following information. The online information will describe the assisted living residence licensing and investigatory activities of the division. The online information will include a list of all assisted living residences in the state and such of the following information as the secretary determines to apply: Whether the assisted living residences are proprietary or nonproprietary; the classification of each assisted living residence; the name of the administrator or administrators; the total number of beds; license type; license number; license expiration date; health investigations information and reports; life safety investigations information and reports; and whether or not those assisted living residences listed accept Medicare and Medicaid residents.

§16-5D-4. Administrative and inspection staff.

The secretary may, as he or she determines necessary, employ administrative employees, inspectors, or other persons as may be necessary to properly carry out the provisions of this article. All employees of the division will be members of the state civil service system. Inspectors and other employees as may be duly designated by the secretary will act as the secretary’s representatives and, under the direction of the secretary, will enforce the provisions of this article and all duly promulgated rules of the secretary and, in the discharge of official duties, will have the right of entry into any place maintained as an assisted living residence at any time.

§16-5D-5. Rules; minimum standards for assisted living residences.

(a) The secretary will propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to carry out the purposes and intent of this article and to enable the secretary to exercise the powers and perform the duties conferred upon the secretary by this article.

(b) The secretary will propose rules establishing minimum standards of operation of assisted living residences, including, but not limited to, the following:

(1) Administrative policies, including:

(A) An affirmative statement of the right of access to assisted living residences by members of recognized community organizations and community legal services programs whose purposes include rendering assistance without charge to residents, consistent with the right of residents to privacy;

(B) A statement of the rights and responsibilities of residents;

(C) The process to be followed by applicants seeking a license;

(D) The clinical, medical, resident, and business records to be kept by the assisted living residence;

(E) The procedures for inspections and for the review of utilization and quality of resident care; and

(F) The procedures for informal dispute resolution and administrative due process and when such remedies are available.

(2) Minimum numbers and qualifications of personnel, including management, medical and nursing, aides, orderlies, and support personnel, according to the size and classification of the assisted living residence;

(3) Safety requirements;

(4) Sanitation requirements;

(5) Protective and personal services to be provided;

(6) Dietary services to be provided;

(7) Maintenance of health records;

(8) Social and recreational activities to be made available;

(9) Physical facilities;

(10) Requirements related to provision of limited and intermittent nursing;

(11) Visitation privileges governing access to a resident by immediate family or other relatives of the resident and by other persons who are visiting with the consent of the resident; and

(12) Such other categories as the secretary determines to be appropriate to ensure resident’s health, safety, and welfare.

(c) The secretary will include in rules detailed standards for each of the categories of standards established pursuant to §16-5D-5(b) and §16-5D-5(d) of this code and will classify such standards as follows:

(1) Class I standards are standards the violation of which, as the secretary determines, would present either an imminent danger to the health, safety, or welfare of any resident or a substantial probability that death or serious physical harm would result;

(2) Class II standards are standards which the secretary determines have a direct or immediate relationship to the health, safety, or welfare of any resident, but which do not create imminent danger;

(3) Class III standards are standards which the secretary determines have an indirect or a potential impact on the health, safety, or welfare of any resident.

(d) An assisted living residence shall attain substantial compliance with standards established pursuant to this section and such other requirements for a license as may be established by rule under this article.

§16-5D-6. License required; application; fees; duration; renewal.

(a) There shall be one assisted living residence license for each assisted living residence. No person may establish, operate, maintain, offer, or advertise an assisted living residence within this state unless and until he or she obtains a valid license therefor as provided in this article, which license remains unsuspended, unrevoked, and unexpired. No public official or employee may place any person in, or recommend that any person be placed in, or directly or indirectly cause any person to be placed in any assisted living residence, as defined in §16-5D-2 of this code, which is being operated without a valid license from the secretary. The licensee shall be responsible for, and shall have complete control of, the operation and premises of the assisted living residence and the personal assistance and supervision provided to the residents: Provided, That the secretary may review any leases or any contracts, subcontracts, agreements, or arrangements for the provision of on-site services to the residents of an assisted living residence to ensure the proper care, safety, and welfare of current or potential residents. Nothing in this article shall be construed to prevent or prohibit the ability of a resident of an assisted living residence to contract or arrange for, and to receive, privately paid nursing care or personal assistance in addition to those services provided by the licensee, subject to the consent and cooperation of the licensee and consistent with the duties and responsibilities imposed by this section.

(b) Nothing in this article shall be construed to require the licensing of landlords or property owners who are not involved in the provision of supervision, personal assistance, limited and intermittent nursing care, or other on-site professional services for the residents of an assisted living residence or in the advertising, recruitment of residents, transportation of residents, or other substantial and ongoing services for the operation or maintenance of the assisted living residence.

(c) The procedure for obtaining a license shall be as follows:

The applicant shall submit an application to the secretary on a form to be prescribed by the secretary, containing such information as may be necessary to show that the applicant is in compliance with the standards for assisted living residences as established by this article and the rules lawfully promulgated by the secretary hereunder. The application and any exhibits thereto shall provide the following information:

(A) The name and address of the applicant;

(B) The name, address, and principal occupation:

(i) Of each person who, as a stockholder or otherwise, has a proprietary interest of 10 percent or more in the applicant;

(ii) Of each officer and director of a corporate applicant;

(iii) Of each trustee and beneficiary of an applicant which is a trust; and

(iv) Where a corporation has a proprietary interest of 25 percent or more in an applicant, the name, address, and principal occupation of each officer and director of the corporation;

(C) The name and address of the owner of the premises of the assisted living residence or proposed assisted living residence, if he or she is a different person from the applicant, and in such case, the name and address:

(i) Of each person who, as a stockholder or otherwise, has a proprietary interest of 10 percent or more in the owner;

(ii) Of each officer and director of a corporate applicant;

(iii) Of each trustee and beneficiary of the owner if it is a trust; and

(iv) Where a corporation has a proprietary interest of 25 percent or more in the owner, the name and address of each officer and director of the corporation;

(D) Where the applicant is the lessee or the assignee of the assisted living residence or the premises of the proposed assisted living residence, a signed copy of the lease and any assignment thereof;

(E) The name and address of the assisted living residence or the premises of the proposed assisted living residence;

(F) The proposed bed quota of the assisted living residence and the proposed bed quota of each unit thereof;

(G) An organizational plan for the assisted living residence indicating the number of persons employed or to be employed, the positions and duties of all employees;

(H) The name and address of the individual who is to serve as administrator;

(I) Such evidence of compliance with applicable laws and rules governing zoning, buildings, safety, fire prevention, and sanitation as the secretary may require; and

(J) Such additional information as the secretary may require.

(d) Upon receipt and review of an application for license made pursuant to §16-5D-6(a) of this code and inspection of the applicant assisted living residence pursuant to §16-5D-9 and §16-5D-10 of this code, the secretary will issue a license if he or she finds:

(1) That an individual applicant, and every partner, trustee, officer, secretary, and controlling person of an applicant which is not an individual, is a person responsible and suitable to operate or to direct or participate in the operation of an assisted living residence by virtue of financial capacity, appropriate business or professional experience, a record of compliance with lawful orders of the department, if any, and lack of revocation of a license during the previous five years;

(2) That the assisted living residence is under the supervision of an administrator who is qualified by training and experience; or

(3) That the assisted living residence is in substantial compliance with standards established pursuant to §16-5D-5 of this code and such other requirements for a license as the secretary may establish by rule under this article.

(e) The secretary may deny an initial or renewal license if the information provided in an application or report is known by the applicant to be false or the applicant fails to report required information or for any other reason permitted by law or rules promulgated pursuant to this article.

(f) Any license granted by the secretary will state the maximum bed capacity for which it is granted, the date the license was issued, and the expiration date. Licenses will be issued for a period not to exceed one year for assisted living residences: Provided, That any such license in effect for which timely application for renewal, together with payment of the proper fee has been made to the department in conformance with the provisions of this article and the rules issued thereunder and prior to the expiration date of the license, shall continue in effect until: (1) One year following the expiration date of the license; or (2) the date of the revocation or suspension of the license pursuant to the provisions of this article; or (3) the date of issuance of a new license, whichever date first occurs. Each license will be issued only for the premises and persons named in the application and is not transferable or assignable: Provided, however, That in the case of the transfer of ownership of an assisted living residence with an unexpired license, the application of the new owner for a license shall have the effect of a license for a period of three months when filed with the secretary. Every license shall be posted in a conspicuous place in the assisted living residence for which it is issued so as to be accessible to and in plain view of all residents and visitors of the assisted living residence.

(g) An original license shall be renewable, conditioned upon the licensee filing timely application for the extension of the term of the license accompanied by the fee and contingent upon evidence of compliance with the provisions of this article and rules promulgated by the secretary hereunder; the application shall be accompanied by:

(1) The information required in §16-5D-6(c)(A) through §16-5D-6(c)(C) of this code.

(2) A balance sheet of the assisted living residence as of the end of its fiscal year, setting forth assets and liabilities at such date, including all capital, surplus, reserve, depreciation, and similar accounts;

(3) A statement of operations of the assisted living residence as of the end of its fiscal year, setting forth all revenues, expenses, taxes, extraordinary items, and other credits or charges; and

(4) A statement of any changes in the name, address, management, or ownership information on file with the secretary.

(h) In the case of an application for a renewal license, if all requirements of §16-5D-5 and §16-5D-6 of this code are not met, the secretary may in his or her discretion issue a provisional license, provided that care given in the assisted living residence is adequate for resident needs and the assisted living residence has demonstrated improvement and evidences potential for substantial compliance within the term of the license: Provided, That a provisional renewal may not be issued for a period greater than one year, may not be renewed, and may not be issued to any assisted living residence with uncorrected violations of any Class I standard, as defined in §16-5D-5(c) of this code.

(i) A nonrefundable application fee in the amount of $65 for an original assisted living residence license shall be paid at the time application is made for the license. An average cost of all direct costs for the initial licensure for the preceding 10 facilities based on the size of the facility’s licensed bed capacity shall be borne by the applicant and shall be received by the secretary prior to the issuance of an initial or amended license. The license fee for renewal of a license shall be at the rate of $6 per bed per year for assisted living residences except the annual rate per bed may be assessed for licenses issued for less than one year. The secretary may annually adjust the licensure fees for inflation based upon the consumer price index. The bed capacity for the holder of each license will be determined by the secretary. All license fees shall be due and payable to the secretary annually, and in the manner set forth in the rules promulgated by the secretary. The fee and application shall be submitted to the secretary who will retain both the application and fee pending final action on the application. All fees received by the secretary under the provisions of this article will be deposited in accordance with §16-1-13 of this code.

§16-5D-7. Cost disclosure; surety for residents’ funds.

(a) Each assisted living residence shall disclose in writing to all prospective residents a complete and accurate list of all costs which may be incurred by them. Residents are not liable for any cost not so disclosed.

(b) If the assisted living residence handles any money for residents within the assisted living residence, the licensee or his or her authorized representative shall give a bond in an amount consistent with this subsection and with such surety as the secretary will approve. The bond shall be upon condition that the licensee shall hold separately and in trust all residents’ funds deposited with the licensee, shall administer the funds on behalf of the resident in the manner directed by the depositor, shall render a true and complete account to the depositor and the secretary when requested, and at least quarterly to the resident, and upon termination of the deposit, shall account for all funds received, expended, and held on hand. The licensee shall file a bond in a sum to be fixed by the secretary based upon the magnitude of the operations of the applicant, but which sum may not be less than $2,500.

(c) Every person injured as a result of any improper or unlawful handling of the money of a resident of an assisted living residence may bring an action in a proper court on the bond required to be posted by the licensee pursuant to this subsection for the amount of damage suffered as a result thereof to the extent covered by the bond. Whenever the secretary determines that the amount of any bond which is filed pursuant to this subsection is insufficient to adequately protect the money of residents which is being handled, or whenever the amount of any bond is impaired by any recovery against the bond, the secretary may require the licensee to file an additional bond in such amount as necessary to adequately protect the money of residents being handled.

(d) The provisions of §16-5D-7(b) of this code do not apply if the licensee handles less than $25 per resident and less than $500 for all residents in any month.

§16-5D-8. Investigation of complaints.

(a) The secretary will establish, by rule, procedures for prompt investigation of all complaints of alleged violations by assisted living residences of applicable requirements of state law or rules, except for such complaints that the secretary determines are willfully intended to harass a licensee or are without any reasonable basis. Such procedures will include provisions for ensuring the confidentiality of the complainant and of any other person so named in the complaint and for promptly informing the complainant and the assisted living residence involved of the results of the investigation.

(b) If, after its investigation, the secretary determines that the complaint has merit, the secretary will take appropriate disciplinary action and will advise any injured party of the possibility of a civil remedy under this article.

(c) No assisted living residence may discharge or in any manner discriminate against any resident or employee for the reason that the resident or employee has filed a complaint or participated in any proceeding specified in this article. Violation of this prohibition by any assisted living residence constitutes grounds for the suspension or revocation of the license of the assisted living residence as provided in §16-5D-11 and §16-5D-12 of this code. Any type of discriminatory treatment of a resident or employee by whom, or upon whose behalf, a complaint has been submitted to the secretary, or any proceeding instituted under this article, within 120 days of the filing of the complaint or the institution of the action, shall raise a rebuttable presumption that the action was taken by the assisted living residence in retaliation for the complaint or action.

§16-5D-9. Inspections.

(a) The secretary and any duly designated employee or agent thereof will have the right to enter upon and into the premises of any assisted living residence at any time for which a license has been issued, for which an application for license has been filed with the secretary, or which the secretary has reason to believe is being operated or maintained as an assisted living residence without a license. If entry is refused by the owner or person in charge of the assisted living residence, the secretary will apply to the circuit court of the county in which the assisted living residence is located or the Circuit Court of Kanawha County for an administrative inspection warrant.

(b) The secretary, by the secretary’s authorized employees or agents, will conduct at least one inspection prior to issuance of a license pursuant to §16-5D-6 of this code and will conduct periodic unannounced inspections thereafter to determine compliance by the assisted living residence with applicable statutes and rules promulgated thereunder. All assisted living residences shall comply with rules of the State Fire Commission. The State Fire Marshal, by his or her employees or authorized agents, shall make all fire, safety, and like inspections. The secretary may provide for such other inspections as the secretary may deem necessary to carry out the intent and purpose of this article. If after investigating a complaint the secretary determines that the complaint is substantiated and that an immediate and serious threat to a resident’s health or safety exists, the secretary may invoke any remedies available pursuant to §16-5D-11 and §16-5D-12 of this code. Any assisted living residence aggrieved by a determination or assessment made pursuant to this section shall have the right to an administrative appeal as set forth in §16-5D-12 of this code.

§16-5D-10. Reports of inspections; plans of correction; assessment of penalties and use of funds derived therefrom; hearings.

(a) Reports of all inspections made pursuant to §16-5D-9 of this code will be in writing and will list all deficiencies in the assisted living residence’s compliance with the provisions of this article and the rules adopted by the secretary hereunder. The director will send a copy of the report to the assisted living residence by physical or electronic method with verifiable delivery, and will specify a time within which the assisted living residence shall submit a plan for correction of deficiencies, which plan will be approved, rejected, or modified by the secretary. The inspectors will allow audio taping of the exit conference for licensure inspections with all costs directly associated with the taping to be paid by the assisted living residence, provided that an original tape is provided to inspectors at the end of taping.

(b) Upon an assisted living residence’s failure to submit a plan of correction which is approved by the secretary, or to correct any deficiency within the time specified in an approved plan of correction, the secretary may assess civil penalties as hereinafter provided or may initiate any other legal or disciplinary action as provided by this article.

(c) Nothing in this section may be construed to prohibit the secretary from enforcing a rule, administratively or in court, without first affording formal opportunity to make correction under this section, where, in the opinion of the secretary, the violation of the rule jeopardizes the health or safety of residents or where the violation of the rule is the second or subsequent violation occurring during a period of 12 full months.

(d) Civil penalties assessed against assisted living residences will be classified according to the nature of the violation as defined in §16-5D-5(c) of this code and rules promulgated thereunder by the secretary, as follows: For each violation of a Class I standard, a civil penalty of not less than $50 nor more than $500 will be imposed; for each violation of a Class II standard, a civil penalty of not less than $25 nor more than $50 will be imposed; for each violation of a Class III standard, a civil penalty of not less than $10 nor more than $25 will be imposed. Each day a violation continues, after the date of citation, shall constitute a separate violation. The date of citation is the date the facility receives the written statement of deficiencies.

(e) The secretary will assess a civil penalty not to exceed $2,000 against any individual who notifies, or causes to be notified, an assisted living residence of the time or date on which an inspection is scheduled to be conducted under this article.

(f) If the secretary assesses a penalty under this section, the secretary will cause delivery of notice of the penalty by personal service or by certified mail. The notice will state the amount of the penalty, the action or circumstance for which the penalty is assessed, the requirement that the action or circumstance violates, and the basis upon which the secretary assessed the penalty and selected the amount of the penalty.

(g) The secretary will, in a civil judicial proceeding, recover any unpaid assessment which has not been contested under §16-5D-12 of this code within 30 days of receipt of notice of the assessment or which has been affirmed under the provisions of that section and not appealed within 30 days of receipt of the Board of Review’s final order or which has been affirmed on judicial review, as provided in §16-5D-13 of this code. All money collected by assessments of civil penalties or interest will be paid into a special resident benefit account and will be applied by the secretary only for the protection of the health or property of residents of assisted living residences operated within the state that the secretary finds to be deficient, including payment for the costs of relocation of residents to other facilities, operation of an assisted living residence pending correction of deficiencies, or closure and reimbursement of residents for personal funds lost.

(h) The opportunity for a hearing on an action taken under this section shall be as provided in §16-5D-12 of this code. In addition to any other rights of appeal conferred upon an assisted living residence pursuant to this section, an assisted living residence shall have the right to request a hearing and seek judicial review pursuant to §16-5D-12 and §16-5D-13 of this code to contest the citing by the secretary of a deficiency on an inspection report, irrespective of whether the deficiency results in the imposition of a civil penalty.

§16-5D-11. Enforcement actions; assessment of interest; collection of assessments; hearings.

(a) The secretary will, by order, impose a ban on the admission of residents or reduce the bed quota of the assisted living residence, or any combination thereof, where he or she finds upon inspection of the assisted living residence that the licensee is not providing adequate care under the assisted living residence’s existing bed quota and that reduction in quota or imposition of a ban on admissions, or any combination thereof, would place the licensee in a position to render adequate care. Any notice to a licensee of reduction in quota or ban on new admissions will include the terms of the order, the reasons therefor, and the date set for compliance.

(b) The secretary may suspend or revoke a license issued under this article or take other action as set forth in this section if he or she finds upon inspection that there has been a substantial failure to comply with the provisions of this article or the standards or rules promulgated pursuant hereto.

(c) The suspension, expiration, forfeiture, or cancellation by operation of law or order of the secretary of a license issued by the secretary or the withdrawal of an application for a license after it has been filed with the secretary, may not deprive the secretary of the secretary’s authority to institute or continue an enforcement action or a proceeding for the denial of a license application against the licensee or applicant upon any ground provided by law or to deny the license application or suspend or revoke the license or otherwise take enforcement action on any such ground.

(d) In addition to other remedies provided in this article, upon petition from the secretary, the circuit court of the county in which the conduct has occurred or is occurring or the Circuit Court of Kanawha County may determine that an assisted living residence’s deficiencies under this article constitute an emergency immediately jeopardizing the health, safety, welfare, or rights of its residents and issue an order to:

(1) Close the assisted living residence;

(2) Transfer residents in the assisted living residence to other facilities; or

(3) Appoint temporary management to oversee the operation of the assisted living residence and to assure the health, safety, welfare, and rights of the assisted living residence’s residents where there is a need for temporary management while:

(A) There is an orderly closure of the assisted living residence; or

(B) Improvements are made to bring the assisted living residence into compliance with all the applicable requirements of this article.

(e) If the secretary petitions a circuit court for the closure of an assisted living residence, the transfer of residents, or the appointment of a temporary management, the circuit court shall hold a hearing no later than seven days thereafter, at which time the secretary and the licensee or operator of the assisted living residence may participate and present evidence.

(f) A circuit court may divest the licensee or operator of possession and control of an assisted living residence in favor of temporary management. The temporary management shall be responsible to the court and shall have such powers and duties as the court may grant to direct all acts necessary or appropriate to conserve the property and promote the health, safety, welfare, and rights of the residents of the assisted living residence, including, but not limited to, the replacement of management and staff, the hiring of consultants, the making of any necessary expenditures to close the assisted living residence, or to repair or improve the assisted living residence so as to return it to compliance with applicable requirements and the power to receive, conserve, and expend funds, including payments on behalf of the licensee or operator of the assisted living residence. Priority shall be given to expenditures for current direct resident care or the transfer of residents.

(g)The person charged with temporary management:

(1) Shall be an officer of the court;

(2) Shall be paid by the licensee;

(3) Is not liable for conditions at the assisted living residence which existed or originated prior to his or her appointment; and

(4) Is not personally liable, except for his or her own gross negligence and intentional acts which result in injuries to persons or damage to property at the assisted living residence during his or her temporary management.

(h) No person may impede the operation of temporary management. There shall be an automatic stay for a 90-day period subsequent to the establishment of temporary management of any action that would interfere with the functioning of the assisted living residence, including, but not limited to, cancellation of insurance policies, termination of utility services, attachments to working capital accounts, foreclosures, evictions, and repossessions of equipment used in the assisted living residence.

(i) A temporary management established for the purpose of making improvements to bring the assisted living residence into compliance with applicable requirements may not be terminated until the court has determined that the assisted living residence has the management capability to ensure continued compliance with all applicable requirements; except if the court has not made such determination within six months of the establishment of the temporary management, the temporary management terminates by operation of law at that time, and the assisted living residence shall be closed. After the termination of the temporary management, the person who was responsible for the temporary management shall make an accounting to the court and after deducting from receipts the costs of the temporary management, expenditures, and civil penalties and interest no longer subject to appeal, in that order, any excess shall be paid to the licensee or operator of the assisted living residence.

(j) The assessments for penalties and for costs of actions taken under this article shall have interest assessed at five percent per year beginning 30 days after receipt of notice of the assessment or 30 days after receipt of the Board of Review’s final order following a hearing, whichever is later. All assessments against an assisted living residence that are unpaid shall be added to the assisted living residence’s licensure fee and may be filed as a lien against the property of the licensee or operator of the assisted living residence. Funds received from assessments shall be deposited as funds received as provided in §16-5D-10 of this code.

(k) The opportunity for a hearing on an action by the secretary taken under this section shall be as provided in §16-5D-12 of this code.

§16-5D-12. License denial; limitation, suspension, or revocation.

(a) The secretary shall issue an order denying, limiting, suspending, or revoking a license issued pursuant to this article if the provisions of this article or of the rules promulgated pursuant to this article are violated. The secretary may issue an order revoking a program’s license and prohibit all licensed disciplines associated with the assisted living residence from practicing at the assisted living residence based upon an annual, periodic, complaint, verification, or other inspection and evaluation.

(b) Before any order is issued by the secretary denying, limiting, suspending, or revoking a license, written notice will be given to the licensee, stating the grounds for such denial, limitation, suspension, or revocation.

(c) An applicant or licensee has 10 working days after receipt of the secretary’s order denying, limiting, suspending, or revoking a license to request a formal hearing contesting the denial, limitation, suspension, or revocation under this article. If a formal hearing is requested, the applicant or licensee and the secretary shall proceed in accordance with the provisions of §29A-5-1 et seq. of this code.

(d) If a license is denied or revoked as herein provided, a new application for license will be considered by the secretary if, when, and after the conditions upon which the denial was based have been corrected and evidence of this fact has been furnished. A new license will then be granted after proper inspection, if applicable, has been made and all provisions of this article and rules promulgated pursuant to this article have been satisfied.

(e) Any applicant or licensee who is dissatisfied with the decision as a result of the formal hearing provided in this section may, within 30 days after receiving notice of the decision, petition the Circuit Court of Kanawha County, in term or in vacation, for judicial review of the decision.

(f) If the license of an assisted living residence is denied, limited, suspended, or revoked, the administrator, any owner of the assisted living residence, or owner or lessor of the assisted living residence property shall cease to operate the facility as an assisted living residence as of the effective date of the denial, limitation, suspension, or revocation. The owner or lessor of the assisted living residence property is responsible for removing all signs and symbols identifying the premises as an assisted living residence within 30 days. Any administrative appeal of such denial, limitation, suspension, or revocation shall not stay the denial, limitation, suspension, or revocation.

(g) Upon the effective date of the denial, limitation, suspension, or revocation, the administrator of the assisted living residence shall advise the secretary and the Board of Pharmacy of the disposition of all medications located on the premises. The disposition is subject to the supervision and approval of the secretary. Medications that are purchased or held by an assisted living residence that is not licensed may be deemed adulterated.

(h) If the license of an assisted living residence is suspended or revoked, any person named in the licensing documents of the assisted living residence, including persons owning or operating the assisted living residence, may not, as an individual or as part of a group, apply to operate another assisted living residence for up to five years after the date of suspension or revocation.

(i) The period of suspension for the license of an assisted living residence will be prescribed by the secretary, but may not exceed one year.

§16-5D-13. Judicial review.

(a) Any applicant or licensee or the secretary who is adversely affected by the decision as a result of the formal hearing provided for in §16-5D-12 of this code may, within 30 days after receiving notice of the decision, petition the Circuit Court of Kanawha County, in term or in vacation, for judicial review of the decision.

(b) The court may affirm, modify, or reverse the decision of the Board of Review and either the applicant, licensee, or the secretary may appeal from the court’s decision to the Supreme Court of Appeals.

(c) The judgment of the circuit court shall be final unless reversed, vacated, or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of §29A-6-1 et seq. of this code.

§16-5D-14. Legal counsel and services for the secretary.

(a) Legal counsel and services for the secretary in all administrative hearings and all proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General, his or her assistants or an attorney employed by the secretary in proceedings in any circuit court by the prosecuting attorney of the county as well, all without additional compensation.

(b) The Governor may appoint counsel for the secretary who shall perform such legal services in representing the interests of residents in assisted living residences in matters under the jurisdiction of the secretary as the Governor shall direct. It shall be the duty of such counsel to appear for the residents in all cases where they are not represented by counsel. The compensation of such counsel shall be fixed by the Governor.

§16-5D-15. Unlawful acts; penalties; injunctions; private right of action.

(a) Whoever advertises, announces, establishes or maintains or is engaged in establishing or maintaining an assisted living residence without a license granted under §16-5D-6 of this code, or who prevents, interferes with or impedes in any way the lawful enforcement of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished for the first offense by a fine of not more than $100 or by imprisonment in jail for a period of not more than 90 days, or by both such fine and imprisonment, at the discretion of the court. For each subsequent offense, the fine may be increased to not more than $250, with imprisonment in jail for a period of not more than 90 days, or both such fine and imprisonment at the discretion of the court. Each day of a continuing violation after conviction shall be considered a separate offense.

(b) The secretary may in his or her discretion bring an action to enforce compliance with this article or any rule, or order hereunder, whenever it appears to the secretary that any person has engaged in, or is engaging in, an act or practice in violation of this article or any rule or order hereunder, or whenever it appears to the secretary that any person has aided, abetted, or caused or is aiding, abetting, or causing such an act or practice. Upon application by the secretary, the circuit court of the county in which the conduct has occurred or is occurring, or the Circuit Court of Kanawha County shall have jurisdiction to grant without bond a permanent or temporary injunction, decree, or restraining order.

(c) Whenever the secretary refuses to grant or renew a license or revokes a license required by law to operate or conduct an assisted living residence or orders a person to refrain from conduct violating the rules of the secretary, and the person deeming himself or herself aggrieved by the refusal, revocation, or order appeals the action of the secretary, the court may, during pendency of the appeal, issue a restraining order or injunction upon proof that the operation of the assisted living residence or its failure to comply with the order of the secretary adversely affects the well-being or safety of the residents of the assisted living residence. Should a person who is refused a license or the renewal of a license to operate or conduct an assisted living residence or whose license to operate is revoked or who has been ordered to refrain from conduct or activity which violates the rules of the secretary, fails to appeal or should such appeal be decided favorably to the secretary, then the court shall issue a permanent injunction upon proof that the person is operating or conducting an assisted living residence without a license as required by law or has continued to violate the rules of the secretary.

(d) Any assisted living residence that deprives a resident of any right or benefit created or established for the well-being of the resident by the terms of any contract, by any state statute or rule, or by any applicable federal statute or regulation shall be liable to the resident for injuries suffered as a result of the deprivation. Upon a finding that a resident has been deprived of such a right or benefit and that the resident has been injured as a result of the deprivation and unless there is a finding that the assisted living residence exercised all care reasonably necessary to prevent and limit the deprivation and injury to the resident, compensatory damages shall be assessed in an amount sufficient to compensate the resident for the injury. In addition, where the deprivation of any right or benefit is found to have been willful or in reckless disregard of the lawful rights of the resident, punitive damages may be assessed. A resident may also maintain an action pursuant to this section for any other type of relief, including injunctive and declaratory relief, permitted by law. Exhaustion of any available administrative remedies may not be required prior to commencement of suit hereunder.

(e) The amount of damages recovered by a resident, in an action brought pursuant to this section, are exempt for purposes of determining initial or continuing eligibility for medical assistance pursuant to §9-5-1 et seq. of this code and may neither be taken into consideration nor required to be applied toward the payment or part payment of the cost of medical care or services available pursuant to §9-5-1 et seq. of this code.

(f) Any waiver by a resident or his or her legal representative of the right to commence an action under this section, whether oral or in writing, shall be null and void as contrary to public policy.

(g) The penalties and remedies provided in this section are cumulative and shall be in addition to all other penalties and remedies provided by law.

§16-5D-16

Repealed

Acts, 2018 Reg. Sess., Ch. 196.

§16-5D-17

Repealed

Acts, 2018 Reg. Sess., Ch. 196.

§16-5D-18. Separate accounts for residents' personal funds; consent for use; records; penalties.

(a) Each assisted living residence subject to the provisions of this article shall hold in a separate account and in trust each resident's personal funds deposited with the assisted living residence.

(b) No person may use or cause to be used for any purpose the personal funds of any resident admitted to any assisted living residence unless consent for the use thereof has been obtained from the resident or from a committee or guardian or relative.

(c) Each assisted living residence shall maintain a true and complete record of all receipts for any disbursements from the personal funds account of each resident in the assisted living residence, including the purpose and payee of each disbursement, and shall render a true account of the record to the resident or his or her representative upon demand and upon termination of the resident's stay in the assisted living residence.

(d) Any person or corporation who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or imprisoned in jail not more than one year, or both fined and imprisoned.

§16-5E-1. Purpose.

It is the policy of this state to encourage the availability of appropriate noninstitutional surroundings for the elderly and for the care of persons in need limited and intermittent of nursing care or personal assistance. The registration of providers of services to such residents in unlicensed homes will help to identify where the services are available and to ensure that individuals in unlicensed homes are receiving care appropriate to their needs.

§16-5E-1a. Powers, rights and duties of the director.

In the administration of this article, the director shall have the following powers, duties and rights:

(a) To promulgate and enforce rules governing complaint investigations within the homes of legally unlicensed health care providers registered under this article. Such rules shall include the minimum health, safety and welfare standards in the following areas:

(1) Physical environment;

(2) Nutrition;

(3) Requirements related to limited and intermittent nursing care;

(4) Medication administration;

(5) Protective and personal services to be provided;

(6) Treatment;

(7) Visitation privileges governing access to a resident by immediate family or other relatives of the resident and by other persons who are visiting with the consent of the resident;

(8) Such other categories as the director determines to be appropriate to ensure residents' health, safety and welfare.

(b) To exercise as sole authority all powers relating to issuance, suspension and revocation of registration of legally unlicensed homes providing health care;

(c) To issue directed plans of correction for deficiencies identified during complaint investigations;

(d) To order closure of any home for failure to comply with a directed plan of corrections;

(e) To take all actions required under the provisions of sections three, four, five and six of this article; and

(f) To deny registration to any operator of a legally unlicensed home who is listed on the state abuse registry.

§16-5E-2. Definitions.

As used in this article, unless a different meaning appears from the context:

(a) "Director" means the secretary of the Department of Health and Human Resources or his or her designee.

(b) "Limited and intermittent nursing care" means direct hands on nursing care of an individual who needs no more than two hours of nursing care per day for a period of no longer than ninety consecutive days per episode, which may only be provided when the need for such care meets the following factors: (1) The resident requests to remain in the home; (2) the resident is advised of the availability of other specialized health care facilities to treat his or her condition; and (3) the need for such care is the result of a medical pathology or a result of normal aging process. Limited and intermittent nursing care shall be provided under the supervision of a registered professional nurse and in accordance with rules promulgated by the director.

(c) "Nursing care" means those procedures commonly employed in providing for the physical, emotional and rehabilitational needs of the ill or otherwise incapacitated which require technical skills and knowledge beyond that which the untrained person possesses, including, but not limited to, such procedures as: Irrigations; catheterization; special procedures contributing to rehabilitation; and administration of medication by any method prescribed by a physician which involves a level of complexity and skill in administration not possessed by the untrained person.

(d) "Personal assistance" means personal services, including, but not limited to, the following: Help in walking, bathing, dressing, feeding or getting in or out of bed, or supervision required because of the age or physical or mental impairment of the resident.

(e) "Resident" means an individual who is provided services, whether or not for a fee, by a service provider, but resident does not include a person receiving services provided by another who is related to him or her or the spouse thereof by blood or marriage, within the degree of consanguinity of the second cousin. Residents, who are incapable of self-preservation, shall be housed only on a ground floor level of the home with direct egress to the outside. A registered unlicensed health care home shall: (1) Provide residents at the time of admission with the name, address and telephone number of the offices of health facility licensure and certification, the state long-term care ombudsman, and adult protective services, all within the Department of Health and Human Resources; and (2) advise residents both orally and in writing of their right to file a complaint with the aforementioned entities.

(f) "Self-preservation" means that a person is at least capable of removing him or her self from situations involving imminent danger, such as fire.

(g) "Service provider" means the individual administratively responsible for providing to consumers for a period of more than twenty-four hours, whether for compensation or not, services of personal assistance for one to three residents and who may require limited and intermittent nursing care, including those individuals who qualify for and are receiving services coordinated by a licensed hospice: Provided, That services utilizing equipment which requires auxiliary electrical power in the event of a power failure may not be used unless the home has a backup power generator.

§16-5E-3. Registration of service providers required; form of registration; information to be provided.

(a) Service providers shall register with the director. No fee may be charged for registration. Registration information shall be provided on a registration form or may be verbally communicated to the director for placement by the director on the form, but no provision of information may be deemed to meet the registration requirement until the signature of the service provider is recorded on the registration form.

(b) Information required for registration shall include the following:

(1) Name, address and telephone number of the service provider;

(2) Address and telephone numbers where services are provided to residents and the number of residents provided service;

(3) The services, such as nursing care or personal assistance, provided to residents; and

(4) Other information required by rules promulgated by the director.

(c) The director may deny registration if the information provided in an application is known by the applicant to be false or the applicant fails to report required information.

(d) A legally unlicensed provider may operate no more than one legally unlicensed home.

§16-5E-4. Public availability of registry.

The director shall publish and make available to the public on an annual basis a list of service providers registered in accordance with section three of this article.

§16-5E-5. Inspections; right of entry.

The director may employ inspectors to enforce the provisions of this article. These inspectors shall have the right of entry into any place where services are provided by a service provider, to determine the number of residents therein and the adequacy of services being provided to them. The director may obtain a search warrant to inspect those premises that the director has reason to believe are being used to provide services. The inspectors shall have access to all parts of the home and grounds, including, but not limited to, all areas of all buildings on the grounds of a home, food supplies, resident medications and resident medical records. Inspectors shall also be permitted to conduct private interviews with all residents and staff of a home.

If after investigating a complaint, the director determines that the complaint is substantiated and that an immediate and serious threat to a resident's health or safety exists, the director may petition the circuit court for an injunction, order of abatement or other appropriate action or proceeding to: (1) Close the home; (2) transfer residents in the home to other facilities; or (3) appoint temporary management to oversee the operation of the home to assure the health, safety, welfare and rights of the home's residents where there is a need for temporary management to ensure compliance with the court's order. Any home aggrieved by a determination or assessment made pursuant to this section shall have the right to an administrative appeal as set forth in section twelve, article five-c of this chapter.

§16-5E-6. Enforcement; criminal penalties.

(a) Any service provider who fails to register with the director shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 or more than $2,500 or imprisoned in jail not less than ten days, or more than thirty days after notice by certified mail by the director to such service provider of the requirements of this article.

(b) Any person who interferes with or impedes in any way the lawful enforcement of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 or more than $2,500 or imprisoned in the jail not less than ten days, or more than thirty: Provided, That prior to July 1, 1989, no such penalty may be imposed upon a service provider until thirty days after notice by certified mail by the director to the service provider at the requirements of this article.

(c) If after investigating a complaint, the director determines that the home is housing more than three residents, the director shall assess a civil penalty of $50 per day per the number of residents exceeding three. Each day the violation continues, after the date of citation shall constitute a separate violation. The date of citation is the date the facility receives the written statement of deficiencies.

(d) The director may in his or her discretion bring an action to enforce compliance with the provisions of this article.

(e) The circuit court of Kanawha County or the circuit court of the county in which the conduct occurred shall have jurisdiction in all civil enforcement actions brought under this article and may order equitable relief without bond.

§16-5F-1

Repealed

Acts, 2017 Reg. Sess., Ch. 185.

§16-5F-2

Repealed

Acts, 2017 Reg. Sess., Ch. 185.

§16-5F-3

Repealed

Acts, 2017 Reg. Sess., Ch. 185.

§16-5F-4

Repealed

Acts, 2017 Reg. Sess., Ch. 185.

§16-5F-5

Repealed

Acts, 2017 Reg. Sess., Ch. 185.

§16-5F-6

Repealed

Acts, 2017 Reg. Sess., Ch. 185.

§16-5F-7

Repealed

Acts, 2017 Reg. Sess., Ch. 185.

§16-5G-1. Declaration of legislative policy.

The Legislature hereby finds and declares that hospitals owned or operated by nonprofit corporations, nonprofit associations or local governmental units are relied on by the citizens of this state for services essential to their health and well-being. The Legislature further finds and declares that public funds from various sources and by various means contribute significantly to the revenues and operations of such institutions. Therefore, it is in the best interest of the people of this state for all proceedings of the boards of directors or other governing bodies of such hospitals to be conducted in an open and public manner so that the people can remain informed of the decisions and decision making processes affecting the health services on which they so vitally depend and which they help support through tax exemptions, public funding and other means.

§16-5G-2.  Definitions.

As used in this article:

(1) "Decision" means any determination, action, vote or final disposition of a motion, proposal, resolution, order or measure on which a vote of the governing body is required at any meeting at which a quorum is present;

(2) "Executive session" means any meeting or part of a meeting of the governing body of a hospital that is closed to the public;

(3) "Governing body" means:

(A) With respect to a hospital owned or operated by a nonprofit corporation, the board of directors  established pursuant to section eight hundred one, article eight, chapter thirty-one-e of this code;

(B) With respect to a county hospital, the board of trustees established pursuant to section fifteen, article three, chapter seven of this code; or

(C) With respect to all other hospitals subject to this article, the single board of directors, board of trustees, or, if given another name, the single group of governing board members having the authority to make decisions  concerning the management and control of a hospital:   Provided, That the medical staff of a hospital, the executive committee of the medical staff of a hospital and any other committee or subcommittee of the medical staff of a hospital are not a governing body of any hospital described in paragraphs (A), (B) and (C) of this subdivision;

(4) "Hospital" means any hospital owned or operated by a nonprofit corporation, nonprofit association or local governmental unit;

(5) "Meeting" means the convening of  the governing body of a hospital for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter: Provided, That  the convening of a committee, subcommittee or other subcomponent of the governing body or the convening of any group other than the governing body that makes recommendations to the governing body is not a meeting within the meaning of this article unless the committee, subcommittee, subcomponent or group is vested with independent decision-making authority and exercises the independent decision-making authority at any convening; and

(6) "Quorum" means, unless otherwise defined by applicable law, a simple majority of the constituent membership of the governing body.

§16-5G-3. Proceedings to be open; public notice of meetings.

Except as expressly and specifically otherwise provided by law, and except as provided in section four of this article, all meetings of a governing body of a hospital shall be open to the public. Any governing body may make and enforce reasonable rules and regulations for attendance and presentation at any meeting where there is not room enough for all members of the public who wish to attend. This article does not prohibit the removal from a meeting of any member of the public who is disrupting the meeting to the extent that orderly conduct of the meeting is compromised: Provided, That persons who desire to address the governing body may not be required to register to address the body more than fifteen minutes prior to time the scheduled meeting is to commence.

Each governing body shall promulgate rules by which the date, time and place of all regularly scheduled meetings and the date, time, place and purpose of all special meetings are made available, in advance, to the public and news media, except in the event of an emergency requiring immediate official action.

Each governing body shall file a notice of any meeting by causing a notice of the meeting to be printed in a local newspaper: Provided, That the governing body may otherwise provide by rule or regulation an alternative procedure that will reasonably provide the public with notice. Each notice shall state the date, time, place and purpose of the meeting.

In the event of an emergency requiring immediate official action, any governing body may provide an emergency meeting notice at any time prior to the meeting. The emergency meeting notice shall state the date, time, place and purpose of the meeting and the facts and circumstances of the emergency.

Upon petition by any adversely affected party, any court of competent jurisdiction may invalidate any action taken at any meeting for which notice did not comply with the requirements of this section.

§16-5G-4.  Exceptions.

(a) This article does not prevent the governing body of a hospital from holding an executive session during a regular, special or emergency meeting, after the presiding officer has identified the authorization under this article for the holding of the executive session and has presented it to the governing body and to the general public, but no official action may be made in the executive session, except as is necessary:

(1) To protect the confidentiality of protected health information as defined by the Health Insurance Portability and Accountability Act of 1996;

(2) To preserve the privilege and confidentiality of peer review information as provided in article three-c, chapter thirty of this code;

(3) To approve confidential legal settlements or otherwise act in connection with matters described in subdivision (5), subsection (b) of this section; or

(4) To end an executive session and readmit the public to a meeting.

(b) An executive session may be held only upon a majority affirmative vote of the members present of the governing body of a hospital as defined in this article for the following:

(1) The appointment, employment, retirement, promotion, demotion, disciplining, resignation, discharge, dismissal or compensation of any officer or employee, or other personnel matters, or for the purpose of conducting a hearing on a complaint against an officer or employee, unless the officer or employee requests an open meeting;

(2) The disciplining, suspension or expulsion of any student or trainee enrolled in a program conducted by the hospital, unless the student or trainee requests an open meeting;

(3) Investigations and proceedings involving the issuance, denial, suspension or revocation of the authority or privilege of a medical practitioner to use the hospital and to engage in particular kinds of practice or to perform particular kinds of operations, unless the person seeking the authority or privilege or whose authority or privilege was denied, suspended or revoked requests an open meeting;

(4) Matters concerning the failure or refusal of a medical practitioner to comply with reasonable regulations of a hospital with respect to the conditions under which operations are performed and other medical services are delivered;

(5) To conduct privileged attorney-client communications or to consider the work product of the hospital's attorney or the hospital administration, including materials prepared by an attorney or others in anticipation of litigation, litigation strategies and reports, confidential legal settlements and discussions, negotiations and alternative dispute resolution proceedings conducted in pursuit of a legal settlement;

(6) The physical or mental health of any person, unless the person requests an open meeting;

(7) Matters which, if discussed in public, would be likely to affect adversely the reputation of any person;

(8) Any official investigation or matters relating to crime prevention or law enforcement;

(9) The development of security personnel or devices;

(10) Matters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving competition which, if made public, might adversely affect the financial or other interest of the state or any political subdivision or the hospital; or

(11) To consider or act upon the matters described in subdivisions (1), (2), (3) and (4), subsection (a) of this section.

§16-5G-5. Minutes.

Each governing body shall provide for the preparation of written minutes of all of its meetings. Subject to the exceptions set forth in section four of this article, minutes of all meetings except minutes of executive sessions, if any are taken, shall be available to the public within a reasonable time after the meeting and shall include, at least, the following information:

(1) The date, time and place of the meeting;

(2) The name of each member of the governing body present and absent;

(3) All motions, proposals, resolutions, orders, ordinances and measures proposed, the name of the person proposing the same and their disposition; and

(4) The results of all votes and, upon the request of a member, pursuant to the rules, policies or procedures of the governing board for recording roll call votes, the vote of each member, by name.

§16-5G-6. Enforcement by injunctions; actions in violation of article voidable.

The circuit court in the county where a hospital is located has jurisdiction to enforce this article upon civil action commenced by any citizen of this state within one hundred twenty days after the action complained of was taken or the decision complained of was made. Where the action seeks injunctive relief, no bond may be required unless the petition appears to be without merit or made with the sole intent of harassing or delaying or avoiding return by the governing body.

The court is empowered to compel compliance or enjoin noncompliance with the provisions of this article and to annul a decision made in violation of this article. An injunction may also order that subsequent actions be taken or decisions be made in conformity with the provisions of this article.

Any order which compels compliance or enjoins noncompliance with the provisions of this article, or which annuls a decision made in violation of this article shall include findings of fact and conclusions of law and shall be recorded in the minutes of the governing body.

Upon entry of an order, the court may, where the court finds that the governing body intentionally violated the provisions of this article, order the governing body to pay the complaining person's necessary attorney fees and expenses. Where the court, upon denying the relief sought by the complaining person in the action, finds that the action was frivolous or commenced with the primary intent of harassing the governing body or any member thereof or, in the absence of good faith, of delaying any meetings or decisions of the governing body, the court may require the complaining person to pay the governing body's necessary attorney fees and expenses.

Any person who intentionally violates the provisions of this article is liable in an action for compensatory and punitive damages not to exceed a total of $500.

§16-5G-7. Violation of article; penalties.

(a) In addition to or in conjunction with any other acts or omissions which may be determined to violate this article, it is a violation of this article for a governing body to hold a private meeting with the intention of transacting public business, thwarting public scrutiny and making decisions that eventually become official action.

(b) Any person who is a member of a governing body of a hospital required to conduct open meetings in compliance with the provisions of this article and who willfully and knowingly violates the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or confined in jail not more than ten days, or both fined and confined.

§16-5H-1. Purpose and short title.

This article shall be known as the Chronic Pain Clinic Licensing Act. The purpose of this act is to establish licensing requirements for facilities that treat patients for chronic pain management in order to ensure that patients may be lawfully treated for chronic pain by physicians in facilities that comply with oversight requirements developed by the Department of Health and Human Resources.

§16-5H-2. Definitions.

“Chronic pain” means pain that has persisted after reasonable medical efforts have been made to relieve the pain or cure its cause and that has continued, either continuously or episodically, for longer than three continuous months. For purposes of this article, “chronic pain” does not include pain directly associated with a terminal condition.

“Director” means the Director of the Office of Health Facility Licensure and Certification within the Office of the Inspector General.

“Owner” means any person, partnership, association, or corporation listed as the owner of a pain management clinic on the licensing forms required by this article.

“Pain management clinic” means all privately-owned pain management clinics, facilities, or offices not otherwise exempted from this article and which meet both of the following criteria:

(1) Where in any month more than 50 percent of patients of the clinic are prescribed or dispensed Schedule II opioids or other Schedule II controlled substances specified in rules promulgated pursuant to this article for chronic pain resulting from conditions that are not terminal; and

(2) The facility meets any other identifying criteria established by the secretary by rule.

“Physician” means an individual authorized to practice medicine or surgery or osteopathic medicine or surgery in this state.

“Prescriber” means an individual who is authorized by law to prescribe drugs or drug therapy related devices in the course of the individual’s professional practice, including only a medical or osteopathic physician authorized to practice medicine or surgery; a physician assistant or osteopathic physician assistant who holds a certificate to prescribe drugs; or an advanced nurse practitioner who holds a certificate to prescribe.

“Secretary” means the Secretary of the West Virginia Department of Health and Human Resources. The secretary may define in rules any term or phrase used in this article which is not expressly defined.

§16-5H-3. Pain management clinics to obtain license; application; fees and inspections.

(a) No person, partnership, association or corporation may operate a pain management clinic without first obtaining a license from the secretary in accordance with the provisions of this article and the rules lawfully promulgated pursuant to this article.

(b) Any person, partnership, association or corporation desiring a license to operate a pain management clinic in this state shall file with the Office of Health Facility Licensure and Certification an application in such form as the secretary shall prescribe and furnish accompanied by a fee to be determined by the secretary.

(c) The Director of the Office of Health Facility Licensure and Certification or his or her designee shall inspect each facility prior to issuing a license and review all documentation submitted with the application. The secretary shall issue a license if the facility is in compliance with the provisions of this article and with the rules lawfully promulgated pursuant to this article.

(d) A license shall expire one year from the date of issuance. Sixty days prior to the expiration date, an application for renewal shall be submitted on forms furnished by the secretary. A license shall be renewed if the secretary determines that the applicant is in compliance with this article and with all rules promulgated pursuant to this article. A license issued to one facility pursuant to this article is not transferable or assignable. A change of ownership of a licensed pain management clinic requires submission of a new application.

(e) The secretary or his or her designee shall inspect on a periodic basis all pain management clinics that are subject to this article and all rules adopted pursuant to this article to ensure continued compliance.

§16-5H-4. Operational requirements.

(a) Any person, partnership, association or corporation that desires to operate a pain management clinic in this state must submit to the director documentation that the facility meets all of the following requirements:

(1) The clinic shall be licensed in this state with the secretary, the Secretary of State, the State Tax Department and all other applicable business or license entities.

(2) The application shall list all owners of the clinic. At least one owner shall be a physician actively licensed to practice medicine, surgery or osteopathic medicine or surgery in this state. The clinic shall notify the secretary of any change in ownership within ten days of the change and must submit a new application within the time frame prescribed by the secretary.

(3) Each pain management clinic shall designate a physician owner who shall practice at the clinic and who will be responsible for the operation of the clinic. Within ten days after termination of a designated physician, the clinic shall notify the director of the identity of another designated physician for that clinic. Failing to have a licensed designated physician practicing at the location of the clinic may be the basis for a suspension or revocation of the clinic license. The designated physician shall:

(A) Have a full, active and unencumbered license to practice medicine, surgery or osteopathic medicine or surgery in this state:

(B) Meet one of the following training requirements:

(i) Complete a pain medicine fellowship that is accredited by the Accreditation Council for Graduate Medical Education or such other similar program as may be approved by the secretary; or

(ii) Hold current board certification by the American Board of Pain Medicine or current board certification by the American Board of Anesthesiology or such other board certification as may be approved by the secretary.

(C) Practice at the licensed clinic location for which the physician has assumed responsibility;

(D) Be responsible for complying with all requirements related to the licensing and operation of the clinic;

(E) Supervise, control and direct the activities of each individual working or operating at the facility, including any employee, volunteer or individual under contract, who provides treatment of chronic pain at the clinic or is associated with the provision of that treatment. The supervision, control and direction shall be provided in accordance with rules promulgated by the secretary.

(4) All persons employed by the facility shall comply with the requirements for the operation of a pain management clinic established by this article or by any rule adopted pursuant to this article.

(5) No person may own or be employed by or associated with a pain management clinic who has previously been convicted of, or pleaded guilty to, any felony in this state or another state or territory of the United States. All owners, employees, volunteers or associates of the clinic shall undergo a criminal records check prior to operation of the clinic or engaging in any work, paid or otherwise. The application for license shall include copies of the background check for each anticipated owner, physician, employee, volunteer or associate. The secretary shall review the results of the criminal records check and may deny licensure for any violation of this requirement. The facility shall complete a criminal records check on any subsequent owner, physician, employee, volunteer or associate of the clinic and submit the results to the secretary for continued review.

(6) The clinic may not be owned by, nor may it employ or associate with, any physician or prescriber:

(A) Whose Drug Enforcement Administration number has ever been revoked;

(B) Whose application for a license to prescribe, dispense or administer a controlled substance has been denied by any jurisdiction; or

(C) Who, in any jurisdiction of this state or any other state or territory of the United States, has been convicted of or plead guilty or nolo contendere to an offense that constitutes a felony for receipt of illicit and diverted drugs, including controlled substances, as defined by section one hundred one, article one, chapter sixty-a of this code.

(7) A person may not dispense any medication, including a controlled substance, as defined by section one hundred one, article one, chapter sixty-a of this code, on the premises of a licensed pain management clinic unless he or she is a physician or pharmacist licensed in this state. Prior to dispensing or prescribing controlled substances, as defined by section one hundred one, article one, chapter sixty-a of this code, at a pain management clinic, the treating physician must access the Controlled Substances Monitoring Program database maintained by the Board of Pharmacy to ensure the patient is not seeking controlled substances from multiple sources. If the patient receives ongoing treatment, the physician shall also review the Controlled Substances Monitoring Program database at each patient examination or at least every ninety days. The results obtained from the Controlled Substances Monitoring Program database shall be maintained with the patient's medical records.

(8) Each clinic location shall be licensed separately, regardless of whether the clinic is operated under the same business name or management as another clinic.

(9) A pain management clinic shall not dispense to any patient more than a seventy-two-hour supply of a controlled substance, as defined by section one hundred one, article one, chapter sixty-a of this code.

(10) The pain management clinic shall develop patient protocols, treatment plans and profiles, as prescribed by the secretary by rule, and which shall include, but not be limited by, the following guidelines:

(A) When a physician diagnoses an individual as having chronic pain, the physician may treat the pain by managing it with medications in amounts or combinations that may not be appropriate when treating other medical conditions. The physician's diagnosis shall be made after having the individual evaluated by one or more other physicians who specialize in the treatment of the area, system or organ of the body perceived as the source of the pain unless the individual has been previously diagnosed as suffering from chronic pain and is referred to the pain management clinic by such diagnosing physician. The physician's diagnosis and treatment decisions shall be made according to accepted and prevailing standards for medical care.

(B) The physician shall maintain a record of all of the following:

(i) Medical history and physical examination of the individual;

(ii) The diagnosis of chronic pain, including signs, symptoms and causes;

(iii) The plan of treatment proposed, the patient's response to the treatment and any modification to the plan of treatment;

(iv) The dates on which any medications were prescribed, dispensed or administered, the name and address of the individual to or for whom the medications were prescribed, dispensed or administered and the amounts and dosage forms for the drugs prescribed, dispensed or administered;

(v) A copy of the report made by the physician to whom referral for evaluation was made.

(C) A physician, physician assistant, certified registered nurse anesthetist or advanced nurse practitioner shall perform a physical examination of a patient on the same day that the physician initially prescribes, dispenses or administers a controlled substance to a patient and at least four times a year thereafter at a pain management clinic according to accepted and prevailing standards for medical care.

(D) A physician authorized to prescribe controlled substances who practices at a pain management clinic is responsible for maintaining the control and security of his or her prescription blanks and any other method used for prescribing controlled substance pain medication. The physician shall comply with all state and federal requirements for tamper-resistant prescription paper. In addition to any other requirements imposed by statute or rule, the physician shall notify the secretary in writing within twenty-four hours following any theft or loss of a prescription blank or breach of any other method for prescribing pain medication.

(c) Upon satisfaction that an applicant has met all of the requirements of this article, the secretary may issue a license to operate a pain management clinic. An entity that obtains this license may possess, have custody or control of, and dispense drugs designated as Schedule II or Schedule III in sections two hundred six or two hundred eight, article two, chapter sixty-a of this code.

§16-5H-5. Exemptions.

(a) The following facilities are not pain management clinics subject to the requirements of this article:

(1) A facility that does not prescribe or dispense controlled substances for the treatment of chronic pain;

(2) A hospital licensed in this state, a facility located on the campus of a licensed hospital that is owned, operated or controlled by that licensed hospital, and an ambulatory health care facility as defined by section two, article two-d, chapter sixteen of this code that is owned, operated or controlled by a licensed hospital;

(3) A physician practice owned or controlled, in whole or in part, by a licensed hospital or by an entity that owns or controls, in whole or in part, one or more licensed hospitals;

(4) A hospice program licensed in this state;

(5) A nursing home licensed in this state;

(6) An ambulatory surgical facility as defined by section two, article two-d, chapter sixteen of this code; and

(7) A facility conducting clinical research that may use controlled substances in studies approved by a hospital-based institutional review board or an institutional review board accredited by the association for the accreditation of human research protection programs.

(b) Any facility that is not included in this section may petition to the secretary for an exemption from the requirements of this article. All such petitions are subject to the administrative procedures requirements of chapter twenty-nine-a of this code.

§16-5H-6. Inspection.

(a) The Office of Health Facility Licensure and Certification shall inspect each pain management clinic annually, including a review of the patient records, to ensure that it complies with this article and the applicable rules.

(b) During an onsite inspection, the inspector shall make a reasonable attempt to discuss each violation with the designated physician or other owners of the pain management clinic before issuing a formal written notification.

(c) Any action taken to correct a violation shall be documented in writing by the designated physician or other owners of the pain management clinic and verified by follow-up visits by the Office of Health Facility Licensure and Certification.

§16-5H-7. Suspension; revocation.

(a) The secretary may suspend or revoke a license issued pursuant to this article if the provisions of this article or of the rules promulgated pursuant to this article are violated. The secretary may revoke a clinic's license and prohibit all physicians associated with that pain management clinic from practicing at the clinic location based upon an annual or periodic inspection and evaluation.

(b) Before any such license is suspended or revoked, however, written notice shall be given to the licensee, stating the grounds of the complaint and shall provide notice of the right to request a hearing. The notice shall be sent by certified mail to the licensee at the address where the pain management clinic concerned is located. The licensee shall be entitled to be represented by legal counsel at the hearing.

(c) If a license is revoked pursuant to this article, a new application for a license may be considered by the secretary if, when and after the conditions upon which revocation was based have been corrected, and evidence of this fact has been furnished to the secretary. A new license may then be granted after proper inspection has been made and all provisions of this article and rules promulgated pursuant to this article have been satisfied.

(d) All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply and govern any hearing authorized and required by the provisions of this article and the administrative procedure in connection therewith.

(e) Any applicant or licensee who is dissatisfied with the decision of the secretary as a result of the hearing provided in this section may, within thirty days after receiving notice of the decision, appeal the decision to the circuit court of Kanawha County, in term or in vacation, for judicial review of the decision.

(f) The court may affirm, modify or reverse the decision of the secretary and either the applicant or licensee or the secretary may appeal from the court's decision to the Supreme Court of Appeals.

(g) If the license of a pain management clinic is revoked or suspended, the designated physician of the clinic, any other owner of the clinic or the owner or lessor of the clinic property shall cease to operate the facility as a pain management clinic as of the effective date of the suspension or revocation. The owner or lessor of the clinic property is responsible for removing all signs and symbols identifying the premises as a pain management clinic within thirty days.

(h) Upon the effective date of the suspension or revocation, the designated physician of the pain management clinic shall advise the secretary and the Board of Pharmacy of the disposition of all drugs located on the premises. The disposition is subject to the supervision and approval of the secretary. Drugs that are purchased or held by a pain management clinic that is not licensed may be deemed adulterated.

(i) If the license of a pain management clinic is suspended or revoked, any person named in the licensing documents of the clinic, including persons owning or operating the pain management clinic, may not, as an individual or as part of a group, apply to operate another pain management clinic for five years after the date of suspension or revocation.

(j) The period of suspension for the license of a pain management clinic shall be prescribed by the secretary, but may not exceed one year.

§16-5H-8. Violations; penalties; injunction.

(a) Any person, partnership, association or corporation which establishes, conducts, manages or operates a pain management clinic without first obtaining a license therefor as herein provided, or which violates any provisions of this article or any rule lawfully promulgated pursuant to this article, shall be assessed a civil penalty by the secretary in accordance with this subsection. Each day of continuing violation after conviction shall be considered a separate violation:

(1) If a pain management clinic or any owner or designated physician is found to be in violation of any provision of this article, unless otherwise noted herein, the secretary may suspend or revoke the clinic's license.

(2) If the clinic's designated physician knowingly and intentionally misrepresents actions taken to correct a violation, the secretary may impose a civil penalty not to exceed $10,000, and, in the case of an owner-operated pain management clinic, revoke or deny a pain management clinic's license.

(3) If an owner or designated physician of a pain management clinic concurrently operates an unlicensed pain management clinic, the secretary may impose a civil penalty upon the owner or physician, or both, not to exceed $5,000 per day.

(4) If the owner of a pain management clinic that requires a license under this article fails to apply for a new license for the clinic upon a change-of-ownership and operates the clinic under the new ownership, the secretary may impose a civil penalty not to exceed $5,000.

(5) If a physician knowingly operates, owns or manages an unlicensed pain management clinic that is required to be licensed pursuant to this article; knowingly prescribes or dispenses or causes to be prescribed or dispensed, controlled substances in an unlicensed pain management clinic that is required to be licensed; or licenses a pain management clinic through misrepresentation or fraud; procures or attempts to procure a license for a pain management clinic for any other person by making or causing to be made any false representation, the secretary may assess a civil penalty of not more than $20,000. The penalty may be in addition to or in lieu of any other action that may be taken by the secretary or any other board, court or entity.

(b) Notwithstanding the existence or pursuit of any other remedy, the secretary may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, or corporation to restrain or prevent the establishment, conduct, management or operation of any pain management clinic or violation of any provisions of this article or any rule lawfully promulgated thereunder without first obtaining a license therefor in the manner hereinbefore provided.

(c) In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the secretary shall consider the following factors:

(1) The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient has resulted, or could have resulted, from the pain management clinic's actions or the actions of the designated or practicing physician, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;

(2) What actions, if any, the owner or designated physician took to correct the violations;

(3) Whether there were any previous violations at the pain management clinic; and

(4) The financial benefits that the pain management clinic derived from committing or continuing to commit the violation.

(d) Upon finding that a physician has violated the provisions of this article or rules adopted pursuant to this article, the secretary shall provide notice of the violation to the applicable licensing board.

§16-5H-9. Rules.

(a) The Secretary of the Department of Health and Human Resources, in collaboration with the West Virginia Board of Medicine and the West Virginia Board of Osteopathy, shall promulgate rules in accordance with the provisions of §29A-1-1 et seq. of this code for the licensure of pain management clinics to ensure adequate care, treatment, health, safety, welfare, and comfort of patients at these facilities. These rules shall include, at a minimum:

(1) The process to be followed by applicants seeking a license;

(2) The qualifications and supervision of licensed and nonlicensed personnel at pain management clinics and training requirements for all facility health care practitioners who are not regulated by another board;

(3) The provision and coordination of patient care, including the development of a written plan of care;

(4) The management, operation, staffing, and equipping of the pain management clinic;

(5) The clinical, medical, patient, and business records kept by the pain management clinic;

(6) The procedures for inspections and for the review of utilization and quality of patient care;

(7) The standards and procedures for the general operation of a pain management clinic, including facility operations, physical operations, infection control requirements, health and safety requirements, and quality assurance;

(8) Identification of drugs that may be used to treat chronic pain that identify a facility as a pain management clinic, including, at a minimum, tramadol and carisoprodol;

(9) Any other criteria that identify a facility as a pain management clinic;

(10) The standards and procedures to be followed by an owner in providing supervision, direction, and control of individuals employed by or associated with a pain management clinic;

(11) Data collection and reporting requirements; and

(12) Such other standards or requirements as the secretary determines are appropriate.

(b) The rules authorized by this section may be filed as emergency rules if deemed necessary to promptly effectuate the purposes of this article. The Legislature finds that the changes made to this article during the 2018 regular session of the Legislature constitute an emergency for the purposes of filing any amendment to existing rules.  

§16-5H-10. Advertisement disclosure.

Any advertisement made by or on behalf of a pain management clinic through public media, such as a telephone directory, medical directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication, concerning the treatment of chronic pain, as defined in section two of this article, shall include the name of, at a minimum, one physician owner responsible for the content of the advertisement.

§16-5I-1. Purpose and short title.

This article shall be known as the Hospice Licensure Act. The purpose of this Act is to establish licensing requirements for hospices. It is the intent of the Legislature to establish, promote and make available within this state a comprehensive hospice care program for the treatment of physical, emotional and mental symptoms of terminal illness.

§16-5I-2. Definitions.

(a) "Bereavement services" means support services designed to assist individuals to experience, respond emotionally to and adjust to the death of another person.

(b) "Hospice" means a coordinated program of home and inpatient care provided directly or through an agreement under the direction of an identifiable hospice administration which provides palliative and supportive medical and other health services to terminally ill individuals and their families. Hospice utilizes a medically directed interdisciplinary team. A hospice program of care provides care to meet the physical, psychological, social, spiritual and other special needs which are experienced during the final stages of illness and during dying and bereavement.

(c) "Interdisciplinary team" means the hospice patient and the patient's family, the attending physician and the following hospice personnel: Physician, nurse, social worker, clergy and trained volunteer. Providers of supportive services such as mental health, pharmaceutical and any other appropriate allied health services may also be included on the team as the needs of the individual dictate.

(d) "Palliative services" means treatment directed at controlling pain, relieving other symptoms and focusing on the special needs of the individual and family as they experience the stress of the dying process, rather than treatment designed for investigation and intervention for the purpose of cure or prolongation of life.

(e) "Terminally ill" means that an individual has a medical prognosis that his or her life expectancy is six months or less or another length of time determined by the centers for Medicare and Medicaid services and designated in federal hospice regulations.

(f) "Secretary" means the Secretary of the West Virginia Department of Health and Human Resources. The Secretary may define in regulation any term or phrase used in this article which is not expressly defined.

§16-5I-3. Hospices to obtain license; application; fees and inspections.

(a) No person, partnership, association or corporation or any governmental unit or any division, department, board or agency thereof may operate a hospice without first obtaining a license from the Secretary in accordance with the provisions of this article and the rules lawfully promulgated hereunder.

(b) Any person, partnership, association or corporation or any governmental unit or any division, department, board or agency thereof desiring a license hereunder shall file with the Secretary an application in such form as the Secretary shall prescribe and furnish accompanied by a fee to be determined by the board of Health, based upon the number of persons served by the hospice. The Secretary shall inspect the hospice prior to issuing a license. Upon receipt and review of an application for license, the Secretary shall issue a license if the hospice is in compliance with the provisions of this article and with the rules lawfully promulgated hereunder. The license is not transferable or assignable.

(c) A license shall expire one year from the date of issuance. Sixty days prior to the expiration date, an application for renewal shall be submitted on forms furnished by the Secretary. A license shall be renewed if the Secretary determines that the applicant is in compliance with this article and with all rules promulgated hereunder.

(d) The Secretary or his or her designee shall inspect all hospices that are subject to rules adopted pursuant to this article periodically and at least as often as required by the Centers for Medicare and Medicaid Services in order to determine compliance with the provisions of this article and with rules adopted hereunder, and regulations promulgated by the Centers for Medicare and Medicaid Services.

§16-5I-4. Suspension; revocation.

(a) The Secretary is authorized to suspend or revoke a license issued hereunder if the provisions of this article or of the rules are violated.

(b) Before any such license is suspended or revoked, however, written notice shall be given the licensee, stating the grounds of the complaint, and the date, time and place set for the hearing on the complaint, which date shall not be less than thirty days from the time notice is given. Such notice shall be sent by registered mail to the licensee at the address where the hospice concerned is located. The licensee shall be entitled to be represented by legal counsel at the hearing.

(c) If a license is revoked as herein provided, a new application for a license shall be considered by the Secretary if, when and after the conditions upon which revocation was based have been corrected and evidence of this fact has been furnished. A new license shall then be granted after proper inspection has been made and all provisions of this article and rules promulgated hereunder have been satisfied.

(d) All of the pertinent provisions of article five, chapter twenty-nine-a of this code shall apply to and govern any hearing authorized and required by the provisions of this article and the administrative procedure in connection with and following any such hearing, with like effect as if the provisions of said article five were set forth in extenso in this section.

(e) Any applicant or licensee who is dissatisfied with the decision of the Secretary as a result of the hearing provided in this section may, within thirty days after receiving notice of the decision, appeal to the circuit court, in term or in vacation, of Kanawha County for judicial review of the decision.

(f) The court may affirm, modify or reverse the decision of the Secretary and either the applicant or licensee or the Secretary may appeal from the court's decision to the Supreme Court of Appeals.

§16-5I-5. Secretary of Health and Human Resources to establish rules.

The Secretary of the Department of Health and Human Resources may promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code for the licensure of hospice programs to ensure adequate care, treatment, health, safety, welfare and comfort of hospice patients. Such rules shall include, but not be limited to:

(a) The qualifications and supervision of licensed and nonlicensed personnel;

(b) The provision and coordination of inpatient care and in-home treatment services, including the development of a written plan of care;

(c) The management, operation, staffing and equipping of the hospice program;

(d) The clinical and business records kept by the hospice;

(e) The procedures for the review of utilization and quality of patient care; and

(f) Such other requirements as the Secretary determines to be appropriate.

§16-5I-6. Violations; penalties; injunction.

(a) Any person, partnership, association or corporation and any local governmental unit or any division, department, board or agency thereof which establishes, conducts, manages or operates a hospice without first obtaining a license therefor as herein provided, or which violates any provisions of this article or any rule or regulation lawfully promulgated thereunder, shall be assessed a civil penalty by the Secretary not to exceed $50 for each violation. Each day of continuing violation after conviction shall be considered a separate violation.

(b) Notwithstanding the existence or pursuit of any other remedy, the Secretary may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, corporation or any governmental unit or any division, department, board or agency thereof to restrain or prevent the establishment, conduct, management or operation of any hospice or violation of any provisions of this article or any rule or regulation lawfully promulgated thereunder without first obtaining a license therefor in the manner hereinbefore provided.

§16-5J-1. Legislative findings.

The Legislature finds that the diagnosis and treatment of human affliction is or may be largely determined by the results of laboratory testing and that inaccurate laboratory test results endanger the health and lives of the citizens of West Virginia. A due respect for the citizenry of the state requires that all such testing be done under the supervision of qualified and competent persons having sufficient expertise and experience to assure the quality and accuracy of clinical laboratory testing. Further, it is imperative that laboratories be regulated and licensed to ensure that the intent of this article be met.

§16-5J-2. Definition.

The term "clinical laboratory" means any facility or place, however named, for the biological, microbiological, serological, chemical, immuno-hematological, hematological, biophysical, crytological, pathological, or other examination of materials derived from the human body for the purpose of providing information for the diagnosis, prevention or treatment of any disease or impairment of, or the assessment of the health of human beings.

§16-5J-3. Rules; recognized external standards.

The director of the department of health shall promulgate, pursuant to chapter twenty-nine-a of this code, rules required to implement this article, and such rules shall specifically address, among other things, training, education and experience requirements. The standards to be adopted by the department of health shall be equal to or higher than such standards currently applicable and as established by the college of American pathologists, the center for disease control, American Osteopathic Board of Pathology, American Osteopathic Hospital Association, the Medicare program or the joint commission for the accreditation of hospitals: Provided, That any laboratory in this state accredited by or certified by one of these organizations or the Medicare program shall be exempt from the requirements of licensure with no further inquiry by the department of health, and any such accredited or certified laboratory shall be exempt from the provisions of this article as long as such laboratories remain so accredited or certified: Provided, however, That all laboratories shall have five years from the effective date of this article to come into compliance.

§16-5J-4. Powers and duties.

In addition to promulgating rules specified in section three of this article, the director of the department of health, with the advice of the advisory board created in section five of this article, has the power to:

(a) Adopt rules for clinical laboratory licensure;

(b) Establish rules for continued evaluation of laboratory testing, such rules and evaluations being at least equivalent to the appropriate section of the "Clinical Laboratory Improvement Act of 1967";

(c) Institute and administer a program of inspection to ensure compliance with standards established in this article and rules established pursuant to this article;

(d) Issue a license to those clinical laboratories which meet requirements for licensure under this article;

(e) Set a reasonable fee for application and licensure;

(f) Withhold, revoke or suspend or restrict the license of any clinical laboratory which fails to meet requirements for licensure or relicensure.

The cost of the initial inspection of any new laboratory constructed after July 1, 1990, shall be the responsibility of the prospective licensee.

Within the limit of available funds, the department of health shall inspect clinical laboratories on a periodic basis to ensure compliance with standards and regulations.

§16-5J-5.

Repealed.

Acts, 2015 Reg. Sess., Ch. 53.

§16-5J-6. Hearing and judicial review.

If a license is withheld, suspended or revoked, the laboratory is entitled to a hearing before representatives of the department of health within sixty days of the withholding, suspension or revocation decision. Such laboratory may be represented at the hearing by counsel and may present evidence in its defense. The final order of the director will be based on a record of the hearing and shall contain findings of fact and conclusions of law. The laboratory may appeal an adverse order to the circuit court of Kanawha County or the circuit court of the county in which the laboratory is located to determine whether the director abused his discretion or exceeded his jurisdiction. The department of health has the power to obtain an injunction during the time preceding the hearing against any laboratory which fails to meet licensure requirements and whose continued operation poses a significant threat to the public health.

§16-5J-7. Exemptions.

This article does not include or apply to any laboratory or laboratories maintained and operated by the federal government or to any laboratory or laboratories maintained and operated purely for research or teaching purposes nor to any laboratory operated by a primary health care center having tax exempt status and receiving contributions which are deductible to the contributor under provisions of federal law. All county health departments shall be exempt from this article.

§16-5J-8. Unlawful conduct; penalties.

It is a misdemeanor for any person to solicit, receive, accept, deliver or transmit, by mail or otherwise, material originating from the human body on behalf of any person operating a laboratory not in possession of a license under this article regardless of whether such laboratory is located in this state and, upon conviction thereof, such person shall be fined not less than $500. The provisions of this section do not apply to transactions with any person operating a laboratory located in another state, which laboratory has been issued a license or permit in conformity with the "Clinical Laboratories Improvement Act of 1967," and related statutes. Neither does this section apply to transactions with laboratories operated in this state which are exempt from the license requirements of this article.

§16-5J-9. Interpretation of article; severability.

The provisions of this article are severable and if any of its provisions shall be held unconstitutional, the decision of the court shall not affect or impair any of the remaining provisions of this article. It is hereby declared to be the legislative intent that this article would have been adopted had such unconstitutional provisions not been included herein.

§16-5J-10. Licensure of technicians; fee; rules and regulations.

(a) The director of the department of health shall promulgate rules and regulations for the licensure and certification of lab technicians and lab technologists. All such persons being so employed on the effective date of this article shall be automatically certified and exempt from this requirement: Provided, That any technologist and technician who is certified by the American medical technologists or the American society of clinical pathologists or the national certification agency for medical laboratory personnel or any federal certification program shall be considered certified.

(b) All laboratory technicians or technologists shall pay an annual license fee of $25 to the director of the department of health to cover the costs of licensure.

(c) All rules and regulations required under this section or other provisions of this article may not be filed as emergency rules until after the set of rules is approved by the Legislature.

(d) All fees and interest earned or collected by the department under this article shall be used to pay for the implementation of this article.

§16-5K-1. Legislative findings and statement of purpose.

The Legislature hereby finds and declares that early intervention services for children who are developmentally delayed is essential in helping to maximize each child's potential and is in the best interest of the state. These early intervention services will reduce future educational costs, minimize the likelihood of having to provide institutional care and enhance the capacity of families to meet the special needs of the children. In order to meet this important need, a statewide comprehensive, coordinated, interagency program of early intervention services is required for children and the families of children from birth to thirty-six months of age who are developmentally delayed. By facilitating coordination of payment for early intervention services from various public and private sources, enhancing the capacity to provide quality early intervention services, and expanding and improving existing services, the interagency program will ensure that children who are developmentally delayed will receive necessary services which are cost effective.

§16-5K-2. Definitions.

Unless the context clearly otherwise indicates, as used in this article:

(a) "Bureau" means the Bureau for Children and Families Public Health.

(b) "Council" means the Governor's Early Intervention Interagency Coordinating Council.

(c) "Department" means the Department of Health.

(d) "Early intervention services" means developmental services which:

(1) Are designed to meet the developmental needs of developmentally delayed infants and toddlers and the needs of the family related to enhancing the child's development;

(2) Are selected in collaboration with the parents;

(3) Are provided under public supervision in conformity with an individualized family service plan;

(4) Are provided either at no charge, fees based on a sliding scale, or charges to third party payers and do not restrict access or services because of a client's financial limitations;

(5) Meet the state's early intervention standards, as established by the department with the assistance of the Governor's Early Intervention Interagency Coordinating Council;

(6) Include assistive technology, audiology, audiology case management, family training, counseling and home visits, health services necessary to enable a child to benefit from other early intervention services, medical services only for diagnostic or evaluation purposes, nursing services, nutrition services, occupational therapy, physical therapy, psychological services, social work services, special instruction, speech-language pathology, vision and transportation; and

(7) Are provided by licensed or otherwise qualified personnel, including audiologists, family therapists, nurses, nutritionists, occupational therapists, orientation and mobility specialists, physical therapists, physicians, psychologists, social workers, special educators, speech-language pathologists and paraprofessionals appropriately trained and supervised.

(e) "Infants and toddlers with developmental delay" means children from birth to thirty-six months of age who need early intervention services for any of the following reasons:

(1) They are experiencing developmental delays, as measured by appropriate methods and procedures, in one or more of the following areas: Cognitive, physical, including visual and hearing, communicative, adaptive, social, language and speech, or psycho-social development or self-help skills; or

(2) They have a diagnosed physical or mental condition that has a high probability of resulting in developmental delay; or

(3) They are at risk of having substantial developmental delays if early intervention services are not provided.

§16-5K-3. Responsibilities of the Department of Health.

(a) The department is the administering agency for the development of a statewide, comprehensive, coordinated, interagency system of early intervention services.

(b) Consistent with the provisions of Public Law 99-457, as enacted by the Congress of the United States, the department has the following responsibilities:

(1) To carry out the general administration, supervision and monitoring of early intervention programs and activities;

(2) To resolve complaints regarding the requirements of Public Law 99-457;

(3) To identify and coordinate all available resources within the state from federal, state, local and private sources;

(4) To enter into formal interagency agreements with other state agencies involved in early intervention;

(5) To resolve intraagency and interagency disputes and to ensure that early intervention services are provided in a timely manner pending the resolution of such disputes; and

(6) To coordinate and implement a comprehensive system of personnel development, including the certification and credentialing of qualified personnel pursuant to federal regulations or requirements.

(c) The department may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to carry out the purposes of this article.

(d) The department and the Department of Education shall enter into a formal interagency agreement regarding early intervention services. The agreement shall define the financial responsibility of each agency, describe the transition of services to children and their families between service systems, and establish procedures for resolving disputes.

§16-5K-4. Interagency coordinating council.

(a) The Governor's Early Intervention Interagency Coordinating Council is continued. The council is composed of at least fifteen members appointed by the Governor with additional ex officio members representing specific agencies serving infants and toddlers with developmental delays.

(b) The membership of the council shall consist of the following:

(1) At least three parents of children, ages birth through six years of age, who have developmental delays;

(2) At least three persons representative of the public or private service providers;

(3) At least one member of the House of Delegates recommended by the Speaker of the House of Delegates and one member of the Senate recommended by the Senate President;

(4) At least one person from higher education involved in training individuals to provide services under this article; and

(5) A representative of each of the agencies involved in the provision of or payment for early intervention services to infants and toddlers with developmental delays and their families.

(c) The council shall meet at least quarterly and in such place as it considers necessary.

(d) The council is responsible for the following functions:

(1) To advise and assist the department in the development and implementation of early intervention policies;

(2) To assist the department in achieving the full participation of all relevant state agencies and programs;

(3) To collaborate with the Bureau for Children and Families in the coordination of early intervention services with other programs and services for children and families;

(4) To assist the department in the effective implementation of a statewide system of early intervention services;

(5) To assist the department in the resolution of disputes;

(6) To advise and assist the department in the preparation of grant applications; and

(7) To prepare and submit an annual report to the Governor, the Legislature and the United States Secretary of Education on the status of early intervention programs within the state.

§16-5K-5. Provision of early intervention services.

(a) The department may enter into contracts with public or private providers of early intervention services who meet state early intervention standards.

(b) Within available resources, as determined by the department, appropriate early intervention services shall be made available to eligible children and their families.

§16-5K-6. West Virginia Birth-to-Three Fund.

(a) There is created in the state Treasury a fund to be known as the "West Virginia Birth-to-Three Fund" that shall be an interest-bearing account established and maintained to pay costs, fees and expenses incurred, or to be incurred, for early intervention services for children who are developmentally delayed.

(b) Funds deposited into this account shall be derived from the following sources:

(1) Any appropriations by the Legislature;

(2) Fund transfers from any fund of the divisions of the Department of Health that, in whole or in part, supports early intervention services;

(3) All public funds transferred by any public agency as permitted by applicable law;

(4) Any private funds contributed, donated or bequeathed by corporations, individuals or other entities; and

(5) All proceeds from fees paid by the client or third party payers; and

(6) All interest or return on investments accruing to the fund.

(c) Moneys deposited in this fund shall be used exclusively to provide early intervention services to accomplish the purposes of this article. Expenditures of moneys deposited in this fund are to be made in accordance with appropriation by the Legislature and in accordance with article three, chapter twelve of this code and upon the fulfillment of the provisions of article two, chapter five-a of this code: Provided, That for the fiscal year ending June 30, 2003, expenditures are authorized from deposits rather than pursuant to appropriation by the Legislature.

(d) Any balance remaining in this fund at the end of any state fiscal year shall not revert to the state Treasury but shall remain in this fund and shall be used only in a manner consistent with this article.

§16-5L-1. Short title.

This article may be known and cited as the "West Virginia Long-Term Care Ombudsman Program Act."

§16-5L-2. Legislative purpose.

The Legislature recognizes that the state commission on aging, as set forth in article fourteen, chapter twenty-nine of this code, pursuant to a grant from the federal government, has established a West Virginia long-term care ombudsman program. The Legislature declares that it is the public policy of this state to encourage community contact and involvement with residents of long-term care facilities. The Legislature finds that in order to comply with the federal Older Americans Act of 1965, as amended, and to effectively assist residents of long-term care facilities in the assertion of their civil and human rights, the structure, powers and duties of the West Virginia long-term care ombudsman program shall be herein defined under this article.

§16-5L-3. Definitions.

As used in this article, unless a different meaning appears from the context:

(a) "Government agency" means any department, division, office, bureau, board, commission, council, authority, or any other agency or instrumentality created by the state or political subdivision thereof or to which the state is a party or by any county or municipality which is responsible for the regulation, visitation, inspection, or supervision of long-term care facilities or which provides services to residents or long-term care facilities;

(b) "Long-term care facility" means any nursing home, personal care home, or residential board and care home as defined in section two, article five-c of this chapter; nursing homes operated by the federal government or the state government; extended care facilities operated in connection with hospitals; and any similar institution, residence or place, or any part or unit thereof, however named, in this state which is advertised, offered, maintained or operated by the ownership or management for consideration, for the express and implied purpose of providing accommodations and care or personal assistance to one or more persons who are ill or otherwise incapacitated or are dependent upon the services of others by reasons of physical or mental impairment and who are not related within the degree of consanguinity of second cousin to the owner or manager of the institution, residence or place;

(c) "Long-term care ombudsman volunteer" or "ombudsman volunteer" means any uncompensated individual who performs the duties enumerated under section eight of this article: Provided, That the individual has received appropriate certification as set forth in section nine of this article;

(d) "Pecuniary interest" means holding a financial interest in or deriving financial benefit from the provision of long-term care, but does not include employment in the long-term care industry or in the home health care industry;

(e) "Personal assistance" means personal services, including, but not limited to, the following: Help in walking, bathing, dressing, feeding or getting in or out of bed, or supervision required because of the age or mental impairment of the resident;

(f) "Regional long-term care ombudsman" means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the state commission on aging and meets the qualifications set forth in section seven of this article;

 (g) "Resident" means an individual living in a nursing home, personal care home, residential board and care home, or any long-term care facility as defined in subsection (b) of this section, or who has lived in such a setting, or who has made application to live in such a setting: Provided, That nothing in this article may be construed to give a long-term care ombudsman the right to obtain the waiting list of a long-term care facility;

(h) "State long-term care ombudsman" means an individual who meets the qualifications of section five of this article and who is employed by the state commission on aging to implement the state long-term care ombudsman program as set forth in this article; and

(i) "Guardian" means a person lawfully invested with the power and charged with the duty of taking care of another person and managing the property and rights of another person who for some peculiarity of status or defect of age, understanding or self control is considered incapable of administering his or her own affairs, to include committees or other references under the code.

§16-5L-4. Creation of the state long-term care ombudsman program.

There is hereby created within the state commission on aging, as set forth in article fourteen, chapter twenty-nine of this code, the West Virginia long-term care ombudsman program, pursuant to the Older Americans Act of 1965, as amended.

§16-5L-5. State long-term care ombudsman; qualifications; duties.

(a) The state commission on aging shall employ a state long-term care ombudsman to effect the purposes of this article. The state long-term care ombudsman shall have at least a master's degree in gerontology, social work, health or a related field and shall have demonstrated experience in one of the following areas: (1) The field of aging; (2) health care; (3) community programs; (4) long-term care issues; (5) working with health care providers; (6) working with an involvement in volunteer programs; and (7) administrative and managerial experience. In lieu of the above educational and experience qualifications, the state long-term care ombudsman shall have a four-year degree in gerontology, social work, health or a related field, plus five years of full-time equivalent experience in gerontology, social work, health or a related field. The state long-term care ombudsman shall participate in ongoing training programs related to his or her duties or responsibilities. The state long-term care ombudsman shall not have been employed within the past two years prior to the date of his or her employment under this section by a long-term care facility, or by any association of long-term care facilities, or by any organization or corporation that directly or indirectly regulates, owns, or operates a long-term care facility.

(b) Neither the state long-term care ombudsman nor any member of his or her immediate family shall have, or have had within the two years preceding his or her employment under this section, any pecuniary interest in the provision of long-term care. For the purposes of this section, the term "immediate family" shall mean the spouse, children, natural mother, natural father, natural brothers or natural sisters of the state long-term care ombudsman.

(c) The duties of the state long-term care ombudsman shall include, but are not limited to, the following:

(1) Establishing a mandatory statewide procedure to receive, investigate, and resolve complaints filed on behalf of a resident, or filed on the state or regional long-term care ombudsman's own initiative on behalf of residents, relating to action, inaction or decisions of providers of long-term care services, or the representatives of such providers, of public agencies, or of social service agencies, which may adversely affect the health, safety, welfare and rights of such residents;

(2) Monitoring the development and implementation of federal, state and local legislation, regulations and policies with respect to long-term care facilities;

(3) Advocating for the rights of residents in long-term care facilities;

(4) Establishing a mandatory statewide training program and certification procedures for regional long-term care ombudsmen, excluding clerical staff, which shall include training in the following areas: (i) The review of medical records; (ii) regulatory requirements for long-term care facilities; (iii) confidentiality of records; (iv) techniques of complaint investigation; (v) the effects of institutionalization; and (vi) the special needs of the elderly;

(5) Establishing and maintaining a statewide uniform reporting system to collect and analyze data relating to complaints and conditions in long-term care facilities for the purpose of identifying and resolving significant problems faced by residents as a class. Such data shall be submitted to the office of health facility licensure and certification on a regular basis;

(6) Promulgating mandatory statewide rules, regulations and training related to the use of long-term care ombudsman volunteers in the program, including procedures to assure that the responsibility and authority of ombudsman volunteers shall be restricted to activities which do not involve access to confidential resident or facility records, which do not involve complaint investigation other than information gathering to ascertain the nature and facts of a complaint, and which do not involve the initiation or pursuit of legal proceedings, actions or remedies; and

(7) Other duties as mandated by the Older Americans Act of 1965, as amended.

§16-5L-6. Establishment of regional long-term care ombudsman programs.

(a) The state commission on aging shall designate and maintain regional long-term care ombudsman programs encompassing all planning and development areas of the state under the direction of the state long-term care ombudsman. Any regional long-term care ombudsman program so designated and maintained shall be a representative of the state long-term care ombudsman program.

(b) In order to be so designated, a regional long-term care ombudsman program shall meet the following requirements: (1) It shall have no pecuniary, licensing, or organizational interest with long-term care facilities or an association thereof; and (2) it shall (i) maintain a private, nonprofit status as defined under the Internal Revenue Code of 1986, or (ii) function as a local or regional government agency.

§16-5L-7. Regional long-term care ombudsmen; qualifications; duties; training; certification.

(a) Each regional long-term care ombudsman program shall employ one or more regional long-term care ombudsmen to effect the purposes of this article. The regional long-term care ombudsman shall have either: (1) At least a bachelor's degree in gerontology, social work, health, or a related field and demonstrated experience in one of the following areas: (A) The field of aging; (B) health care or social service programs; (C) community programs; or (D) long-term care issues; or (2) at least a bachelor's degree in any field and at least three years of experience in gerontology, social work, health or a related field. Experience in gerontology, social work, health or a related field may be substituted for up to two years (sixty hours) of college on a year-for-year basis. The supervising ombudsman must have at least a bachelor's degree in gerontology, social work, health or a related field and demonstrated experience in one of the following areas: (A) The field of aging; (B) health care or social service programs; (C) community programs; and (D) long-term care issues. Persons employed in a designated regional long-term care ombudsman program on the date of enactment of this article may be given a waiver from these requirements provided that within one year from the date of enactment of this article they enter into a program leading to a degree in gerontology, social work, health or a related field or complete fifty hours of continuing education units in gerontology, social work, health or a related field every two calendar year periods. The regional long-term care ombudsman shall participate in ongoing training programs related to his or her duties or responsibilities. The regional long-term care ombudsman may not have been employed within the past two years prior to the date of his or her employment under this section by any association of long-term care facilities. If a regional long-term care ombudsman has been employed within the past two years prior to the date of his or her employment under this section by a long-term care facility, or by any organization or corporation that directly or indirectly regulates, owns or operates a long-term care facility, that ombudsman may not act with the authority of a regional long-term care ombudsman in the facility of prior employment or in any other facility regulated, owned or operated by the same ownership as the facility of prior employment.

(b) Neither the regional long-term care ombudsman nor any member of his or her immediate family may have, or have had within the two years preceding his or her employment under this section, any pecuniary interest in the provision of long-term care. For the purposes of this section, the term "immediate family" shall mean the spouse, children, natural mother, natural father, natural brothers or natural sisters of the regional long-term care ombudsman.

(c) The duties of the regional long-term care ombudsman shall include, but are not limited to, the following:

(1) Regularly monitoring long-term care facilities and investigating complaints filed on behalf of a resident, or filed on the regional long-term care ombudsman's own initiative, relating to the health, safety, welfare and rights of such residents, in accordance with complaint investigation procedures developed by the state long-term ombudsman care program: Provided, That nothing in this section shall be construed as to grant a regional long-term care ombudsman the right of entry to a long-term care facility's drug rooms or to treatment rooms occupied by a resident unless prior consent has been obtained from the resident;

(2) Monitoring the development and implementation of federal, state and local laws, regulations and policies with respect to long-term care facilities;

(3) Training certified volunteers in accordance with the training and certification program developed by the state long-term care ombudsman program;

(4) Encouraging, cooperating with, and assisting the development and operation of referral services which can provide current, valid and reliable information on long-term care facilities and alternatives to institutionalization to persons in need of these services and the general public;

(5) Submitting reports as required by the state long-term care ombudsman program; and

(6) Other duties as mandated by the Older Americans Act of 1965, as amended.

(d) The state long-term care ombudsman shall develop and implement procedures for training and certification of regional long-term care ombudsmen. Regional long-term care ombudsmen who satisfactorily complete the training requirements shall be certified by the state commission on aging and shall be given identification cards which shall be presented to employees of a long-term care facility upon request. No regional long-term care ombudsman may investigate any complaint filed with the West Virginia long-term care ombudsman program unless the person has been certified by the state commission on aging. Consistent with the provisions of this article and any rules promulgated pursuant to section twenty-one, certified regional long-term ombudsmen shall be representatives of the state long-term care ombudsman program.

§16-5L-8. Long-term care ombudsman volunteers; qualifications; duties.

(a) The regional long-term care ombudsman programs shall each create and maintain a volunteer program to effect the purposes of this article, pursuant to rules promulgated by the state long-term care ombudsman and the state commission on aging.

(b) A long-term care ombudsman volunteer shall have demonstrated interest in the field of aging and long-term care issues and be able to communicate effectively orally and in writing.

(c) No long-term care ombudsman volunteer nor any member of his or her immediate family shall have, or have had within the two years preceding his or her employment under this section, any pecuniary interest in the provision of long-term care. Nor shall any long-term care ombudsman volunteer perform his or her duties in any specific facility in which an immediate family member of the long-term care ombudsman volunteer is or has been a resident or applicant of that specific facility. For the purposes of this section, the term "immediate family" shall mean the spouse, children, natural mother, natural father, natural brothers or natural sisters of the long-term care ombudsman volunteer.

(d) The long-term care ombudsman volunteer shall perform only those duties assigned by the regional long-term care ombudsman, including, but not limited to, the following:

(1) Regularly visiting and talking with residents of long-term care facilities, and inspecting all public areas of the facility;

(2) Interviewing residents, family members and employees of long-term care facilities to ascertain the nature and facts of a complaint;

(3) Preparing reports for the regional long-term care ombudsman's review or approval relating to complaint interviews and the health, safety, welfare and rights of residents of long-term care facilities;

(4) Informing residents as to the availability of ombudsman services;

(5) Establishing and maintaining a cooperative working relationship with employees of long-term care facilities;

(6) Working to establish and maintain resident and family councils to encourage interaction among residents, their families and long term care facility staff; and

(7) Performing other duties as assigned by the regional long-term care ombudsman which are not contrary to this article, to any applicable federal law, or to rules promulgated by the state long-term care ombudsman and the state commission on aging.

(e) Notwithstanding the duties described above, no ombudsman volunteer may undertake or be assigned duties involving complaint investigation activities, as defined in section ten of this article, except for information gathering to ascertain the nature and facts of a complaint for the ombudsman's review. No ombudsman volunteer, during the course of his or her volunteer service, may initiate or pursue legal proceedings, actions or remedies on behalf of a resident or long-term care ombudsman program relating to a long-term care facility, its employees, or its residents.

§16-5L-9. Long-term care ombudsman volunteer training and certification.

(a) The state long-term care ombudsman shall develop procedures for training and certification of long-term care ombudsman volunteers. The regional long-term care ombudsman shall implement certification training for all ombudsman volunteers in accordance with the procedures developed by the state long-term care ombudsman. No ombudsman volunteer shall perform any of the duties enumerated in section eight of this article prior to the completion of the training program, except as a supervised portion of that training program.

(b) Ombudsman volunteers who have satisfactorily completed the training and certification requirements shall be given identification cards valid for one year which shall be presented to employees of a long-term care facility upon request. Every year thereafter, the long-term care ombudsman volunteer shall complete at least seven hours of additional training before a new identification card is issued. Consistent with the provisions of this article and any rules and regulations promulgated pursuant to section twenty-one, certified long-term ombudsman volunteers shall be representatives of the state long-term care ombudsman program.

§16-5L-10. Investigation of complaints.

(a) Upon receipt of a complaint filed on behalf of a resident, or on his or her own initiative, a state or regional long-term care ombudsman shall investigate any act, practice, policy or procedure of any long-term care facility or government agency which affects the health, safety, welfare or rights of any resident.

(b) Investigative activities of the state or regional long-term care ombudsman shall include, but shall not be limited to: Information gathering, mediation, negotiation, informing parties of the status of the investigation, notification to any aggrieved party of alternative processes, reporting of suspected violations to a licensing or certifying agency, and the reporting of suspected criminal violations to the appropriate authorities.

(c) The state or regional long-term care ombudsman need not investigate any complaint upon determining that:

(1) The complaint is trivial, frivolous, vexatious or not made in good faith;

(2) The complaint has been too long delayed to justify present investigation;

(3) The resources available, considering the established priorities, are insufficient for an adequate investigation;

(4) The matter complained of is not within the investigatory authority of the long-term care ombudsman program; or

(5) A real or apparent conflict of interest exists and no other ombudsman is available to investigate the complaint in an impartial manner.

If a determination is made by a regional long-term care ombudsman not to investigate any complaint, then the complaint shall be referred to the state long-term care ombudsman who shall make a final decision as to whether the matter warrants further investigation.

(d) State and regional long-term care ombudsmen may institute actions on behalf of residents to obtain injunctive and declaratory relief, but not damages. In order to enable ombudsman to bring such actions, the Director of the Office of Health Facility Licensure and Certification shall either:

(1) Establish an administrative hearing process under the procedures for contested cases defined at article five, chapter twenty-nine-a of this code to be available to any state or regional ombudsmen bringing an action on behalf of a resident against a long-term care facility or governmental agency; or

(2) Ensure that state and regional ombudsmen have sufficient access to legal counsel to bring actions on behalf of residents in civil court: Provided: That nothing in this subsection shall be construed to prevent a resident of a long-term care facility from filing directly, on his or her own behalf, a suit for relief of any sort in any state or federal court.

(e) The state commission on aging and other appropriate state governmental agencies shall establish and implement cooperative agreements for receiving, processing, responding to and resolving complaints involving state governmental agencies under the provisions of this section.

§16-5L-11. Access to long-term care facilities.

(a) A state or regional long-term care ombudsman shall, with proper identification, have access to any long-term care facility for the purposes of investigations of a complaint filed pursuant to section ten of this article. The state or regional long-term care ombudsman may enter a facility at a time appropriate to the complaint. The visit may be announced in advance or be made unannounced as appropriate to the complaint under investigation. Upon entry of the facility, the state or regional long-term care ombudsman shall promptly and personally advise one of the following persons of his or her presence: (1) The administrator or acting administrator; (2) the residence director; or (3) another available supervisory agent of the facility. If entry is refused by the person in charge of said facility, the long-term care ombudsman may apply to the magistrate court of the county in which the facility is located for a warrant authorizing entry, and the court shall issue an appropriate warrant if it finds good cause therefor.

(b) For activities other than those specifically related to the investigation of a complaint, a state or regional long-term care ombudsman, upon proper identification, shall have access to any long-term care facility between the hours of 8:00 a.m. and 8:00 p.m. in order to:

(1) Visit, talk with, and make ombudsman and social services available to all residents;

(2) Inform residents of their rights and entitlements, and their corresponding obligations, under applicable federal and state laws by means of distribution of educational materials and discussion in groups and with individual residents;

(3) Assist residents in asserting their legal rights regarding claims for public assistance, medical assistance, and other public entitlements; and

(4) Supervise, direct or assist a long-term care ombudsman volunteer in the performance of his or her assigned duties.

Access to long-term care facilities under this section shall be deemed to include the right to private communication with residents.

(c) A state or regional long-term care ombudsman who has access to a facility under this section shall not enter the living area of a resident without identifying himself or herself to the resident. After identifying himself or herself, an ombudsman shall be permitted to enter the living area of a resident unless that resident communicates on that particular occasion the resident's desire to prevent the ombudsman from entering. A resident shall have the right to terminate, at any time, any visit by a representative of the ombudsman program who has access under this section or any other applicable section of this article.

(d) Access to a facility pursuant to subsection (a) or (b) of this section includes the right to tour the facility unescorted: Provided, That individual residents may terminate at any time any communication by an ombudsman having access under this section and that nothing in this section shall be construed as to grant a long-term care volunteer ombudsman the right of entry to the drug rooms and treatment rooms of a long-term care facility.

§16-5L-12. Access to records.

(a) The long-term care ombudsman is allowed access to any resident's records, including medical records, reasonably necessary to any investigation carried out pursuant to the provisions of section ten of this article, under the following conditions:

(1) If the resident is competent and has the ability to write, access may only be obtained by the written consent of the resident;

(2) If the resident is competent but unable to write, oral consent may be given in the presence of a third party who shall witness the resident's consent in writing;

(3) If the resident is under a guardianship committee as set forth in article eleven, chapter twenty-seven of this code or has granted a medical power of attorney which is in effect as set forth in article thirty-a, chapter sixteen of this code, or granted any other power of attorney which is in effect, access may only be obtained by the written consent of the guardian or attorney in fact, unless the existence of guardianship, medical power of attorney or attorney in fact is unknown to the long-term care ombudsman upon investigation and to the long-term care facility, or unless the guardian or attorney in fact cannot be reached through normal communications channels within five working days;

(4) If the resident is unable to express written or oral consent and there is no guardian or attorney in fact or the notification of the guardian or attorney in fact is not achieved for the reasons set forth in subsection (3) of this section, or if the resident is deceased, inspection of records may be made by the ombudsman.

(b) The state or regional long-term care ombudsman is allowed access to all records of any long-term care facility that are reasonably necessary for the investigation of a complaint under section ten of this article, including, but not limited to, facility incident reports, dietary records, policies and procedures of the facility that the facility is required to maintain under federal or state law, admission agreements, staffing schedules, any document depicting the actual staffing pattern of the facility and resident council and grievance committee minutes.

§16-5L-13. Subpoena powers.

(a) The state long-term care ombudsman, or the designee of the state long-term care ombudsman, may, in the course of any investigation carried out pursuant to section ten of this article:

(1) Apply to the circuit court of the appropriate county or the circuit court of the county of Kanawha for the issuance of a subpoena to compel at a specific time and place, by subpoena, the appearance, before a person authorized to administer oaths, the sworn testimony of any person whom the state or regional long-term care ombudsman reasonably believes may be able to give information relating to a matter under investigation; or

(2) Apply to the circuit court of the appropriate county or the circuit court of the county of Kanawha for the issuance of a subpoena duces tecum to compel any person to produce at a specific time and place, before a person authorized to administer oaths, any documents, books, records, papers, objects or other evidence which the state or regional long-term care ombudsman reasonably believes may relate to a matter under investigation.

(b) No subpoena or subpoena duces tecum applied for by the state ombudsman or designee pursuant to subsection (a) of this section shall be issued until a circuit court judge in term or vacation thereof has personally reviewed the application and accompanying affidavits and approved, by a signed order entered by the judge, the issuance of the subpoena or subpoena duces tecum. Subpoenas or subpoenas duces tecum applied for pursuant to this section may be issued on an ex parte basis following review and approval of the application by the judge in term or vacation thereof.

(c) The Attorney General shall, upon request, provide legal counsel and services to the long-term care ombudsman program in all administrative proceedings and in all proceedings in any circuit court and the West Virginia Supreme Court of Appeals. The prosecuting attorney of any county shall provide without compensation legal counsel and services in criminal actions to the long-term care ombudsman program in circuit court proceedings in that county.

§16-5L-14. Cooperation among government departments or agencies.

(a) The state or regional long-term care ombudsman shall have access to publicly disclosable records of any state government department, agency, or office reasonably necessary to any investigation carried out pursuant to section ten of this article. The regional long-term care ombudsman shall be notified of and be allowed to observe any survey conducted by a government agency affecting the health, safety, welfare or rights of residents of a long-term facility.

(b) The state long-term care ombudsman shall develop referral procedures to refer any complaint to any appropriate state government department, agency or office. The agency shall acknowledge receipt and disposition within thirty calendar days on any complaint referred to it by a state or regional long-term care ombudsman.

(c) When abuse, neglect or exploitation of a resident of a long-term care facility is suspected, the state or regional long-term care ombudsman shall make a referral to the office of adult protective services and to the office of health facility licensure and certification. The state or regional long-term care ombudsman shall coordinate with the office of adult protective services and the office of health facility licensure and certification on any investigation of suspected abuse, neglect or exploitation undertaken by those offices under the provisions of this subsection.

(d) Any state government department, agency, or office which responds to a complaint referred to it by a state or regional long-term care ombudsman shall forward to the long-term care ombudsman copies of publicly disclosable inspection reports and plans of correction, and notices of any citations and sanctions levied against the long-term care facility identified in the complaint.

(e) The state or regional long-term care ombudsman shall seek to establish coordination with programs which provide legal services for the elderly, including, but not limited to, programs funded by the federal legal services corporation or under the Older Americans Act of 1965, as amended.

§16-5L-15. Confidentiality of investigations.

(a) Information relating to any investigation of a complaint pursuant to section ten of this article that contains the identity of the complainant or resident shall remain confidential except:

(1) Where disclosure is authorized in writing by the complainant, or resident or the guardian, committee, attorney in fact or representative of the resident;

(2) Where disclosure is necessary to the office of adult protective services in order for such office to determine the appropriateness of initiating an investigation regarding potential abuse, neglect or emergency circumstances as defined in article six, chapter nine of this code;

(3) Where disclosure is necessary to the office of health facility licensure and certification in order for such office to determine the appropriateness of initiating an investigation to determine facility compliance with applicable rules of licensure and/or certification; or

(4) Upon order of any appropriate county circuit court after the judge in term or vacation thereof has conducted a hearing following adequate notice to all parties and rendered a determination as the interests of justice may require.

(b) Notwithstanding any other section within this article, all information, records and reports received by or developed by a state or regional long-term care ombudsman which relate to a resident of a facility, including written material identifying a resident, are confidential and are not subject to the provisions of chapter twenty-nine-b of this code, and shall not be disclosed or released by the long-term care ombudsman, except under the circumstances enumerated in this section.

(c) Nothing in subsection (a) or (b) of this section shall be construed to prohibit the preparation and submission by any state or regional long-term ombudsman of statistical data and reports, as required to implement the provisions of this article or any applicable federal law, exclusive of any material that identifies any resident or complainant.

(d) The executive director of the state commission on aging shall have access to the records and files of the long-term care ombudsman program to verify its effectiveness and quality where the identity of any complainant or resident is not disclosed.

§16-5L-16. Limitations on liability.

(a) An ombudsman participating in an investigation carried out pursuant to section ten of this article and long-term care ombudsman volunteers who are performing their duties pursuant to section eight of this article shall be immune from any civil liability that otherwise might result by reason of his or her participation in the investigation as long as such participation is not violative of any applicable law, rule or regulation, done within the scope of their employment and done in good faith.

(b) If an act or omission by any long-term care ombudsman, or by any facility employee acting in good faith at the direction of a long-term care ombudsman pursuant to a specific resident complaint, causes a resident's rights to be violated, no long-term care facility, its owners, administrators, officers, director, agents, consultants, employees or any member of management shall be held civilly liable as a result of said act or omission.

§16-5L-17. Availability of legal counsel.

The state commission on aging shall establish and maintain procedures to ensure that:

(a) Adequate legal counsel is available to the long-term care ombudsman program for advice, consultation and representation as necessary for any state or regional long-term care ombudsman or ombudsman volunteer in connection with the performance of the ombudsman's or ombudsman volunteer's official duties; and

(b) The long-term care ombudsman program has the ability to pursue administrative, legal and other appropriate remedies on behalf of residents of long-term care facilities.

§16-5L-18. Willful interference; retaliation; penalties.

(a) Any individual who willfully interferes with or impedes a state or regional long-term care ombudsman or ombudsman volunteer in the performance of his or her official duties shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100 or imprisoned in the county jail for not more than ninety days, or both fined and imprisoned.

(b) Any individual who institutes or commits a discriminatory, disciplinary, retaliatory or reprisal action against any officer or employee of a long-term care facility or government department or agency, against any resident of a long-term care facility or against any guardian, attorney in fact or against any family member of any resident of a long-term care facility for having filed a complaint with or provided information in good faith to a state or regional long-term ombudsman or ombudsman volunteer to aid the long-term care ombudsman or ombudsman volunteer in carrying out the duties pursuant to this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100, or imprisoned in the county jail for not more than ninety days, or both fined and imprisoned.

(c) Any individual violating the provisions of subsection (a) or (b) of this section shall, for the second or any subsequent offense under either of these subsections, be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $250, or imprisoned in the county jail for not more than ninety days, or both fined and imprisoned. Each day of a continuing violation after conviction shall be considered a separate offense.

(d) There shall be a rebuttable presumption in any civil action that any reprisal action, as defined below, within ninety days of the incident, is discriminatory, disciplinary or retaliatory in violation of the public policy of this state. For the purpose of this section, the term "reprisal action" refers to action taken by the entity involved in a complaint or report against the person making the complaint or report, or the person with respect to whom the complaint or report was made because of the complaint or report, and includes, but is not limited to, the following:

(1) Discharge or transfer from a long-term care facility;

(2) Termination of service;

(3) Restriction or prohibition of access to the long-term care facility or its residents;

(4) Discharge from or termination of employment;

(5) Demotion or reduction in remuneration for services;

(6) Any restriction of rights affecting the person's ability to perform his or her employment duties or responsibilities or affecting the person's health, safety or welfare; or

(7) Any restriction against a state or regional long-term care ombudsman or ombudsman volunteer which impedes the carrying out of duties pursuant to this article.

(e) Nothing in this section shall be construed as to infringe upon the rights of an employer to supervise, discipline or terminate an employee for other reasons.

§16-5L-19. Facility posting of long-term care ombudsman program information.

Every long-term care facility in this state shall provide each resident with a copy and shall post in a conspicuous location in at least ten-point type a notice of information on the long-term care ombudsman program. Such notice shall include: (1) The name, address and telephone number of the designated long-term care ombudsman program serving the region in which the facility is located; (2) a brief description of the services provided by the long-term care ombudsman program; and (3) a statement as to the penalties for willful interference and retaliation as provided in section eighteen of this article. The form and wording of the notice shall be approved by the state long-term care ombudsman program.

§16-5L-20. Funding for long-term care ombudsman programs.

The state long-term care ombudsman program shall receive such funds as are appropriated pursuant to the Older Americans Act of 1965, as amended, for the operation of the state long-term care ombudsman program, and shall receive such funds as are appropriated by the Legislature for the operation of the program.

The regional long-term care ombudsman program shall receive such funds as are appropriated by the area agencies on aging pursuant to the Older Americans Act of 1965, as amended.

Any long-term care ombudsman program may solicit and receive funds, gifts and contributions to support the operation of the program. No program shall solicit or receive any funds, gifts or contributions where the solicitation or receipt would jeopardize the independence and objectivity of the program.

§16-5L-21. Promulgation of rules.

Pursuant to chapter twenty-nine-a of this code, the state long-term care ombudsman and the state commission on aging shall promulgate rules to effectuate the purposes and provisions of this article.

§16-5L-22. Severability.

If any provision of this article, or the application thereof to any provision or circumstance, shall be held unconstitutional or otherwise invalid, such invalidity or unconstitutionality shall not affect the provisions or application of this article which can be given effect without the unconstitutional or invalid provisions of application, and to this end the provisions of this article are declared to be severable.

§16-5M-1. Short title.

This article may be known and cited as the "West Virginia Osteoporosis Prevention Education Act."

§16-5M-2. Responsibilities of bureau of public health.

(a) The bureau of public health shall establish strategies to promote and maintain an osteoporosis prevention education program in order to raise public awareness, to educate consumers and to educate and train health professionals, teachers and human service providers, to include the following components:

(1) The bureau shall develop strategies for raising public awareness of the causes and nature of osteoporosis, personal risk factors, the value of prevention and early detection and options for diagnosing and treating the disease that include, but are not limited to, the following:

(A) Community forums;

(B)Health information and risk factor assessment at public events;

(C) Targeting at-risk populations;

(D) Providing reliable information to policymakers; and

(E) Distributing information through county health departments, schools, area agencies on aging, employer wellness programs, physicians, hospitals, health maintenance organizations, women's groups, nonprofit organizations, community-based organizations and departmental offices;

(2) The bureau shall develop strategies for educating consumers about risk factors, diet and exercise, diagnostic procedures and their indications for use, risks and benefits of drug therapies currently approved by the United States Food and Drug Administration, environmental safety and injury prevention and the availability of self-help diagnostic, treatment and rehabilitation services;

(3) The bureau may develop strategies for educating physicians and health professionals and training community service providers on the most up-to-date, accurate scientific and medical information on osteoporosis prevention, diagnosis and treatment, therapeutic decision-making, including guidelines for detecting and treating the disease in special populations, risks and benefits of medications and research advances;

(4) The bureau may conduct a needs assessment to identify:

(A) Research being conducted within the state;

(B) Available up-to-date technical assistance and educational materials and programs nationwide;

(C) The level of public and professional awareness about osteoporosis;

(D) The needs of osteoporosis patients, their families and caregivers;

(E) The needs of health care providers, including physicians, nurses, managed care organizations and other health care providers;

(F) The services available to the osteoporosis patient;

(G) The existence of osteoporosis treatment programs;

(H) The existence of osteoporosis support groups;

(I) The existence of rehabilitation services; and

(J) The number and location of bone density testing equipment; and

(5) The bureau may replicate and use successful osteoporosis programs and enter into contracts and purchase materials or services from organizations with appropriate expertise and knowledge of osteoporosis.

(b) Based on the needs assessment conducted pursuant to this section, the bureau may develop and maintain a resource guide to include osteoporosis related services. This guide shall include a description of diagnostic testing procedures, appropriate indications for their use, drug therapies currently approved by the United States Food and Drug Administration, and a cautionary statement about the current status of osteoporosis research, prevention and treatment. The statement shall also indicate that the bureau does not license, certify, or in any way approve osteoporosis programs or centers in the state.

(c) The bureau may promulgate rules in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to implement the provisions of this article.

(d) Nothing in this article may be construed or interpreted to mean that osteoporosis treatment or osteoporosis education are required to be provided by the bureau or the council created in section three of this article. Nothing contained in this article may be construed to mandate funding for osteoporosis education or any of the programs contained in this article or to require any appropriation by the Legislature.

§16-5M-3. Interagency council on osteoporosis.

(a) There is hereby established the interagency council on osteoporosis. The director of public health shall chair the council. The council shall have representatives from appropriate state departments and agencies including, but not limited to, the entities with responsibility for aging, health care reform implementation, education, public welfare and women's programs.

(b) The council shall:

(1) Coordinate osteoporosis programs conducted by or through the bureau of public health;

(2) Establish a mechanism for sharing information on osteoporosis among all officials and employees involved in carrying out osteoporosis-related programs;

(3) Review and coordinate the most promising areas of education, prevention and treatment concerning osteoporosis;

(4) Assist the bureau of public health and other offices in developing and coordinating plans for education and health promotion on osteoporosis;

(5) Establish mechanisms to use the results of research concerning osteoporosis in the development of relevant policies and programs; and

(6) Prepare a report that describes educational initiatives on osteoporosis and transmit the report to the Legislature and the Governor and make the report available to the public.

(c) The council shall establish and coordinate the advisory panel on osteoporosis which will provide nongovernmental input regarding the program. Membership shall include, but is not limited to, persons with osteoporosis, public health educators, osteoporosis experts, providers of osteoporosis health care, persons knowledgeable in health promotion and education and representatives of national osteoporosis organizations or their state and regional affiliates.

§16-5N-1. Purpose.

It is the policy of this state to encourage and promote the development and utilization of quality residential communities for persons who desire to live independently in an apartment, who are or may be dependent upon the services of others by reason of physical or mental impairment, and who may require limited and intermittent nursing care and who are capable of self-preservation and are not bedfast. Individuals may not be disqualified for residency solely because they qualify for or receive services coordinated by a licensed hospice. This care and treatment requires a living environment for these persons which, to the extent practicable, approximates a normal home environment. To this end, it is the policy of this state to encourage and promote the development and maintenance of residential care communities.

The provisions of this article are remedial and shall be liberally construed to effectuate its purposes and intents. This article is intended to apply only to residential communities in which apartments are rented on a month-to-month basis. All residential care community rental contracts shall specify in bold-faced type, under the conspicuous caption "NOTICE TO RESIDENT", that residents of the residential community must be capable of self-preservation, or substantially similar words clearly conveying the same meaning. This article may not be construed to require that any person be required to vacate any property in which that person has an ownership or a leasehold interest, except for a month-to-month tenancy, because that person is disabled and incapable of self-preservation. Nothing in this article is intended to supersede the provisions of article eleven-a, chapter five of this code.

§16-5N-2. Definitions.

(a) As used in this article, unless a different meaning appears from the context:

(1) “Capable of self-preservation” means that a person is, at a minimum, physically capable of removing himself or herself from situations involving imminent danger such as fire;

(2) “Deficiency” means a statement of the rule and the fact that compliance has not been established and the reasons therefor;

(3) “Department” means the Department of Health and Human Resources;

(4) “Director” means the director of the Office of Health Facility Licensure and Certification;

(5) “Division” means the Office of Health Facility Licensure and Certification;

(6) “Limited and intermittent nursing care” means direct hands-on nursing care of a resident who needs no more than two hours of nursing care per day for a period of time no longer than ninety consecutive days per episode, which care may be provided only when the need for it meets these requirements: The resident requests that he or she remain in the residential care community; the resident is advised of the availability of other specialized health care facilities to treat his or her condition; and the need for care results from a medical pathology or the normal aging process. Limited and intermittent nursing care may be provided only by or under the supervision of a registered professional nurse and in accordance with legislative rules proposed by the secretary;

(7) “Nursing care” means those procedures commonly employed in providing for the physical, emotional and rehabilitation needs of the ill or otherwise incapacitated and which require technical skills and knowledge beyond those that untrained persons possess, including, irrigations, catheterizations, special procedures that contribute to rehabilitation and administration of medication by any method involving a level of complexity and skill not possessed by untrained persons;

(8) “Person” means a natural person and every form of organization, whether incorporated or unincorporated, including partnerships, corporations, trusts, associations and political subdivisions of the state;

(9) “Personal assistance” means services of a personal nature, including help in walking, bathing, dressing, toileting, getting in or out of bed and supervision that is required because of the age or mental impairment of a resident;

(10) “Resident” means an individual who lives in a residential care community for the purpose of receiving personal assistance or limited and intermittent nursing services from the community;

(11) “Residential care community” means any group of seventeen or more residential apartments, however named, which are part of a larger independent living community and which are advertised, offered, maintained or operated by an owner or manager, regardless of consideration or the absence thereof, for the express or implied purpose of providing residential accommodations, personal assistance and supervision on a monthly basis to seventeen or more persons who are or may be dependent upon the services of others by reason of physical or mental impairment or who may require limited and intermittent nursing care but who are capable of self-preservation and are not bedfast. Individuals may not be disqualified for residency solely because they qualify for or receive services coordinated by a licensed hospice. Each apartment in a residential care community shall be at least three hundred square feet in size, have doors capable of being locked and contain at least: One bedroom; one kitchenette that includes a sink and a refrigerator; and one full bathroom that includes a bathing area, toilet and sink. Services utilizing equipment which requires auxiliary electrical power in the event of a power failure may not be used unless the residential care community has a backup power generator. Nothing contained in this article applies to hospitals, as defined under §16-5B-1, state institutions, as defined under §27-1-6, residential care communities operated as continuing care retirement communities or housing programs operated under rules of the federal department of housing and urban development and/or the office of rural economic development, residential care communities operated by the federal government or the state government, institutions operated for the treatment and care of alcoholic patients, offices of physicians, hotels, boarding homes or other similar places that furnish only room and board, or to homes or asylums operated by fraternal orders pursuant to §35-3-1 of this code;

(12) “Secretary” means the Secretary of the Department of Health and Human Resources or his or her designee; and

(13) “Substantial compliance” means a level of compliance with the rules promulgated hereunder that identified deficiencies pose a risk to resident health or safety no greater than a potential for causing minimal harm.

(b) The secretary may by rule define terms pertinent to this article which are not defined.

§16-5N-3. Powers, duties, and rights of director.

In the administration of this article, the director may:

(1) Enforce rules and standards for residential care communities as adopted, proposed, amended, or modified by the secretary;

(2) Exercise all powers granted herein relating to the issuance, suspension, and revocation of licenses of residential care communities;

(3) Enforce rules governing the qualification of applicants for residential care community licenses, including, but not limited to, educational, financial, personal, and ethical requirements, as adopted, proposed, amended, or modified by the secretary;

(4) Receive and disburse federal funds and to take any lawful action that is necessary or appropriate to comply with the requirements and conditions for the receipt or expenditure of federal funds;

(5) Receive and disburse funds appropriated by the Legislature to the division for any authorized purpose;

(6) Receive and disburse funds obtained by the division by way of gift, grant, donation, bequest, or devise, according to the terms thereof, funds derived from the division’s operation, and funds from any other source, no matter how derived, for any authorized purpose;

(7) Negotiate and enter into contracts, and to execute all instruments necessary or convenient in carrying out the functions and duties of the position of director; and all of these contracts, agreements, and instruments shall be executed by the director;

(8) Appoint officers, agents, employees, and other personnel and establish the duties and fix the compensation thereof;

(9) Offer and sponsor education and training programs for residential care communities’ administrative, managerial, and operations personnel;

(10) Undertake survey, research, and planning projects and programs relating to the administration and operation of residential care communities and to the health, care, treatment, and service in general of residents of these communities;

(11) Establish by legislative rule in accordance with §16-5N-10 of this code and to assess reasonable civil penalties for violations of residential care community standards;

(12) Inspect any residential care community and any of the records maintained therein, subject to the provisions of §16-5N-10 of this code;

(13) Establish legislative rules in accordance with §29A-3-1 et seq. of this code, setting forth procedures for implementing the provisions of this article, including informal conferences, investigations and hearings, and for enforcing compliance with the provisions of this article and the rules promulgated hereunder;

(14) Subpoena witnesses and documents, administer oaths and affirmations, and examine witnesses. Upon the failure of any person without lawful excuse to obey a subpoena to give testimony and upon reasonable notice to all persons affected thereby, the director may apply to the circuit court of the county in which the hearing is to be held or to the circuit court of Kanawha County for an order compelling compliance;

(15) Make a complaint or cause proceedings to be instituted against any person or persons for the violation of the provisions of this article or of the rules promulgated hereunder. An action may be taken by the director in the absence of concurrence or participation by the prosecuting attorney of the county in which the proceedings are instituted. The circuit court of Kanawha County or the circuit court of the county in which the violation has occurred has jurisdiction in any civil enforcement action brought pursuant to this article and may order equitable relief. In these cases, the court may not require that a bond be posted, nor may the director or any person acting under his or her authority be required to give security for costs;

(16) Delegate authority to his or her employees and agents in the performance of any power or duty granted in this article, except the issuance of final decisions in any adjudicatory matter; and

(17) Make available at all times online access through the Office of Health Facility Licensure and Certification website the following information. The online information shall describe the residential care community licensing and investigatory activities of the division. The online information shall include a list of all residential care communities and the following information: Whether the residential care communities are proprietary or nonproprietary; the name of the administrator or administrators; the total number of beds; license type; license number; license expiration date; health investigations information and reports; life safety investigations information and reports; and whether those residential care communities listed accept Medicare or Medicaid residents.

§16-5N-4. Administrative and inspection staff.

The director may, at any time he or she considers necessary, employ administrative employees, inspectors or other persons to properly implement the provisions of this article. Employees of the division shall be members of the state civil service system and shall enforce the provisions of this article and the rules promulgated hereunder. In discharging their official duties, employees of the division have the right of entry into any place maintained as a residential care community.

§16-5N-5. Rules; minimum standards for residential care communities.

(a) The secretary shall, by July 1, 1998, propose all rules that may be necessary or proper to implement or effectuate the purposes and intent of this article and to enable the director to exercise the powers and perform the duties conferred herein. All rules authorized or required pursuant to this article shall be proposed by the secretary and promulgated in accordance with the provisions governing legislative rules, contained in article three, chapter twenty-nine-a of this code.

(b) The secretary shall propose rules establishing minimum standards for the operation of residential care communities, including, but not limited to, the following:

(1) Administrative policies, including: (i) An affirmative statement of the right of access to residential care communities by members of recognized community organizations and community legal services programs whose purposes include rendering assistance without charge to residents, consistent with the right of residents to privacy; and (ii) a statement of the rights and responsibilities of residents;

(2) Minimum numbers and qualifications of residential care community personnel according to the size, classification and health care needs of the residential care community;

(3) Safety requirements, except for those fire and life safety requirements under the jurisdiction of the state Fire Marshal;

(4) Sanitation requirements;

(5) Protective and personal services required to be provided;

(6) Dietary services required to be provided;

(7) Maintenance of health records, including confidentiality;

(8) Social and recreational activities required to be made available;

(9) Physical facilities;

(10) Requirements related to limited and intermittent nursing care;

(11) Visitation privileges governing access to a resident by immediate family or other relatives of the resident and by other persons who are visiting with the consent of the resident; and

(12) Other items or considerations that the secretary considers appropriate to ensure the health, safety and welfare of residents of residential care communities.

(c) The secretary shall propose rules that include detailed specifications for each category of standards required under subsections (b) and (d) of this section, and shall classify these standards as follows:

(1) Class I standards, the violation of which presents either an imminent danger to the health, safety or welfare of a resident or a substantial probability that death or serious physical harm may result;

(2) Class II standards, the violation of which directly implicates the health, safety or welfare of a resident, but which does not present imminent danger thereto; and

(3) Class III standards, the violation of which has an indirect or potential impact on the health, safety or welfare of any resident.

(d) A residential care community shall attain substantial compliance in every category of standard enumerated in this section in order to be considered as being in substantial compliance with the requirements of this article and the rules promulgated hereunder.

(e) Until such time as the secretary proposes rules governing residential care communities under this section, existing rules governing residential board and care homes shall apply to residential care communities and shall be construed so as to conform with the provisions of this article in their application to residential care communities: Provided, That to the extent any provisions of the rule governing residential board and care homes conflict with the provisions of this article, the provisions of this article shall govern.

§16-5N-6. License required; application; fees; duration; renewal.

No person may establish, operate, maintain, offer or advertise a residential care community within this state unless he or she first obtains a license therefor as provided in this article, which license remains unsuspended, unrevoked and unexpired. No public official or employee may place any person in, or recommend that any person be placed in, or directly or indirectly cause any person to be placed in, any residential care community which is being operated without a valid license from the director. The procedure for obtaining a license is as follows:

(a) The applicant shall submit an application to the director on a form prescribed by the director, containing information as may be necessary to show that the applicant is in compliance with the standards for residential care communities as established by this article and the rules promulgated hereunder. The application and any exhibits thereto shall provide the following information:

(1) The name and address of the applicant;

(2) The name, address and principal occupation: (i) Of each person who, as a stockholder or otherwise, has a proprietary interest of ten percent or more in the applicant; (ii) of each officer and director of a corporate applicant; (iii) of each trustee and beneficiary of an applicant which is a trust; and (iv) where a corporation has a proprietary interest of twenty-five percent or more in an applicant, the name, address and principal occupation of each officer and director of the corporation;

(3) The name and address of the owner of the premises of the residential care community or proposed residential care community, if different from the applicant, and if so, the name and address: (i) Of each person who, as a stockholder or otherwise, has a proprietary interest of ten percent or more in the owner of the premises; (ii) of each officer and director of a corporate applicant; (iii) of each trustee and beneficiary of the owner if it is a trust; and (iv) where a corporation has a proprietary interest of twenty-five percent or more in the owner, the name and address of each officer and director of the corporation;

(4) Where the applicant is the lessee or the assignee of the residential care community or the premises of the proposed residential care community, a signed copy of the lease and any assignment thereof;

(5) The name and address of the residential care community or the premises of the proposed residential care community;

(6) The proposed number of apartments in the residential care community;

(7) (A) An organizational plan for the residential care community indicating the number of persons employed or to be employed, and the positions and duties of all employees; (B) the name and address of the individual who is to serve as administrator; and (C) evidence of compliance with applicable laws and rules governing zoning, building, safety, fire prevention and sanitation, as the director may require; and

(8) Additional information as the director may require.

(b) Upon receipt and review of an application for license made pursuant to subdivision (a) of this section and inspection of the applicant pursuant to section ten of this article, the director shall issue a license if he or she finds:

(1) That an applicant which is an individual and every partner, trustee, officer, director and person with a controlling interest of an applicant which is not an individual, is a person responsible and suitable to operate or to direct or participate in the operation of a residential care community by virtue of financial capacity, appropriate business or professional experience, a record of compliance with lawful orders of the department (if any) and a history of nonrevocation of a license during the five years immediately preceding the application;

(2) That the residential care community is under the supervision of an administrator qualified for that position by training and experience;

(3) That the residential care community is in substantial compliance with standards established pursuant to section five of this article, and other requirements as the secretary may establish by rule under this article.

Any license granted by the director shall state the maximum number of apartments for which it is granted, the date of issuance and the date of expiration. Residential care community licenses shall be issued for a period not to exceed one year: Provided, That any license which is unexpired, for which timely application for renewal has been made, together with payment of the proper fee, as required by the provisions of this article and the rules promulgated hereunder, continues in effect until: (i) One year after the original expiration date of the license; (ii) the date that the license is revoked or suspended pursuant to the provisions of this article; or (iii) the date of issuance of a new license, whichever date first occurs. Each license issued is only for the premises and applicant named in the application and may not be transferred or assigned: Provided, however, That if the ownership of a residential care community with an unexpired license is transferred, the filing of an application for a license with the director by the new owner shall have the effect of licensing the operation of the residential care community under the new owner for a period not to exceed three months. Every residential care community license shall be displayed in a conspicuous place at the facility for which it is issued so as to be accessible to and in plain view of residents and visitors.

(c) An original license may be renewed upon the timely filing of an application therefor, accompanied by the required fee and contingent upon the licensee's submission of evidence satisfactorily demonstrating compliance with the provisions of this article and the rules promulgated hereunder together with the following:

(1) A balance sheet as of the end of the residential care community's fiscal year, setting forth its assets and liabilities as of that date, including all capital, surplus, reserve, depreciation and similar accounts;

(2) A statement of operations of the residential care community as of the end of its fiscal year, setting forth all revenues, expenses, taxes, extraordinary items and other credits or charges; and

(3) A statement of any changes in the name, address, management or ownership information on file with the director.

(d) In the case of an application for license renewal, if all the requirements of section five of this article are not met, the director may issue a provisional license, provided that care given in the residential care community is adequate for resident needs and the residential care community has demonstrated improvement and evidences potential for substantial compliance during the term of the provisional license: Provided, That a provisional license is effective for a period not to exceed one year, may not be renewed, and may not be issued to any residential care community with uncorrected violations of any Class I standard, as defined in subsection (c), section five of this article.

(e) A nonrefundable application fee in the amount of $75 for an original residential care community license shall be paid at the time an application for license is made. The average cost of all direct costs for initial licensure inspections of all residential care communities for the preceding year shall be assessed against and paid by the applicant to the director before an initial or amended license may be issued. The fee for license renewal shall be computed at the rate of $4 per apartment in the community per year: Provided, That the rate per apartment may be assessed against applicants for whom a license is issued for a period of less than one year. The director may annually adjust licensure fees for inflation, based upon the consumer price index. All license fees are due and payable to the director, annually, in the manner set forth in the rules promulgated hereunder. The director shall retain each application and licensure fee pending final action on the application. All fees received by the director under the provisions of this article shall be deposited in accordance with section thirteen, article one of this chapter.

§16-5N-7. Cost disclosure; residents' funds; nursing care; fire code.

(a) Each residential care community shall disclose in writing to all prospective residents a complete and accurate list of all costs which may be incurred by them as residents of the community. Residents may not be held liable for any cost that was not disclosed.

(b) Residential care communities may not manage the personal finances or funds of its residents.

(c) A residential care community may be required to have registered nurses on its staff to the extent that it provides limited and intermittent nursing care.

(d) Residential care communities shall comply with the applicable provisions of the current edition of the life safety code as promulgated by the national fire protection association and adopted by the state Fire Commission.

§16-5N-8. Investigation of complaints.

The secretary shall by rule establish procedures for the prompt investigation of all complaints of alleged violations of applicable requirements of state law or rules by residential care communities, except those complaints that the director determines are without any reasonable basis or are made with the sole intention to willfully harass a licensee. These procedures shall include provisions for ensuring the confidentiality of the complainant and of any other person named in the complaint, and for promptly informing the complainant and the residential care community involved of the results of the investigation.

If, after its investigation, the director determines that the complaint has merit, the director shall take appropriate disciplinary action and shall advise any injured party of the possibility of a civil remedy under this article.

No residential care community may discharge or in any manner discriminate or retaliate against any employee or resident for filing a complaint or participating in any proceeding provided for in this article. Violation of this prohibition by any residential care community constitutes grounds for the suspension or revocation of its license as provided in section eleven of this article. Any type of adverse action taken by a residential care community against a resident who has submitted a complaint to the director or upon whose behalf a complaint has been submitted or who has instituted any proceeding under this article, if taken within one hundred twenty days of the filing of the complaint or the institution of the proceeding, shall raise a rebuttable presumption that the adverse action was taken in retaliation for filing the complaint or instituting the proceeding.

§16-5N-9. Inspections.

The director and any duly designated employee or agent thereof is authorized to enter upon and into the premises of any residential care community for which a license has been issued, for which an application for license has been filed, or which the director has reason to believe is being operated or maintained as a residential care community without a license. If entry is refused by the owner or person in charge of the residential care community, the director shall apply to the circuit court of the county in which the residential care community is located or the circuit court of Kanawha County for an order authorizing inspection, and the court shall issue an appropriate order if it finds good cause for inspection.

The director, by and through his or her agents or employees, shall conduct at least one inspection of a residential care community before issuing a license to it and shall conduct periodic unannounced inspections thereafter to determine if it is in compliance with all applicable statutory requirements and rules. All residential care communities shall comply with applicable rules of the state Fire Commission. The State Fire Marshal, by and through his or her agents or employees, shall make all fire, safety and similar inspections of residential care communities. The director may provide for other inspections he or she considers necessary to effectuate the intent and purpose of this article. If the director determines upon investigation that a complaint is substantiated and that an immediate and serious threat to health or safety exists at a residential care community, he or she may invoke any remedy available pursuant to section eleven of this article. Any residential care community aggrieved by a determination or assessment made pursuant to this section shall have the right to an administrative appeal as set forth in section twelve of this article.

§16-5N-10. Reports of inspections; plans of correction; assessment of penalties, fees and costs; use of funds derived therefrom; hearings.

(a) Reports of all inspections made pursuant to section nine of this article shall be in writing and filed with the director, and shall list all deficiencies in the residential care community's compliance with the provisions of this article and the rules promulgated hereunder. The director shall send a copy of the report to the residential care community and shall specify a time within which the residential care community shall submit a plan for correction of any listed deficiencies, which plan shall be approved, rejected or modified by the director. Inspectors shall allow audio taping of the exit conference that follows a licensure or certification inspection, with all costs incurred as a result of the taping to be paid by the residential care community. A copy of the audio tape shall be provided to the inspector.

(b) Upon the failure of a residential care community to submit a plan of correction as required or to correct any deficiency within the time specified, the director may assess a civil penalty or initiate other appropriate legal or disciplinary action, as provided by this article.

(c) Nothing in this section may be construed to require the director to afford a formal opportunity for a residential care community to correct a deficiency before initiating an enforcement action in either an administrative or judicial forum, where, in the opinion of the director, the deficiency jeopardizes the health or safety of the community's residents or where the deficiency is the second or subsequent violation to occur within a twelve-month period.

(d) Civil penalties assessed against residential care communities shall be classified according to the nature of the violation, as provided in subsection (c), section five of this article and rules promulgated thereunder, consistent with the following: For each violation of a Class I standard, the civil penalty imposed shall be not less than fifty nor more than $500; for each violation of a Class II standard, the civil penalty imposed shall be not less than twenty-five nor more than $50; for each violation of a Class III standard, the civil penalty imposed shall be not less than ten nor more than $25. Each day that a violation continues after the date of citation constitutes a separate violation. The date of the citation is the date the facility receives the written statement of deficiencies.

(e) The director shall assess a civil penalty not to exceed $2,000 against any individual who notifies a residential care community, or causes it to be notified, in advance, of the time or date on which an inspection is scheduled to be conducted under this article.

(f) If the director assesses a penalty under this section, he or she shall cause a notice of penalty to be delivered to the residential care community by personal service or by certified mail. This notice shall state the amount of the penalty, the action, deficiency or other circumstance for which the penalty is assessed, the statutory requirement or rule which has been violated and the basis upon which the director determined the amount of the penalty.

(g) The director shall recover in a judicial proceeding any civil penalty which: (i) Remains uncontested and unpaid for thirty days after its receipt; or (ii) if contested, has been affirmed by the director and remains unappealed for thirty days after receipt of the director's final order; or (iii) if appealed, has been affirmed upon judicial review of the director's final order. All funds received in the form of civil penalties or interest thereon pursuant to this article shall be deposited in a special resident benefit account which is hereby established and applied by the director exclusively for the protection of the health or property of residents of residential care communities operated within this state that the director determines to be deficient, which may include payment of costs to relocate residents of a deficient residential care community to other facilities, operation costs of a residential care community pending correction of deficiencies or closure and reimbursement of residents for personal funds lost.

(h) The opportunity for a hearing on any action taken under this section is as provided in section twelve of this article. In addition to any other rights of appeal conferred upon a residential care community under this section, it may also request a hearing and seek judicial review pursuant to sections twelve and thirteen of this article to contest the director's citing of a deficiency in an inspection report, irrespective of whether the deficiency results in the imposition of a civil penalty.

§16-5N-11. License limitation, suspension and revocation; ban on admissions; continuation of disciplinary proceedings; closure, transfer of residents, appointment of temporary management; assessment of interest; collection of assessments; hearing.

(a) The director shall by order impose a ban on the admission of additional residents or reduce the number of apartments permitted in a residential care community, or any combination thereof, where it is determined upon inspection that a licensee is not providing adequate care to its residents under its existing quota and, further, that a reduction in the quota or the imposition of a ban on additional admissions, or a combination thereof, would enable the licensee to render adequate care to its residents. A notice to a licensee of a reduction in its quota or a ban on additional admissions shall include the terms of the order, the reasons therefor, and the date by which it must comply.

(b) The director may suspend or revoke a license issued under this article if it is determined upon inspection that there has been a substantial failure to comply with the provisions of this article or the standards or rules promulgated hereunder.

(c) Whenever a license is limited, suspended or revoked pursuant to this section, the director shall file an administrative complaint stating facts constituting the grounds therefor. Upon the filing of this administrative complaint, the director shall notify the licensee in writing, enclose a copy of the administrative complaint, and advise the licensee of its opportunity for a hearing pursuant to section twelve of this article. The notice and copy of the administrative complaint shall be served on the licensee by certified mail, return receipt requested.

(d) The suspension, revocation or expiration of a license, or the withdrawal of an application for a license after it has been filed with the director, may not deprive the director of his or her authority to institute or continue a disciplinary proceeding or to deny an application for a license.

(e) In addition to other remedies provided in this article, upon petition from the director, a circuit court may determine that a residential care community's deficiencies under this article constitute an emergency immediately jeopardizing the health, safety, welfare or rights of its residents, and issue an order to:

(1) Close the residential care community;

(2) Transfer residents of the residential care community to other facilities; or

(3) Appoint a temporary manager to oversee the operation of the residential care community and to assure the health, safety, welfare and rights of the residential care community's residents, where there is a need for temporary management while:

(A) There is an orderly closure of the residential care community; or

(B) Corrections are made in order to bring the residential care community into compliance with all applicable requirements of this article and the rules promulgated hereunder.

If the director petitions a circuit court for the closure of a residential care community, for the transfer of residents, or for the appointment of a temporary manager, the circuit court shall hold a hearing no later than seven days thereafter, at which time the director and the licensee or operator of the residential care community may participate and present evidence.

A circuit court may divest the licensee or operator of possession and control of a residential care community in favor of temporary management. The temporary management is accountable to the court and has those powers and duties that the court may grant to direct all acts necessary or appropriate to conserve the property and promote the health, safety, welfare and rights of the residents, including, but not limited to, replacing managerial and other staff, hiring consultants, making necessary expenditures to close the residential care community or to repair or improve the residential care community so as to return it to compliance with applicable requirements, and receiving, conserving and expending funds, including making payments on behalf of the licensee or operator. Priority in making payments shall be given to expenditures for current direct resident care and the transfer of residents, if necessary.

The person charged with temporary management shall be an officer of the court and paid by the residential care community if resources are available; he or she may not be held liable in any capacity for conditions at the residential care community that originated or existed before his or her appointment nor may he or she be held personally liable for any act or omission, except those constituting gross negligence or intentional acts that result in injuries to persons or damage to property during his or her tenure as temporary manager.

It is unlawful for any person to impede the operation of temporary management as appointed by the court. For ninety days after the appointment of temporary management at a residential care community, any legal action that would interfere with its functioning or operation shall be automatically stayed. These actions include, but are not limited to, cancellation of insurance policies, termination of utility services, attachments to working capital accounts, foreclosures, evictions and repossessions of equipment used in the residential care community.

Temporary management appointed by the court for purposes of making improvements to bring a residential care community into compliance with applicable requirements may not be terminated until the court has determined that the residential care community has the management capability to ensure continued compliance with all applicable requirements: Provided, That if the court does not make such a determination within six months of the appointment of the temporary management, the temporary management terminates by operation of law at that time, and the residential care community shall be closed. After the termination of the temporary management, the person who was appointed as the temporary management shall make an accounting to the court, and after deducting the costs of the temporary management, expenditures and civil penalties and interest no longer subject to appeal, in that order, from receipts, the remainder, if any, shall be paid to the licensee or operator of the residential care community.

(f) Assessments for civil penalties and costs of actions taken under this article, including attorney fees, shall accrue interest at the rate of five percent per annum, beginning on the thirtieth day after receipt of notice of the assessment or the thirtieth day after receipt of the director's final order following a hearing, whichever later occurs. All assessments against a residential care community that remain unpaid shall be added to its licensure fee next due and may be filed as a lien against the property of the licensee or operator of the residential care community. Funds received from these assessments shall be deposited in the same manner as are funds received pursuant to section ten of this article.

(g) The secretary is authorized to propose emergency rules, if necessary, to expand the powers of the director beyond those provided in this article, to the extent required to comply with federal requirements: Provided, That the director's powers may be expanded only to the extent required by federal requirements. Emergency rules proposed pursuant to this subsection are subject to the provisions governing legislative rules contained in article three, chapter twenty-nine-a of this code.

(h) The opportunity for a hearing on any action taken by the director under this section is as provided in section twelve of this article.

§16-5N-12. Administrative appeals from civil penalty assessment, license limitation, suspension or revocation.

(a) Any licensee or applicant aggrieved by an order issued pursuant to section five, six, ten or eleven of this article shall, upon timely written request, be afforded an opportunity for a hearing by the director at which the order may be contested as contrary to law, unwarranted by the facts, or both. The provisions of article five, chapter twenty-nine-a of this code governing contested cases apply to and govern hearings conducted pursuant to this section and the administrative procedures in connection therewith. A licensee or applicant may also request an informal meeting with the director before requesting a hearing.

After a hearing conducted pursuant to this section, the director shall make and enter a written order either dismissing the complaint or taking whatever action is authorized and appropriate pursuant to this article. This written order shall be served upon the licensee and his or her attorney of record, if any, by certified mail, return receipt requested, accompanied by the director's findings of fact and conclusions of law as specified in section three, article five, chapter twenty-nine-a of this code. If the director suspends a residential care community's license, the order directing the suspension shall specify the grounds for the suspension and the time by which the conditions or circumstances giving rise to the suspension must be corrected in order for the licensee to be entitled to reinstatement of its license. If the director revokes a license, he or she may stay the effective date of the revocation upon a showing that a delay is necessary to assure appropriate placement of the licensee's residents: Provided, That the effective date of revocation may not be stayed for more than ninety days. The director's order is final unless it is vacated, reversed or modified by the court upon judicial review in accordance with the provisions of section thirteen of this article.

(b) In addition to all other powers granted by this chapter, the director may take a case under advisement and make a recommendation as to requirements to be met by a licensee in order to avoid suspension or revocation of its license. In these cases, the director shall enter an appropriate order and notify the licensee and its attorney of record, if any, by certified mail, return receipt requested. If the licensee meets the requirements of this order, the director shall enter a subsequent order taking notice of the licensee's satisfactory compliance and dismissing the complaint. This order shall also be delivered to the licensee and its attorney of record, if any, by certified mail, return receipt requested.

§16-5N-13. Judicial review.

Any licensee adversely affected by an order of the director rendered after a hearing held in accordance with the provisions of section twelve of this article is entitled to judicial review thereof. All of the pertinent provisions of section four, article five, chapter twenty-nine-a of this code apply to and govern these proceedings with like effect as if those provisions were set forth in extenso herein.

The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the Supreme Court of Appeals in accordance with the provisions of section one, article six, chapter twenty-nine-a of this code.

§16-5N-14. Legal counsel and services for the director.

(a) Legal counsel and legal services for the director in all administrative hearings and all proceedings in any circuit court and the Supreme Court of Appeals shall be provided by the Attorney General or his or her assistants, an attorney employed by the director or, in proceedings in any circuit court, by the prosecuting attorney of the county wherein the action is instituted, all without additional compensation.

(b) The Governor may appoint counsel for the director, who shall perform legal services in representing the interests of residents in residential care communities in matters under the jurisdiction of the director, as the Governor shall direct. It is the duty of counsel so appointed to appear for the residents in all cases where they are not represented by counsel. The compensation of counsel so appointed shall be fixed by the Governor.

§16-5N-15. Unlawful acts; penalties; injunctions; private right of action.

(a) Whoever advertises, announces, establishes or maintains, or is engaged in establishing or maintaining a residential care community without a license granted under section six of this article, or who prevents, interferes with or impedes in any way the lawful enforcement of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished for the first offense by a fine of not more than $100, or by confinement in the regional or county jail for a period of not more than ninety days, or both, in the discretion of the court. For a second or subsequent offense, the fine may be increased to not more than $250, with confinement in the regional or county jail for a period of not more than ninety days, or both, in the discretion of the court. Each day that a violation continues after conviction therefor constitutes a separate offense.

(b) The director may bring an action to enforce compliance with this article, any rule promulgated hereunder, or order issued hereunder, whenever it appears to the director that a person has engaged in or is engaging in an act or practice in violation of this article or any rule or order hereunder, or whenever it appears to the director that a person has aided, abetted or caused, or is aiding, abetting or causing such an act or practice. Upon application by the director, the circuit court of the county in which the conduct has occurred or is occurring has jurisdiction to grant without bond a permanent or temporary injunction, decree or restraining order.

Whenever the director has refused to grant or renew a license, revoked a license that is required to operate a residential care community, or ordered a person to refrain from actions that violate the rules promulgated pursuant to this article, and the person has appealed the action of the director, the court may, during the pendency of the appeal, issue a restraining order or injunction upon proof that the operation of the residential care community or its failure to comply with the order of the director adversely affects the well-being or safety of the residents of the residential care community. Should a person who appeals an order of the director fail to appear or should the appeal be decided in favor of the director, the court shall issue a permanent injunction upon proof that the person is operating or conducting a residential care community without a license as required by law, or has continued to violate the rules promulgated pursuant to this article.

(c) Any residential care community that deprives a resident of any right or benefit created or established for the well-being of the resident by the terms of any contract, any state statute or rule, or by any applicable federal statute or regulation, is liable to that resident in a civil action for any injuries suffered as a result of the deprivation. Upon a finding that a resident has been deprived of a right or benefit and suffered an injury thereby, compensatory damages shall be assessed in an amount sufficient to compensate the resident for the injury, unless there is a finding that the residential care community exercised due care reasonably necessary to prevent and limit the deprivation and injury to the resident. In addition, if the deprivation by a residential care community of a right or benefit is found to have been willful or in reckless disregard, punitive damages may be assessed. A resident may also maintain an action pursuant to this section for any other type of relief, including injunctive and declaratory relief, permitted by law. Exhaustion of available administrative remedies may not be required prior to commencing an action hereunder.

The amount of damages recovered by a resident in an action brought pursuant to this section is exempt for purposes of determining initial or continuing eligibility for medical assistance under article four, chapter nine of this code, and may not be taken into consideration or required to be applied toward the payment or part payment of the cost of medical care or services available under that article.

Any waiver by a resident or his or her legal representative of the right to commence an action under this section, whether oral or in writing, is null and void as contrary to public policy.

(d) The penalties and remedies provided in this section are cumulative and are in addition to all other penalties and remedies provided by law.

§16-5N-16. Availability of reports and records.

The director shall make available for public inspection and provide copies at a nominal cost of all inspection reports and other reports of residential care communities filed with or issued by the director. Nothing contained in this section may be construed to allow the public disclosure of confidential medical, social, personal or financial records of any resident. The secretary shall adopt rules that are reasonably necessary to effectuate the provisions of this section and preserve the confidentiality of medical, social, personal or financial records of residents.

§16-5O-1. Short title.

This article may be cited as the "Ken Ervin Community Living Act."

§16-5O-2. Definitions.

As used in this article 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 the health care professional in accordance with subdivision sixty-one, section four, article five, chapter thirty of this code, 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 taken. However, for purposes of this article, "administration" does not include judgment, evaluation, assessments, injections of medication (except for prefilled insulin or insulin pens), or monitoring of medication or self-administration of medications, such as prescription drugs and self-injection of medication by the resident.

(b) "Approved medication assistive personnel (AMAP)" means unlicensed facility staff member, who meets eligibility requirements, has successfully completed the required training and competency testing, and is considered competent by the authorized registered professional nurse to administer medications or perform health maintenance tasks, or both, to residents of the facility in accordance with this article.

(c) Authorized practitioner" means a physician licensed under the provisions of article three, chapter thirty of this code or article fourteen, chapter thirty of this code.

(d) "Authorized registered professional nurse" means a person who holds an unencumbered license pursuant to article seven, chapter thirty, and meets the requirements to train and supervise approved medication assistive personnel pursuant to this article, and has completed and passed the facility trainer/instructor course developed by the authorizing agency.

(e) "Authorizing agency" means the Office of Health Facility Licensure and Certification

(f) "Delegation" means transferring to a competent individual, as determined by the authorized registered professional nurse, the authority to perform a selected task in a selected situation.

(g) "Delegation decision model" means the process the authorized registered professional nurse must follow to determine whether or not to delegate a nursing task to an approved medication assistive personnel. The delegation decision model is approved by the West Virginia Board of Examiners for Registered Professional Nurses.

(h) "Department" means the Department of Health and Human Resources.

(i) "Facility" means an intermediate care facility for individuals with an intellectual disability, assisted living, behavioral health group home, private residence in which health care services and health maintenance tasks are provided under the supervision of a registered professional nurse as defined in article seven, chapter thirty of this code.

(j) "Facility staff member" means an individual employed by a facility but does not include a health care professional acting within his or her scope of practice.

(k) "Family" means biological parents, adoptive parents, foster parents, or other immediate family members living within the same household.

(l) "Health care professional" means a medical doctor or doctor of osteopathy, a podiatrist, registered professional nurse, practical nurse, advanced practice registered nurse, physician's assistant, dentist, optometrist or respiratory care professional licensed under chapter thirty of this code.

(m) "Health maintenance tasks" means performing the following tasks according to the legibly written or printed directions of a health care professional or as written on the prescription label, and making a written record of that assistance with regard to each health maintenance task administered, including the time, route and amount taken:

(1) Administering glucometer tests;

(2) Administering gastrostomy tube feedings;

(3) Administering enemas;

(4) Performing ostomy care which includes skin care and changing appliances; and

(5) Performing tracheostomy and ventilator care for residents in a private residence who are living with family and/or natural supports.

"Health maintenance tasks" do not include judgment, evaluation, assessments, injections of medication, except for prefilled insulin or insulin pens, or monitoring of medication or self-administration of medications, such as prescription drugs and self-injection of medication by the resident.

(n) "Immediate family" means mother, stepmother, father, stepfather, sister, stepsister, brother, stepbrother, spouse, child grandparent and grandchildren.

(o) "Location of medication administration or location where health maintenance tasks are performed" means a facility or location where the resident requires administration of medication or assistance in taking medications or the performance of health maintenance tasks.

(p) "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 health care professional to be ingested through the mouth, inhaled through the nose or mouth, administered through a gastrostomy tube, applied to the outer skin, eye or ear, or applied through nose drops, vaginal or rectal suppositories.

(q) "Natural supports" means family, friends, neighbors or anyone who provides assistance and support to a resident but is not reimbursed.

(r) "Registered professional nurse" means a person who holds a valid license pursuant to article seven, chapter thirty of this code.

(s) "Resident" means a resident of a facility who for purposes of this article, is in a stable condition.

(t) "Secretary" means the Secretary of the department or his or her designee.

(u) "Self-administration of medication" means the act of a resident, who is independently capable of reading and understanding the labels of drugs ordered by an authorized practitioner, in opening and accessing prepackaged drug containers, accurately identifying and taking the correct dosage of the drugs as ordered by the health care professional, at the correct time and under the correct circumstances.

(v) "Self-administration of medication with assistance" means assisting residents who are otherwise able to self-administer their own medications except their physical disabilities prevent them from completing one or more steps in the process.

(w) "Stable" means the individual's health condition is predictable and consistent as determined by the registered professional nurse.

(x) "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.

§16-5O-3. Administration of medications; performance of health maintenance tasks; maintenance of liability insurance in facilities.

(a) The secretary shall continue a program for the administration of medications and performance of health maintenance tasks in locations covered by this article. The program shall be developed and conducted in cooperation with the appropriate agencies, advisory bodies and boards.

(b) Administration of medication or performance of health maintenance tasks shall be performed only by:

(1) Licensed health care professionals; or

(2) Facility staff members who have been trained and retrained every two years and who are subject to the supervision of and approval by an authorized registered professional nurse.

(c) After assessing the health status of an individual resident, a registered professional nurse, in collaboration with the resident's health care professional and the facility staff member, may recommend that the facility authorize a facility staff member to administer medication or perform health maintenance tasks if the staff member:

(1) Has been trained pursuant to the requirements of this article;

(2) Is considered by the authorized registered professional nurse to be competent;

(3) Consults with the authorized registered professional nurse on a regular basis; and

(4) Is monitored or supervised by the authorized registered professional nurse.

(d) An agency or facility employing personnel for the purposes of supervising the administration of medication or the performance of health maintenance tasks shall maintain liability insurance for the licensed health care provider, any facility staff member who has been trained and is employed to administer medication or perform health maintenance tasks and if applicable the health care provider's collaborative supervising physician.

(e) Nothing in this article may be construed to prohibit any facility staff member from administering medications or performing health maintenance tasks, or providing any other prudent emergency assistance to aid any person who is in acute physical distress or requires emergency assistance.

(f) Supervision of self-administration of medication by facility staff members who are not licensed health care professionals may be permitted in certain circumstances, when the substantial purpose of the setting is other than the provision of health care.

§16-5O-4. Exemption from licensure; statutory construction.

(a) Any individual who is not otherwise authorized by law to administer medication or perform health maintenance tasks may administer medication or perform health maintenance tasks in locations covered by this article if he or she meets the requirements of this article and is exempt from the licensing requirements of chapter thirty of this code.

(b) Licensed health care professionals remain subject to their respective licensing laws.

(c) Notwithstanding any other provision of law to the contrary, this article shall not be construed to violate or be in conflict with articles seven or seven-a, chapter thirty of this code.

(d) Any parent or guardian may administer medication to, or perform health maintenance tasks for, his or her adult or minor child regardless of whether or not the parent or guardian receives compensation for caring for said child.

§16-5O-5. Instruction and training.

(a) The authorizing agency shall establish a council of nurses to represent the facilities and registered professional nurses affected by this article. The council shall prepare a procedural manual and recommendations regarding a training course to the secretary. The council shall meet every two years to review and make recommendations to the training curricula, competency evaluation procedures and rules implemented by the secretary.

(b) The department shall develop and approve training curricula and competency evaluation procedures for facility staff members who administer medication or perform health maintenance tasks. The department shall consider the recommendations of the council and shall consult with the West Virginia Board of Examiners for Registered Nurses in developing the training curricula and competency evaluation procedures.

(c) The authorizing agency shall coordinate and collaborate with the Board of Respiratory Care to develop the training and testing component for health maintenance tasks related to respiratory care, including but not limited to inhaled medications, tracheostomy care and ventilator care. This includes modifying and updating the existing curriculum for an authorized registered professional nurse and the approved medication assistive persons.

(1) The authorizing agency shall develop and approve training curricula and competency evaluation. The authorizing agency shall establish a council of nurses to assist with the development of the training and evaluation process.

(2) The curriculum, training competency and testing components related to respiratory care shall be approved by the Respiratory Care Board per subsection (e), section fifteen, article thirty-four, chapter thirty.

(d) The program developed by the department shall require that any person who applies to act as a facility staff member authorized to administer medications or perform health maintenance tasks shall:

(1) Hold a high school diploma or general education diploma;

(2) Be certified in cardiopulmonary resuscitation and first aid;

(3) Participate in the initial training program developed by the department;

(4) Pass a competency evaluation developed by the department; and

(5) Participate in a retraining program every two years.

(e) Any facility may offer the training and competency evaluation program developed by the department to its facility staff members. The training and competency programs shall be provided by the facility through a registered professional nurse.

(f) A registered professional nurse who is authorized to train facility staff members to administer medications or perform health maintenance tasks in facilities shall:

(1) Possess a current active license as set forth in article seven, chapter thirty in good standing to practice as a registered nurse;

(2) Have practiced as a registered professional nurse in a position or capacity requiring knowledge of medications and the performance of health maintenance tasks for the immediate two years prior to being authorized to train facility staff members;

(3) Be familiar with the nursing care needs of residents of facilities as described in this article; and

(4) Have completed and passed the facility trainer/instructor course developed by the authorizing agency.

(g) After successfully completing the initial training and testing for the AMAP program, registered professional nurses and AMAPs shall have competencies for health maintenance tasks reassessed and documented annually by the employer of record to ensure continued competence.

§16-5O-6. Availability of records; eligibility requirements of facility staff.

(a) Any facility which authorizes unlicensed staff members to administer medications or perform health maintenance tasks shall make available to the authorizing agency a list of the individual facility staff members authorized to administer medications or perform health maintenance tasks.

(b) Any facility may permit a facility staff member to administer medications or perform health maintenance tasks in a single specific agency only after compliance with all of the following:

(1) The staff member has successfully completed a training program and received a satisfactory competency evaluation as required by this article;

(2) The facility determines there is no statement on the state administered nurse aide registry indicating that the staff member has been the subject of finding of abuse or neglect of a long-term care facility resident or convicted of the misappropriation of a resident's property;

(3) The facility staff member has had a criminal background check or if applicable, a check of the State Police Abuse Registry, establishing that the individual has not been convicted of crimes against persons or drug related crimes;

(4) The medication to be administered is received and maintained by the facility staff member in the original container in which it was dispensed by a pharmacist or the physician; and

(5) The facility staff member has complied with all other applicable requirements of this article, the legislative rules adopted pursuant to this article and other criteria, including minimum competency requirements, as are specified by the authorizing agency.

§16-5O-7. Oversight of medication administration and performance of health maintenance tasks by the approved medication assistive personnel.

(a) Any facility in which medication is administered or health maintenance tasks performed by the approved medication assistive personnel shall establish an administrative monitoring system in administrative policy. The specific requirements of the administrative policy shall be established by the department, through legislative rules. These rules shall be developed in consultation with the West Virginia Board of Examiners for Registered Nurses, the West Virginia Nurses Association, the West Virginia Statewide Independent Living Council, and the West Virginia Board of Respiratory Care. These rules are required to include, at a minimum:

(1) Instructions on protocols for contacting an appropriate healthcare professional in situations where a condition arises which may create a risk to the resident's health and safety;

(2) The type and frequency of monitoring and training requirements for management of these occurrences; and

(3) Procedures to prevent drug diversion.

(b) Monitoring of facility staff members authorized pursuant to this article shall be performed by a registered professional nurse employed or contracted by the facility, who shall exercise judgment, evaluate and assess the patient, inject medicine, except prefilled insulin and insulin pens if this task is delegated to an approved medication assistive person, and monitor medications, self-administration of medications and self-injections by the resident in accordance with his or her scope of practice.

§16-5O-8. Withdrawal of authorization.

The registered professional nurse who monitors or supervises the facility staff members authorized to administer medication or perform health maintenance tasks may withdraw authorization for a facility staff member if the nurse determines that the facility staff member is not performing medication administration or health maintenance tasks in accordance with the training and written instructions. The withdrawal of the authorization shall be documented and relayed to the facility and the department in order to remove the facility staff member from the list of authorized individuals. The department shall maintain a list of the names of persons whose authorization to administer medication or perform health maintenance tasks has been withdrawn, and the reasons for withdrawal of authorization. The list may be accessed by registered professional nurses or facilities.

§16-5O-9. Fees.

The department may set and collect fees necessary for the implementation of the provisions of this article pursuant to rules authorized by section eleven of this article.

§16-5O-10. Limitations on medication administration or performance of health maintenance tasks.

The following limitations apply to the administration of medication or performance of health maintenance tasks by facility staff members:

(a) Injections or any parenteral medications may not be administered, except that prefilled insulin or insulin pens may be administered;

(b) Irrigations or debriding agents used in the treatment of a skin condition or minor abrasions may not be administered;

(c) No verbal medication orders may be accepted, no new medication orders shall be transcribed and no drug dosages may be converted and calculated;

(d) No medications ordered by the health care professional to be given "as needed" may be administered unless the order is written with specific parameters which preclude independent judgment; and,

(e) Health maintenance tasks for the performance of tracheostomy care and ventilator care is not permitted in an intermediate care facility for individuals with an intellectual disability, assisted living, behavioral health group home, private residence where the resident is not residing with family and/or natural supports.

§16-5O-11. Rules.

The department shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as may be necessary to implement the provision of this article.

§16-5O-12. Advisory Committee.

(a) There is continued an advisory committee to assist with the development of polices and procedures regarding health maintenance care in order to safeguard the well-being and to preserve the dignity of persons who need assistance to live in their communities and avoid institutionalization.

(b) (1) The advisory committee shall consist of eleven voting members as follows:

(A) The Olmstead Coordinator within the department of Health and Human Resources, Office of Inspector General;

(B) One physician with expertise in respiratory medicine to be chosen by the West Virginia Board of Respiratory Care.

(C) A representative choosen by AARP West Virginia;

(D) A representative chosen by the West Virginia Statewide Independent Living Council;

(E) A representative chosen by the West Virginia Developmental Disabilities Council;

(F) A representative chosen by the West Virginia Board of Respiratory Care;

(G) A representative chosen by the West Virginia Society for Respiratory Care.

(H) One representative of the West Virginia Board of Examiners for Registered Professional Nurses;

(I) One representative of the West Virginia Nurses Association;

(J) One representative of the Fair Shake Network; and

(K) The Office Director of the Office of Health Facility Licensure and Certification.

(c) A chairman shall be selected from the voting members of the advisory committee.

(d) The advisory committee shall meet at least four times annually, upon the call of the chairman, or at the request of the authorizing agency. A simple majority of the members shall constitute a quorum.

(e) All members of the committee shall be reimbursed reasonable expenses pursuant to the rules promulgated by the Department of Administration for the reimbursement of expenses of state officials and employees and shall receive no other compensation for their services.

§16-5P-1. Purpose of article.

The purpose of this article is to create a bureau in state government which promotes services to enhance the health, safety and welfare of West Virginia's senior population and serves as the primary agency within state government to provide services to the senior population.

§16-5P-2. Short title.

This article may be cited as the "Senior Services Act of 1997".

§16-5P-3. Definitions.

(a) "Bureau" means the Bureau of Senior Services.

(b) "Care management" means the planning, arrangement for and coordination of appropriate community-based, in-home services and alternative living arrangements for the frail elderly, disabled or terminally ill.

(c) "Care services" means housekeeping, personal care, chore, escort/transportation, meals, in-home nursing, day care and/or respite services.

(d) "Commissioner" means the commissioner of the Bureau of Senior Services.

(e) "Community care" means a system of community-based, in-home services and alternative living arrangements which provide a full range of preventive, maintenance and restorative services for the frail elderly, disabled or terminally ill.

(f) "Comprehensive assessment" means the assessment of needs, counseling in the development of a case plan, arrangements for services and on-going monitoring of the frail elderly, disabled or terminally ill.

(g) "Continuum of care" means a system of services which has a primary emphasis on in-home care and community service and which includes services such as nursing, medical, transportation and other health and social services available to an individual in an appropriate setting over an extended period of time.

(h) "Council" means the West Virginia council on aging.

(i) "Disabled" for the purposes of this act means a person who has temporary or permanent impairments which require services within the continuum of care.

(j) "Frail elderly" for the purposes of this act means any person sixty years of age or older, with limitations which restrict the person's ability to perform the normal activities of daily living.

(k) "Senior", "Elderly" or "Aging" means any person sixty years of age or older as defined by the term "older individual" in the Older American's Act of 1965 as amended.

(l) "Sliding fee scale" means a fee for services provided based on an individual client's ability to pay.

§16-5P-4. Appointment of commissioner; term of office; reporting; qualifications; oath.

(a) There is hereby established the Bureau of Senior Services. As of the effective date of this article, all references to the commission on aging shall be construed to mean the Bureau of Senior Services.

(b) The bureau shall be under the supervision of a commissioner of the Bureau of Senior Services. The commissioner shall be appointed by the Governor, with the advice and consent of the Senate, and shall hold office subject to the will and pleasure of the Governor. The commissioner shall be selected with consideration to training and experience in senior issues.

(c) The commissioner shall devote his or her entire time to the duties of his or her office, and may not be a candidate for nor hold any other public office or trust nor be a member of a political committee.

(d) The commissioner, before entering upon the duties of office, shall take and subscribe to the oath prescribed by article IV, section five of the state Constitution. The oath shall be filed with the Secretary of State.

(e) The commissioner shall report directly to the Governor or the Governor's designee.

§16-5P-5. Compensation; traveling expenses.

The Commissioner of the Bureau of Senior Services shall receive an annual salary as provided in section two-a, article seven, chapter six of this code and the necessary traveling expenses incident to the performance of his or her duties. Requisition for traveling expenses shall be accompanied by a sworn itemized statement which shall be filed with the Auditor and preserved as a public record.

§16-5P-6. Powers and duties generally.

The commissioner shall be the executive and administrative head of the bureau and shall have the power and duty to:

(a) Exercise general supervision of the bureau;

(b) Propose legislative rules for the effective and expeditious performance and discharge of the duties and responsibilities placed upon the commissioner by law;

(c) Conduct and coordinate studies of the problems of the state's older people;

(d) Encourage and promote the establishment of local programs and services for the aging;

(e) Conduct programs of public education on the problems of the aging;

(f) Review state programs for the aging, and annually make recommendations to the Governor and the Legislature;

(g) Encourage and assist governmental and private agencies to coordinate effective efforts on behalf of the aging;

(h) Coordinate statewide local and voluntary efforts to serve the aging and develop programs at the local level;

(i) Supervise fiscal management and responsibilities of the bureau;

(j) Keep an accurate and complete record of all bureau proceedings, record and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and documents of the bureau;

(k) Submit an annual report to the Governor on the condition, operation and functioning of the bureau;

(l) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter;

(m) Standardize administration, expedite bureau business, revise rules and promote the efficiency of the service;

(n) Provide a program of continuing professional, technical and specialized instruction for the personnel of the bureau and local service providers; and

(o) Receive on behalf of the state any grant or gift and accept the same, so that the title shall pass to the state. All moneys from grants or gifts shall be deposited with the State Treasurer in a special fund and shall be used for the purposes set forth in the grant or gift.

§16-5P-7. Creation and composition of the West Virginia council on aging; terms of citizen representative; vacancies; officers; meetings.

(a) There is created the West Virginia Council on Aging, which shall be composed of five government members and ten citizen members, and shall serve as an advisory board to the commissioner.

(b) The five government members shall be: (1) The director of the bureau of health; (2) the director of the bureau of medical services; (3) one administrator designated by the secretary of the Department of Health; (4) one administrator designated by the superintendent of the West Virginia state police; and (5) the director of the Division of Rehabilitation Services.

(c) The citizen members shall be appointed by the Governor with the advice and consent of the Senate. No more than five of the citizen members shall belong to the same political party, and no more than six members shall be of the same gender. The members shall be selected in a manner to provide balanced geographical distribution.

(d) The designated administrators and the citizen representatives of the council shall be appointed for terms of four years each, and shall serve until their successors are appointed and qualified. The citizen representatives appointed to staggered terms pursuant to section two, article fourteen, chapter twenty-nine of this code to the state commission on aging shall continue to serve the remainder of their term or until their successors are appointed and qualified.

(e) A majority of the members of the council shall constitute a quorum for the transaction of business. The council shall elect a chair, a vice-chair, and such other officers as it deems necessary. The council shall meet at least two times each year. Each government representative shall designate a person with the authority to attend meetings and act on behalf of the government representative, who shall be considered a member of the council for the purpose of obtaining a quorum for the transaction of business.

§16-5P-8. Expenses of citizen representatives.

Each citizen representative is entitled to receive travel and other necessary expenses actually incurred in the performance of official duties under the provisions of this article. Requisition for such expenses shall be accompanied by a sworn and itemized statement which shall be filed with the Auditor.

§16-5P-9. Programs and services for the aging.

(a) The bureau may establish local programs of services for the aging as needed throughout the state. Insofar as possible, services shall be designed to foster continued participation of older people in family and community life and to avoid or postpone the onset of dependency and the need for long-term care.

(b) Any allocations by the bureau of appropriations for local programs may be made contingent upon local appropriations or gifts in money or in kind for the support of such programs. The county commission of any county or governing body of any municipality in this state may appropriate and expend money for establishing and maintaining programs. Funds appropriated by the county commission or by the governing body of any municipality in this state may be contributed from time to time to any committee or organization approved by the bureau for the purposes authorized by this section.

(c) The bureau as provided hereunder may receive and expend funding, including the state's share of federal funds, designated for the construction, acquisition and renovation of senior centers.

(d) The Legislature may appropriate funds on a matching basis or funds from any other source to be used for the purposes stated in this section.

§16-5P-10. Community care services.

The bureau shall, within available funds, administer programs, including care management, comprehensive assessment and community and in-home care services, based on a sliding fee scale.

§16-5P-11. Prevention of crimes against the elderly.

(a) It is the intent of the Legislature that all state agencies cooperate with the bureau and the State Police in carrying out the provisions of this section.

(b) In planning and developing programs and recommendations relating to the prevention of crime and the fear of crime, including fraud, against elderly persons, the bureau shall, within existing appropriations, evaluate the need for new or improved programs, including:

(1) Public education and awareness;

(2) Community coordination in areas of social services and criminal justice;

(3) Voluntary involvement of elderly persons and retired professionals in the criminal justice system;

(4) Victim and witness assistance;

(5) Reduction of the economic and physical consequences of crime against the elderly; and

(6) Reduction of isolation of the elderly in the community.

(c) State agencies shall cooperate with and assist the bureau, within their available resources, in gathering statistical data and implementing programs which have the potential to prevent crime against elderly persons.

§16-5P-12. Designated state agency for handling federal programs.

The bureau shall constitute the designated state agency for handling all programs of the federal government relating to the aging requiring action within the state, which are not the specific responsibility of another state agency under the provisions of federal law or which have not been specifically entrusted to another state agency by the Legislature. The bureau shall be empowered to comply with all regulations and requirements to qualify for federal grants and to administer such federal funds.

§16-5P-13. Records and files, existing programs and contracts; rules.

(a) All records, files and other property belonging to the West Virginia commission on aging pursuant to article fourteen, chapter twenty-nine of this code shall be turned over to the bureau herein created and shall be continued as part of the records, files and other property thereof.

(b) All contracts, programs and agreements entered into or offered by the state commission on aging prior to the effective date of this statute shall continue in legal force and effect under the Bureau of Senior Services.

(c) All existing rules promulgated by the state commission on aging shall remain in effect and be administered and interpreted by the commissioner until such time as they are revoked or modified.

§16-5P-14. Reports.

The bureau shall submit a report on the condition, operation and functioning of the bureau to the Governor and to the members of the Legislature on or before January 1, of each year, in addition to such other recommendations, studies and plans as it may submit from time to time.

§16-5P-15. Establishment of In-home Care Registry.

(a) There is continued within the Bureau of Senior Services an in-home care worker registry which is to be maintained by the bureau. The purpose of the registry is to provide the public a list of in-home care workers, along with their qualifications, who voluntarily agree to be included and who have obtained a criminal background check.

(b) "In-home care worker" means an unlicensed person who provides personal care or other services and supports to persons with disabilities or to the elderly in order to enhance their well-being and which involves face-to-face direct contact with the person. Functions performed may include, but are not limited to, assistance and training in activities of daily living, personal care services, and job-related supports.

(c) The bureau shall propose rules for legislative approval during the 2014 legislative session in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish the following:

(1) The registry of in-home care workers;

(2) The requirements for inclusion on the registry as an "in-home care worker", including educational attainment;

(3) A fee schedule: Provided, That the Commissioner of the Bureau of Senior Services shall waive the initial registration fee for the first sixty days the registration is active;

(4) Requiring an applicant to obtain a state or federal criminal background check, as determined in legislative rule by the bureau;

(5) How a person obtains information from the registry; and

(6) Any other requirement necessary to implement the provisions of this section.

§16-5Q-1. Creation of the James "Tiger" Morton catastrophic illness fund.

Moneys in the fund created in the State Treasury, designated the "James >Tiger' Morton Catastrophic Illness Fund" shall be distributed in accordance with the provisions of this article. The purpose of this fund is to provide a source of economic assistance to the citizens of this state facing catastrophic illness. In addition to any funds appropriated by the Legislature, the Tiger Morton Fund may receive donations of cash or property from other sources, including gifts, grants, or donations from any source whatsoever. After appropriation by the Legislature, the catastrophic illness commission may make expenditures from the fund as necessary to accomplish the purposes of this article.

§16-5Q-2. Catastrophic illness commission; composition; meetings.

(a) The catastrophic illness commission shall consist of six members appointed for terms of five years by the Governor, by and with the advice and consent of the Senate, and the long term care ombudsman, who shall serve as a nonvoting ex officio member. One member shall be a medical doctor licensed to practice medicine in this state, one member shall be an attorney licensed to practice law in this state, two members shall be from the public at large who are active in community affairs, one member shall be a nurse licensed to practice in this state, and one member shall be a social worker licensed in this state. The terms of office of the first appointments to the catastrophic illness commission shall be as follows: The medical doctor and attorney shall be appointed for an initial term of three years; the initial term of the nurse appointee and the licensed social worker appointee shall be four years; the initial term of the remaining members of the commission appointed by the Governor shall be five years. No more than five of the members appointed by the Governor may be from the same political party. Members of the catastrophic illness commission, other than the ex officio member, may receive expenses only up to $125 per day, not to exceed $15,000 in the aggregate per year. The commission shall meet at least quarterly and annually elect a chairperson. Meetings shall be conducted in accordance with the provisions of article nine-a, chapter six of this code. Special meetings may be called. Before discharging any duties, members shall comply with the oath or affirmation requirements of article one, chapter six of this code. Members are subject to the ethical standards and financial disclosure requirements of the West Virginia governmental ethics act in chapter six-b of this code and serve at the will and pleasure of the Governor as provided in section four, article six, chapter six of this code.

(b) The catastrophic illness commission shall make an annual recommendation to the Legislature regarding appropriations from the catastrophic illness fund. This recommendation shall be made annually, in writing, to the Legislature no later than the second Wednesday of January.

(c) The commission shall appoint an executive director whose compensation shall be fixed by the commission within its budgetary appropriation. The executive director shall be classified exempt and may not be a member of the commission. The executive director may attend all meetings of the commission, as well as its committees, but has no vote on decisions or actions of the commission or its committees. The executive director shall carry out the decisions and actions of the commission, administer all affairs of the commission in accordance with its policies and discharge other duties as the commission shall from time to time determine. The commission may employ other officers, employees and clerical assistants as it considers necessary and may fix their compensation within the amounts made available by appropriation.

(d) The secretary of the Department of Human Services shall propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code to accomplish the purpose of the James "Tiger" Morton catastrophic illness fund including, but not limited to, establishing eligibility standards for the distribution of moneys from the fund. The secretary may propose emergency rules to establish the eligibility standards.

(e) The secretary shall assist the commission in the investigation of any suspected fraud related to an application for assistance through the catastrophic illness fund.

§16-5Q-3.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§16-5Q-4. Assignment of rights; right of subrogation by the James "Tiger" Morton Catastrophic Illness Commission to the rights of recipients of medical assistance; rules as to effect of subrogation.

(a) (1) Submission of an application to the Catastrophic Illness Commission for medical assistance is, as a matter of law, an assignment of the right of the applicant, or legal representative thereof, to recovery from personal insurance or other sources, including, but not limited to, liable third parties, to the extent of the cost of medical services paid for by the Catastrophic Illness Commission's Medical Assistance Program.

(2) At the time the application is made, the Catastrophic Illness Commission shall include a statement along with such application that explains that the applicant has assigned all such rights to the Catastrophic Illness Commission, and the legal implications of making such assignment as provided in this section.

(3) If medical assistance is paid or will be paid by the Catastrophic Illness Commission to a provider of medical care on behalf of a recipient of medical assistance because of a "catastrophic illness", as defined by this article, and another person is legally liable for such expense, either pursuant to contract, negligence or otherwise, the Department of Human Services, on behalf of the Catastrophic Illness Commission, shall have the right to recover full reimbursement from any award or settlement for such medical assistance from such other person, or from the recipient of such assistance if he or she has been reimbursed by the other person. The Department of Human Services shall be legally assigned the rights of the recipient against the person so liable, but only to the extent of the reasonable value of the medical assistance paid and attributable to the catastrophic illness for which the recipient has received damages.

(4) When an action or claim is brought by a medical assistance recipient, or by someone on his or her behalf, against a third party who may be liable for the catastrophic illness or death of a medical assistance recipient, any settlement, judgment or award obtained is subject to the claim of the Department of Human Services, on behalf of the Catastrophic Illness Commission for reimbursement of an amount sufficient to reimburse the Department of Human Services the full amount of benefits paid on behalf of the recipient under the Catastrophic Illness Commission's Medical Assistance Program for the catastrophic illness of the medical assistance recipient. The claim of the Department of Human Services on behalf of the Catastrophic Illness Commission, assigned by such recipient shall not exceed the amount of medical expenses for the catastrophic illness of the recipient paid by the Department of Human Services on behalf of the recipient. The right of subrogation created in this section includes all portions of the cause of action, by either settlement, compromise, judgment or award, notwithstanding any settlement allocation or apportionment that purports to dispose of portions of the cause of action not subject to the subrogation. Any settlement, compromise, judgement or award that excludes or limits the cost of actual medical services or care shall not preclude the Department of Human Services from enforcing its rights under this section. The Secretary of the Department of Human Services may compromise, settle and execute a release of any such claim in whole or in part.

(b) (1) Nothing in this section shall be construed so as to prevent the recipient of medical assistance from maintaining an action for injuries received by him or her against any other person and from including therein, as part of the compensatory damages sought to be recovered, the amount or amounts of his or her medical expenses, even though such person received medical assistance in the payment of such medical expenses in whole or in part.

(2) If the action be tried by a jury, the jury shall not be informed as to the interest of the Department of Human Services on behalf of the Catastrophic Illness Commission, if any, and such fact shall not be disclosed to the jury at any time. The trial judge shall, upon the entry of judgment on the verdict, direct that an amount equal to the amount of medical assistance given by the commission be withheld and paid over to the Department of Human Services on behalf of the commission. Irrespective of whether the case be terminated by judgment or by settlement without trial, from the amount required to be paid to the Department of Human Services on behalf of the Catastrophic Illness Commission, there shall be deducted the attorney fees attributable to such amount in accordance with and in proportion to the fee arrangement made between the recipient and his or her attorney of record so that the Department of Human Services shall bear the pro rata portion of such attorney fees. Nothing in this section shall preclude any person who has received medical assistance from settling any cause of action which he or she may have against another person and delivering to the Department of Human Services from the proceeds of such settlement the sums received by him or her from the commission or paid by the commission for his or her medical assistance. If such other person is aware of or has been informed of the interest of the Department of Human Services on behalf of the commission in the matter, it shall be the duty of the person to whose benefit the release inures to withhold so much of the settlement as may be necessary to reimburse the Department of Human Services, to the extent of its interest in the settlement. No judgment, award of or settlement in any action or claim by a medical assistance recipient or his or her representative to recover damages for a catastrophic illness or death, in which the Department of Human Services on behalf of the commission has an interest, shall be satisfied without first giving the Department of Human Services notice and reasonable opportunity to establish its interest. The Department of Human Services shall have sixty days from the receipt of such written notice to advise the recipient or his or her representative in writing of its desire to establish its interest through the assignment. If no such written intent is received within the sixty-day period, then the recipient may proceed and in the event of full recovery forward to the Department of Human Services the portion of the recovery proceeds less the Department of Human Services' share of attorney's fees and costs expended in the matter. In the event of less than full recovery the recipient and the Department of Human Services shall agree as to the amount to be paid to it for its claim. If there is no recovery, the Department of Human Services shall under no circumstances be liable for any costs or attorney fees expended in the matter. If, after being notified in writing of a subrogation claim and possible liability of the recipient, guardian, attorney or personal representative for failure to subrogate the Department of Human Services, a recipient, his or her guardian, attorney or personal representative disposes of the funds representing the judgment, settlement or award without the written approval of the Department of Human Services, that person shall be liable to the Department of Human Services for any amount that, as a result of the disposition of the funds, is not recoverable by the Department of Human Services. In the event that a controversy arises concerning the subrogation claims by the Department of Human Services, an attorney shall interplead, pursuant to Rule 22 of the Rules of Civil Procedure, the portion of the recipient's settlement that will satisfy the Department of Human Services exclusive of attorney fees and costs regardless of any contractual arrangement between the client and the attorney.

(c) Nothing contained herein shall authorize the Department of Human Services or the Catastrophic Illness Commission to institute a class action or multiple plaintiff action against any manufacturer, distributor or vendor of any product to recover medical care expenditures paid for by the Catastrophic Illness Commission's Medical Assistance Program.

§16-5R-1. Name of act.

This act shall be known and may be cited as the "Alzheimer's Special Care Standards Act."

§16-5R-2. Findings and declarations.

The Legislature finds and declares that:

(a) Certain nursing homes and related facilities, adult congregate living facilities, adult day care centers, hospices and adult foster homes claim to provide special care units and services for persons who have alzheimer's disease;

(b) It is in the public interest to provide for the protection of consumers by ensuring the accuracy and authenticity of such claims; and

(c) The provisions of this article are intended to require the facilities to actually provide the care they claim to offer, require written disclosure of special services provided, require the appropriate state licensing agency to examine the performance of such facilities in providing special services for persons who have alzheimer's disease, and provide penalties for failure to provide the services claimed as the agency considers appropriate.

§16-5R-3. Definition of alzheimer's special care unit/program.

For the purposes of this article, the following definitions apply:

(a) "Alzheimer's disease" means a diagnosis of presenile dementia or senile dementia-Alzheimer type (SDAT), characterized by confusion, memory failure, disorientation, restlessness, agnosia, speech disturbances, inability to carry out purposeful movements and hallucinosis.

(b) "Alzheimer's Special Care Unit or Program," means any facility that secures, segregates or provides a special program or special unit for residents with a diagnosis of probable alzheimer's disease or a related disorder and that advertises, markets or otherwise promotes the facility as providing specialized alzheimer's or dementia care services.

(c) "Department" means the Department of Health.

(d) "Facility" means any nursing home or facility, residential board and care home, personal care home, assisted living facility, adult congregate living facility, home health agency, adult day care center, hospice or adult foster home situate or operating in this state.

(e) "Resident" means an individual living in a facility that offers an alzheimer's special care unit or program.

(f) "Secretary" means the secretary of the Department of Health.

§16-5R-4. Alzheimer's special care disclosure required.

(a) Any facility which offers to provide or provides care for a person with alzheimer's disease through an alzheimer's special care unit or special care program shall disclose in writing the form of care or treatment that distinguishes the unit or program as being especially applicable to or suitable for such persons. The disclosure shall be provided to the department, to any person seeking placement within an alzheimer's special care unit or program, and to any legal guardian or relative acting on behalf of a resident or person seeking placement.

(b) The department shall examine all disclosures provided to it as part of the facility's license renewal procedure and verify the accuracy of the disclosures.

(c) The disclosure required by this section shall include the following information:

(1) A statement of the overall treatment philosophy and mission of the special care unit or program which reflects the needs of residents afflicted with alzheimer's disease or dementia;

(2) A description of the facility's screening, admission and discharge procedures, assessment, care planning and implementation, staffing patterns and training ratios unique to the program or unit;

(3) A description of the physical environment and design features and an explanation of how they are appropriate to support the functioning of cognitively impaired adult residents;

(4) A description of activities available to residents, the frequency and types of resident activities, and how they are specialized for residents who suffer from alzheimer's disease;

(5) A statement that describes the involvement of families in the care of residents and the availability of family support programs;

(6) The costs of care and any additional fees unique to the alzheimer's special care unit or program.

§16-5R-5. Standards for care; rules.

(a) The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, setting minimum standards for the care and treatment of persons with alzheimer's disease and other dementia in facilities offering alzheimer's special care units or programs.

(b) The standards established pursuant to this section shall apply to all facilities offering alzheimer's special care units or program and shall be in addition to any other statutory requirements, rules or standards that are applicable to the facility.

(c) The secretary shall enforce the rules and standards for alzheimer's special care units or programs and shall exercise all powers necessary for such enforcement, including investigation and reporting of violation of the rules, issuance of notices or warnings to facilities found in violation of the standards, assessment of civil penalties in accordance with the applicable licensing provisions of the facility, and suspension or revocation of licenses.

(d) If a facility advertising, marketing or otherwise promoting the facility as providing specialized alzheimer or dementia care services does not meet the standards established by the secretary, the department shall instruct the facility to cease such advertising, marketing or promoting.

§16-5R-6. Alzheimer's and dementia care training; rules.

(a) For the purposes of this section, "resident" means an individual receiving care or services in an adult day care facility, nursing home, assisted living facility or residential care community.

(b) The Secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-s of this code, setting minimum standards for Alzheimer's and dementia care training of all staff, employees and contractors that come in regular and direct contact with residents.

(c) The standards established in this section shall apply to adult day care facilities, nursing homes, assisted living facilities and residential care communities who provide services under the supervision of a licensed operator.

§16-5R-7. Establishment of a central registry.

(a) To the extent funds are available, the Governing Board of the West Virginia University shall establish an Alzheimer's Disease Registry to collect information concerning Alzheimer's disease and related disorders. The purpose of the registry shall be to provide a central database of information to assist in the development of public policy and planning. The information collected by the registry shall be analyzed to prepare reports and perform studies as necessary when such data identifies information useful in developing policy.

(b) All reporting sources, including hospitals, physicians, facilities, clinics or other similar units diagnosing or providing treatment or care for Alzheimer's disease and related disorders, shall provide a report of each case to the Alzheimer's Disease Registry in the format specified.

(c) All information reported pursuant to this section is confidential and shall be used only for the purposes set forth herein. A report provided to the Alzheimer's Disease Registry that discloses the identity of the individual being treated shall only be released in accordance with the provisions of the Health Insurance Portability and Accountability Act of 1996. No liability of any kind or character for damages or other relief shall arise or be enforced against any reporting source by reason of having provided the information or material to the Alzheimer's Disease Registry.

(d) The governing board shall propose rules pursuant to the provisions of article three, chapter twenty-nine-a of this code to implement this section. The rules shall include, but not be limited to: (1) The content and design of all forms and reports required by this section; (2) the type of information to be collected and maintained; (3) the procedures for disclosure of nonidentifying data to other appropriate research entities; (4)the manner in which reporting entities or individuals, including families, may be contacted by the registry for additional relevant information; and (5) any other matter necessary to the administration of this section.

§16-5S-1. Short title.

This article may be cited as the "Older West Virginians Act of 2000."

§16-5S-2. Purpose and objectives.

(a) The purpose of this article is to provide guidance and assistance in the development of new or improved activities and programs to help older West Virginians maintain independence, honor and dignity, within available federal and state funds.

(b) This article establishes an array of services which are to be provided at a no cost or at a reasonable cost for senior citizens: Provided, That nothing in this article may be construed to require the provision of any service by the bureau. The service packages shall be prioritized first to in-home, community based clients to enable them to remain independent for as long as possible in local settings. Second level priority services shall be those which are preventive and supportive in nature.

(c) Management practice shall integrate programs with service providers and service options through a statewide delivery system.

(d) Programs shall recognize the strengths of the older population, especially in the areas of volunteerism and leadership, to improve the status of all older individuals in West Virginia.

§16-5S-3. Definitions.

For the purpose of this article:

(a) "Aging network" means the network of the Bureau of Senior Services, area agencies on aging, and local providers of direct services to older individuals;

(b) "Bureau" refers to the Bureau of Senior Services;

(c) "Commissioner" refers to the commissioner of the Bureau of Senior Services;

(d) "Focal point" means a facility established to encourage the maximum collocation and coordination of services for older individuals;

(e) "Older individual" or "older West Virginian" or "senior" or "senior citizen" means an individual who is sixty years of age or older;

(f) "State agency" refers to the Bureau of Senior Services.

§16-5S-4. Powers and duties of the commissioner.

For purposes of this article, the commissioner shall have the powers and duties set forth in section six, article five-p of this chapter. In addition, the commissioner shall ensure the bureau fulfills the requirements of section twelve, article five-p of this chapter, relating to federal government programs.

§16-5S-5. Powers and duties of the Bureau of Senior Services.

The bureau shall be the designated state agency to:

(a) Develop and administer the state plan as required by the federal administration on aging;

(b) Be the primary agency responsible for the planning, policy development, administration, coordination, priority setting and evaluation of activities related to this article;

(c) Serve as an effective and visible advocate for older West Virginians;

(d) Divide the state into distinct planning and service areas and designate for each area a public or private nonprofit agency or organization as the area agency on aging as required by the federal administration on aging;

(e) Provide technical assistance and information to area agencies on aging and local service providers as appropriate and conduct monitoring of area agencies on aging to ensure compliance with applicable rules, regulations and standards;

(f) Maintain client and service data using a standardized computer client tracking system through which all providers shall report required information;

(g) Maintain letters of agreement with the Department of Human Services to provide program operations of the personal care and aged and disabled waiver programs; and

(h) Maintain a registry of companies and organizations that provide free medications or provide assistance to persons in securing medications, and make this information available to consumers through all local senior programs.

§16-5S-6. Area agencies on aging.

The area agencies on aging designated by the bureau shall be charged with the following:

(a) Prepare and develop an area plan in a format provided by the bureau and as required by the federal administration on aging;

(b) Enter into agreements and contracts with local service providers for the provision of supportive services and nutrition services funded through the federal administration on aging;

(c) Designate, where feasible, a focal point for service delivery in each community;

(d) Establish an advisory council in accordance with the requirements of the federal administration on aging;

(e) Serve as an effective and visible advocate for older West Virginians; and

(f) Provide appropriate technical assistance and information to local service providers and conduct monitoring of local service providers to ensure compliance with applicable rules, regulations and standards.

§16-5S-7. Local service providers.

(a) Service providers who offer "Older West Virginians Act" and related services funded through the federal administration on aging shall:

(1) Determine the needs of seniors in the particular geographic area covered by gaining input from the seniors themselves, their families and care givers;

(2) Develop a plan of service based on the needs of the seniors in a format provided by the area agency;

(3) Provide supportive services, nutrition services and senior centers which shall, within available funding, meet the identified needs of seniors;

(4) Serve as an effective and visible advocate for older West Virginians; and

(5) Participate in the bureau's client tracking system.

(b) Service providers who offer Medicaid reimbursed services shall:

(1)Comply with appropriate Medicaid regulations and policies including provider agreements, program manuals and program instructions;

(2) Maintain client files, provider information and report as required for the determination of compliance with established program standards as determined by the bureau for medical services; and

(3) Participate in the bureau's client tracking system.

§16-5S-8. Supportive services.

Supportive services funded through the federal administration on aging for older West Virginians may include, but are not limited to: Adult day care, assessment, assisted transportation, care training, chore, counseling, discount, home repair, housing assistance, information and assistance, instruction/training, legal assistance, letter/writing, reading, material aid, nutrition education, outreach, telephoning, transportation and visiting, all as defined by the bureau and the federal administration on aging.

§16-5S-9. Nutrition services.

All congregate meals and home delivered meals shall contain one third of the recommended daily allowance for vitamins and minerals. Congregate meal sites may include senior centers, community buildings, schools, churches and elderly housing complexes. Home delivered meals are to be delivered to eligible individuals, in accordance with guidelines and standards established by the bureau and the federal administration on aging.

§16-5S-10. Other services.

The bureau shall also coordinate and provide older West Virginians the following:

(a) In-home services for those who are frail or at risk of becoming institutionalized; and

(b) Disease prevention and health screening services.

§16-5S-11. Programs and special activities for older West Virginians.

(a) The bureau shall continue and maintain its long-term care ombudsman program codified in article five-l, chapter sixteen of this code. The bureau shall also design and implement programs for the benefit of older West Virginians relating to: Elder abuse, neglect and exploitation; elder rights and legal assistance; in-home personal care for Medicaid and nonMedicaid eligible senior citizens; direct services established by the legislative initiatives for the elderly (LIFE), senior health insurance network as established by the United States health care financing administration and a foster grandparent program as established by the corporation for national and community service.

(b) The bureau may sponsor the following special activities for older West Virginians: Governor's golden mountaineer program, a discount program for goods and services at participating merchants, an annual senior citizens conference providing educational and entertainment opportunities, a Governor's summit on aging, a silver haired Legislature and an annual senior day at the Legislature. The bureau may sponsor additional special activities as necessary.

§16-5T-1. Short title.

This article shall be referred to as the West Virginia Drug Control Policy Act.

§16-5T-2. Office of Drug Control Policy.

(a) The Office of Drug Control Policy is continued. The Director of the Office of Drug Control Policy shall be appointed by the Governor, by and with the advice and consent of the Senate. The director of the office is administratively housed in the Department of Human Services and directly reports to the Office of the Governor, and works in cooperation with the State Health Officer, the Bureau of Public Health, and the Bureau for Behavioral Health.

(b) The Office of Drug Control Policy shall create a state drug control policy in coordination with the bureaus of the department and other state agencies. This policy shall include all programs which are related to the prevention, treatment, and reduction of substance abuse use disorder.

(c) The Office of Drug Control Policy shall:

(1) Develop a strategic plan to reduce the prevalence of drug and alcohol abuse and smoking by at least 10 percent;

(2) Monitor, coordinate, and oversee the collection of data and issues related to drug, alcohol, and tobacco access, substance use disorder policies, and smoking cessation and prevention, and their impact on state and local programs;

(3) Make policy recommendations to executive branch agencies that work with alcohol and substance use disorder issues, and smoking cessation and prevention, to ensure the greatest efficiency and consistency in practices will be applied to all efforts undertaken by the administration;

(4) Identify existing resources and prevention activities in each community that advocate or implement emerging best practice and evidence-based programs for the full substance use disorder continuum of drug and alcohol abuse education and prevention, including smoking cessation or prevention, early intervention, treatment, and recovery;

(5) Encourage coordination among public and private, state and local agencies, organizations, and service providers, and monitor related programs;

(6) Act as the referral source of information, using existing information clearinghouse resources within the Department, relating to emerging best practice and evidence-based substance use disorder prevention, cessation, treatment and recovery programs, and youth tobacco access, smoking cessation and prevention. The Office of Drug Control Policy will identify gaps in information referral sources;

(7) Apply for grant opportunities for existing programs;

(8) Observe programs in other states;

(9) Make recommendations and provide training, technical assistance, and consultation to local service providers;

(10) Review existing research on programs related to substance use disorder prevention and treatment and smoking cessation and prevention, and provide for an examination of the prescribing and treatment history, including court-ordered treatment, or treatment within the criminal justice system, of persons in the state who suffered fatal or nonfatal opiate overdoses;

(11) Establish a mechanism to coordinate the distribution of funds to support any local prevention, treatment, and education program based on the strategic plan that could encourage smoking cessation and prevention through efficient, effective, and research-based strategies;

(12) Establish a mechanism to coordinate the distribution of funds to support a local program based on the strategic plan that could encourage substance use prevention, early intervention, treatment, and recovery through efficient, effective and research-based strategies;

(13) Oversee a school-based initiative that links schools with community-based agencies and health departments to implement school-based anti-drug and anti-tobacco programs;

(14) Coordinate media campaigns designed to demonstrate the negative impact of substance use disorder, smoking and the increased risk of tobacco addiction and the development of other diseases;

(15) Review Drug Enforcement Agency and the West Virginia scheduling of controlled substances and recommend changes that should be made based on data analysis;

(16) Develop recommendations to improve communication between health care providers and their patients about the risks and benefits of opioid therapy for acute pain, improve the safety and effectiveness of pain treatment, and reduce the risks associated with long-term opioid therapy, including opioid use disorder and overdose;

(17) Develop and implement a program, in accordance with the provisions of §16-5T-3 of this code, to collect data on fatal and nonfatal drug overdoses caused by abuse and misuse of prescription and illicit drugs, from law enforcement agencies, emergency medical services, health care facilities and the Office of the Chief Medical Examiner;

(18) Develop and implement a program that requires the collection of data on the dispensing and use of an opioid antagonist from law enforcement agencies, emergency medical services, health care facilities, the Office of the Chief Medical Examiner and other entities as required by the office;

(19) Develop a program that provides assessment of persons who have been administered an opioid antagonist;

(20) Report semi-annually to the Joint Committee on Health on the status of the Office of Drug Control Policy.

(d) Notwithstanding any other provision of this code to the contrary, and to facilitate the collection of data and issues, the Office of Drug Control Policy may exchange necessary data and information with the bureaus within, the Department of Health, the Department of Human Services, the Department of Military Affairs and Public Safety, the Department of Administration, the Administrator of Courts, the Poison Control Center, Office of National Drug Control Policy and the Board of Pharmacy. The data and information may include, but is not limited to: data from the Controlled Substance Monitoring Program; the criminal offender record information database; and the court activity record information.

§16-5T-3. Reporting system requirements; implementation; central repository requirement.

(a) The Office of Drug Control Policy shall implement a program in which a central repository is established and maintained that shall contain overdose information via an appropriate information technology platform with secure access for the purpose of making decisions regarding the allocation of public health and educational resources. In implementing this program, the office shall consult with all affected entities, including law-enforcement agencies, health care providers, emergency response providers, pharmacies, and medical examiners.

(b) The program authorized by this section shall be designed to minimize inconvenience to all entities maintaining possession of the relevant information while effectuating the collection and storage of the required information.

§16-5T-4. Entities required to report; required information; Continuation of data dashboard.

(a) To fulfill the purposes of this article, the following information shall be reported, within 24 hours after the provider responds to the incident and via an appropriate information technology platform, to the Office of Drug Control Policy:

(1) The date and time of the overdose;

(2) The approximate address of where the person was picked up or where the overdose took place;

(3) Whether an opioid antagonist was administered;

(4) Whether the overdose was fatal or nonfatal;

(5) The gender and approximate age of the person receiving attention or treatment;

(6) The suspected controlled substance involved in the overdose;

(7) Whether the individual has a history of a prior overdose, if known; and

(8) The type of drug used in the overdose.

(b) The following entities shall be required to report information contained in §16-5T-4(a) of this code:

(1) Health care providers;

(2) Medical examiners;

(3) Law-enforcement agencies, including, state, county, and local police departments;

(4) Emergency response providers; and

(5) Hospital emergency rooms.

(c) The data collected by the office pursuant to this subsection shall be made available to law enforcement, local health departments, and emergency medical service agencies in each county.

(d) Entities who are required to report information to or from the office pursuant to this section in good faith are not subject to civil or criminal liability for making the report.

(e) For the purposes of this section:

“Information technology platform” means a dashboard constructed for or by the state to allow input, collection, data analysis, and display of the required data within 24 hours. The dashboard shall be scalable for additional future requirements with minimum engineering and development time. There is a preference that the dashboard be compatible with artificial intelligence to maintain monitoring.

“Overdose” means an acute condition, including, but not limited to, extreme physical illness, decreased level of consciousness, respiratory depression, coma, or death believed to be caused by abuse and misuse of prescription or illicit drugs or by substances that a layperson would reasonably believe to be a drug.

 “Opioid antagonist” means a federal Food and Drug Administration-approved drug for the treatment of an opiate-related overdose, such as naloxone hydrochloride or other substance that, when administered, negates or neutralizes, in whole or in part, the pharmacological effects of an opioid in the body.

(f) Office of Drug Control Policy shall continue to compile the data that is reported, or that it otherwise has access to, in a public facing data dashboard. This dashboard shall also include the following:

(1) Every project that receives state funding, federal funding, opioid settlement funds, and other relevant funding sources for substance use disorder beginning in fiscal year 2024;

(2) Data on the outcomes of funded community-based outreach programs, harm reduction programs, criminal justice substance use disorder programs, harm prevention programs, and other funded program, to evaluate program effectiveness and inform program improvement;

(3) A comparison of program effectiveness by county, region, rural or urban, and demographics to identify best practices and areas for improvement and share these findings with stakeholders to support evidence-based decision making;

(4) Alerts to a rise in fatal and non-fatal overdoses in a given area or region to enable resources to be deployed to the area;

(5) Track and interact with medication assisted treatment providers, including the number of patients in and out of treatment, to support the coordination of care and effective care for individuals with substance use disorder;

(6) Public facing information, including maps, charts, and other visualizations, to increase transparency and engagement with stakeholders

(7) The location of every substance use disorder provider on a statewide basis to provide individuals linkage to care;

(8) Non-fatal overdoses within 24 hours of the incident, with data collected from multiple sources, including hospitals, first responders, and law enforcement agencies;

(9) Fatal overdoses with data collected from multiple sources including hospitals, first responders, and law enforcement agencies;

(10) Identification of trends from the data that has been collected, including but not limited to fatal and non-fatal overdoes, use of opioid antagonist, trends in illicit drugs causing overdoses, and other relevant data that can be used to inform the allocation of resources in an area;

(11) Emergency department visits and first responder calls for fatal and non-fatal overdoses, and use this data to identify trends and hotspots and inform resource allocation;

(12) Data regarding program effectiveness in both the short-term and long-term with both immediate and long-term outcomes for individuals receiving services and support for ongoing program improvement and refinement; and

(13) The dashboard shall be updated daily to reflect current data, changes in provider location, and any other updates as needed.

§16-5T-5. Promulgation of rules.

The director may propose rules for promulgation in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this section. The Legislature finds that for the purposes of §29A-3-15 of this code, an emergency exists requiring the promulgation of emergency rules to preserve the public peace, health, safety or welfare and to prevent substantial harm to the public interest.

§16-5U-1. Short title.

This article may be known and cited as the "West Virginia Arthritis Prevention Education Act."

§16-5U-2. Responsibilities of Bureau for Public Health.

(a) The Bureau for Public Health shall establish strategies to promote and maintain an arthritis prevention education program in order to raise public awareness, to educate consumers and to educate and train health professionals, teachers and human service providers, to include the following components:

(1) The bureau shall develop strategies for raising public awareness of the causes and nature of arthritis, personal risk factors, the value of prevention and early detection and options for diagnosing and treating the disease that include, but are not limited to, the following:

(A) Community forums;

(B) Health information and risk factor assessment at public events;

(C) Targeting at-risk populations;

(D) Providing reliable information to policymakers; and

(E) Distributing information through county health departments, schools, area agencies on aging, employer wellness programs, physicians, hospitals, health maintenance organizations, women's groups, nonprofit organizations, community-based organizations and departmental offices;

(2) The bureau shall develop strategies for educating consumers about risk factors, diet and exercise, diagnostic procedures and their indications for use, risks and benefits of drug therapies currently approved by the United States Food and Drug Administration, environmental safety and injury prevention and the availability of self-help diagnostic, treatment and rehabilitation services;

(3) The bureau may develop strategies for educating physicians and health professionals and training community service providers on the most up-to-date, accurate scientific and medical information on arthritis prevention, diagnosis and treatment, therapeutic decision-making, including guidelines for detecting and treating the disease in special populations, risks and benefits of medications and research advances;

(4) The bureau may conduct a needs assessment to identify:

(A) Research being conducted within the state;

(B) Available up-to-date technical assistance and educational materials and programs nationwide;

(C) The level of public and professional awareness about arthritis;

(D) The needs of arthritis patients, their families and caregivers;

(E) The needs of health care providers, including physicians, nurses, managed care organizations and other health care providers;

(F) The services available to the arthritis patient;

(G) The existence of arthritis treatment programs;

(H) The existence of arthritis support groups;

(I) The existence of rehabilitation services; and

(5) The bureau may replicate and use successful arthritis programs and enter into contracts and purchase materials or services from organizations with appropriate expertise and knowledge of arthritis.

(b) Based on the needs assessment conducted pursuant to this section, the bureau may develop and maintain a resource guide to include arthritis-related services. This guide shall include a description of diagnostic testing procedures, appropriate indications for their use, drug therapies currently approved by the United States Food and Drug Administration, and a cautionary statement about the current status of arthritis research, prevention and treatment. The statement shall also indicate that the bureau does not license, certify, or in any way approve arthritis programs or centers in the state.

(c) The bureau may promulgate rules in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to implement the provisions of this article.

(d) Nothing in this article may be construed or interpreted to mean that arthritis treatment or arthritis education are required to be provided by the bureau or the council created in section three of this article. Nothing contained in this article may be construed to mandate funding for arthritis education or any of the programs contained in this article or to require any appropriation by the Legislature.

§16-5U-3. Interagency council on arthritis.

(a) There is hereby established the interagency council on arthritis. The Director of Public Health shall chair the council. The council shall have representatives from appropriate state departments and agencies including, but not limited to, the entities with responsibility for aging, health care reform implementation, education and public welfare.

(b) The council shall:

(1) Coordinate arthritis programs conducted by or through the Bureau for Public Health;

(2) Establish a mechanism for sharing information on arthritis among all officials and employees involved in carrying out arthritis-related programs;

(3) Review and coordinate the most promising areas of education, prevention and treatment concerning arthritis;

(4) Assist the Bureau for Public Health and other offices in developing and coordinating plans for education and health promotion on arthritis;

(5) Establish mechanisms to use the results of research concerning arthritis in the development of relevant policies and programs; and

(6) Prepare a report that describes educational initiatives on arthritis and transmit the report to the Legislature and the Governor and make the report available to the public.

(c) The council shall establish and coordinate the advisory panel on arthritis which will provide nongovernmental input regarding the program. Membership shall include, but is not limited to, persons with arthritis, public health educators, arthritis experts, providers of arthritis health care, persons knowledgeable in health promotion and education and representatives of national arthritis organizations or their state and regional affiliates.

§16-5V-1. Title.

This article is known and may be cited as the "West Virginia Emergency Medical Services Retirement System Act."

§16-5V-2. Definitions.

As used in this article, unless a federal law or regulation or the context clearly requires a different meaning:

(a) "Accrued benefit" means on behalf of any member two and six-tenths percent per year of the member’s final average salary for the first 20 years of credited service. Additionally, two percent per year for 21 through 25 years and one and one-half percent per year for each year over 25 years will be credited with a maximum benefit of 67 percent. A member’s accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of §16-5V-12 of this code.

(1) The board may, upon the recommendation of the board’s actuary, increase the employees’ contribution rate to 10 and five-tenths percent should the funding of the plan not reach 70 percent funded by July 1, 2012. The board shall decrease the contribution rate to eight and one-half percent once the plan funding reaches the 70 percent support objective as of any later actuarial valuation date.

(2) Upon reaching the 75 percent actuarial funded level, as of an actuarial valuation date, the board shall increase the two and six-tenths percent to two and three-quarter percent for the first 20 years of credited service. The maximum benefit will also be increased from 67 percent to 90 percent.

(3) For 911 personnel with assets transferred pursuant to §16-5V-6d of this code who did not elect to pay back higher past contributions with interest, "accrued benefit" means, on behalf of the member, two percent per year of the member’s final average salary for all credited service that was credited as a result of transferred assets. Additionally, two and three-quarter percent for the first 20 years of new credited service earned from date of membership in this plan will be credited. Additionally, two percent per year for 21 through 25 years of new credited service earned from date of membership in this plan and one and one-half percent per year for each year over 25 years earned from date of membership in this plan will be credited. A maximum benefit of 90 percent of a member’s final average salary may be paid. A member’s accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of §16-5V-12 of this code.  

(4) For 911 personnel with assets transferred pursuant to §16-5V-6d of this code who did elect to pay back higher past contributions, with interest, for eligible 911 service credit, "accrued benefit" means on behalf of the member two percent per year of the member’s final average salary for all non-911 credited service that was credited as a result of transferred assets. Additionally, two and three-quarter percent for the first 20 years of 911 credited service will be credited. Additionally, two percent per year for 21 through 25 years of 911 credited service and one and one-half percent per year for each year over 25 years of 911 credited service will be credited. A maximum benefit of 90 percent of a member’s final average salary may be paid. A member’s accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of §16-5V-12 of this code.  

(b) "Accumulated contributions" means the sum of all retirement contributions deducted from the compensation of a member, or paid on his or her behalf as a result of covered employment, together with regular interest on the deducted amounts.

(c) "Active military duty" means full-time active duty with any branch of the armed forces of the United States, including service with the National Guard or reserve military forces when the member has been called to active full-time duty and has received no compensation during the period of that duty from any board or employer other than the armed forces.

(d) "Actuarial equivalent" means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the board in accordance with the provisions of this article.

 (e) "Annual compensation" means the wages paid to the member during covered employment within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard to any rules that limit the remuneration included in wages based upon the nature or location of employment or services performed during the plan year plus amounts excluded under Section 414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash or noncash fringe benefits or both, deferred compensation and welfare benefits. Annual compensation for determining benefits during any determination period may not exceed the maximum compensation allowed as adjusted for cost of living in accordance with §5-10D-7 of this code and Section 401(a)(17) of the Internal Revenue Code.

(f) "Annual leave service" means accrued annual leave.

(g) "Annuity starting date" means the first day of the month for which an annuity is payable after submission of a retirement application. For purposes of this subsection, if retirement income payments commence after the normal retirement age, "retirement" means the first day of the month following or coincident with the latter of the last day the member worked in covered employment or the member’s normal retirement age and after completing proper written application for retirement on an application supplied by the board.

(h) "Board" means the Consolidated Public Retirement Board.

(i) "Contributing service" or "contributory service" means service rendered by a member while employed by a participating public employer for which the member made contributions to the plan. Contributory service that was transferred in full from the Public Employees Retirement System will qualify as contributory service in this plan.

(j) "County commission or political subdivision" has the meaning ascribed to it in this code.

(k) "County firefighter" means an individual employed in full-time employment as a firefighter with a county commission.

(l) "Covered employment" means: (1) Employment as a full-time emergency medical technician, emergency medical technician/paramedic, or emergency medical services/registered nurse, and the active performance of the duties required of emergency medical services officers; or (2) employment as a full-time employee of a county 911 public safety answering point; or (3) employment as a full-time county firefighter; or (4) the period of time during which active duties are not performed but disability benefits are received under this article; or (5) concurrent employment by an emergency medical services officer, 911 personnel, or county firefighter in a job or jobs in addition to his or her employment as an emergency medical services officer, 911 personnel, or county firefighter where the secondary employment requires the emergency medical services officer, 911 personnel, or county firefighter to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to this code: Provided, That the emergency medical services officer, 911 personnel, or county firefighter contributes to the fund created in this article the amount specified as the member’s contribution in §16-5V-8 of this code.

(m) "Credited service" means the sum of a member’s years of service, active military duty, disability service, service transferred from the Public Employees Retirement System, and accrued annual and sick leave service.

 (n) "Dependent child" means either:

(1) An unmarried person under age eighteen who is:

(A) A natural child of the member;

(B) A legally adopted child of the member;

(C) A child who at the time of the member’s death was living with the member while the member was an adopting parent during any period of probation; or

(D) A stepchild of the member residing in the member’s household at the time of the member’s death; or

(2) Any unmarried child under age 23:

(A) Who is enrolled as a full-time student in an accredited college or university;

(B) Who was claimed as a dependent by the member for federal income tax purposes at the time of the member’s death; and

(C) Whose relationship with the member is described in paragraph (A), (B), or (C), subdivision (1) of this subsection.

(o) "Dependent parent" means the father or mother of the member who was claimed as a dependent by the member for federal income tax purposes at the time of the member’s death.

(p) "Disability service" means service received by a member, expressed in whole years, fractions thereof or both, equal to one half of the whole years, fractions thereof, or both, during which time a member receives disability benefits under this article.

(q) "Early retirement age" means age 45 or over and completion of 20 years of contributory service.

(r) "Effective date" means January 1, 2008.

(s) "Emergency medical services officer" means an individual employed by the state, county or other political subdivision as a medical professional who is qualified to respond to medical emergencies, aids the sick and injured and arranges or transports to medical facilities, as defined by the West Virginia Office of Emergency Medical Services. This definition is construed to include employed ambulance providers and other services such as law enforcement, rescue, or fire department personnel who primarily perform these functions and are not provided any other credited service benefits or retirement plans. These persons may hold the rank of emergency medical technician/basic, emergency medical technician/paramedic, emergency medical services/registered nurse, or others as defined by the West Virginia Office of Emergency Medical Services and the Consolidated Public Retirement Board.

(t) "Employer error" means an omission, misrepresentation, or deliberate act in violation of relevant provisions of the West Virginia Code, the West Virginia Code of State Rules, or the relevant provisions of both the West Virginia Code and of the West Virginia Code of State Rules by the participating public employer that has resulted in an underpayment or overpayment of contributions required.

(u) "Final average salary" means the average of the highest annual compensation received for covered employment by the member during any five consecutive plan years within the member’s last 10 years of service while employed, prior to any disability payment. If the member did not have annual compensation for the five full plan years preceding the member’s attainment of normal retirement age and during that period the member received disability benefits under this article, then "final average salary" means the average of the monthly salary determined paid to the member during that period as determined under §16-5V-19 of this code multiplied by 12. Final average salary does not include any lump sum payment for unused, accrued leave of any kind or character.

(v) "Full-time employment" means permanent employment of an employee by a participating public employer in a position which normally requires 12 months per year service and requires at least 1,040 hours per year service in that position.

(w) "Fund" means the West Virginia Emergency Medical Services Retirement Fund created by this article.

(x) "Hour of service" means:

(1) Each hour for which a member is paid or entitled to payment for covered employment during which time active duties are performed. These hours shall be credited to the member for the plan year in which the duties are performed; and

(2) Each hour for which a member is paid or entitled to payment for covered employment during a plan year, but where no duties are performed due to vacation, holiday, illness, incapacity including disability, layoff, jury duty, military duty, leave of absence, or any combination thereof and without regard to whether the employment relationship has terminated. Hours under this subdivision shall be calculated and credited pursuant to West Virginia Division of Labor rules. A member will not be credited with any hours of service for any period of time he or she is receiving benefits under §16-5V-19 or §16-5V-20 of this code; and

(3) Each hour for which back pay is either awarded or agreed to be paid by the employing county commission or political subdivision, irrespective of mitigation of damages. The same hours of service shall not be credited both under subdivision (1) or subdivision (2) of this subsection and under this subdivision. Hours under this paragraph shall be credited to the member for the plan year or years to which the award or agreement pertains, rather than the plan year in which the award, agreement, or payment is made.

(y) "Medical examination" means an in-person or virtual examination of a member’s physical or mental health, or both, by a physician or physicians selected or approved by the board; or, at the discretion of the board, a medical record review of the member’s physical or mental health, or both, by a physician selected or approved by the board.

(z) “Member" means either: (1) A person first hired as an emergency medical services officer by an employer which is a participating public employer of the Emergency Medical Services Retirement System after the effective date of this article, as defined in subsection (r) of this section; or (2) an emergency medical services officer of an employer which is a participating public employer of the Public Employees Retirement System first hired prior to the effective date and who elects to become a member pursuant to this article; or (3) a person first hired by a county 911 public safety answering center after the participating public employer elects to participate in the Emergency Medical Services Retirement System; or (4) a county firefighter hired on or after June 10, 2022; or (5) a county firefighter of an employer which is a participating public employer of the Public Employees Retirement System first hired prior to June 10, 2022, and who elects to become a member pursuant to §16-5V-6a of this code; or (6) a person first hired by a county 911 public safety answering center prior to July 1, 2022, and who elects to become a member pursuant to §16-5V-6c of this code. A member shall remain a member until the benefits to which he or she is entitled under this article are paid or forfeited.

(aa) "Monthly salary" means the W-2 reportable compensation received by a member during the month.

(bb) "Normal form" means a monthly annuity which is one twelfth of the amount of the member’s accrued benefit which is payable for the member’s life. If the member dies before the sum of the payments he or she receives equals his or her accumulated contributions on the annuity starting date, the named beneficiary shall receive in one lump sum the difference between the accumulated contributions at the annuity starting date and the total of the retirement income payments made to the member.

(cc) "Normal retirement age" means the first to occur of the following:

(1) Attainment of age 50 years and the completion of 20 or more years of regular contributory service, excluding active military duty, disability service, and accrued annual and sick leave service;

(2) While still in covered employment, attainment of at least age 50 years and when the sum of current age plus regular contributory years of service equals or exceeds 70 years;

(3) While still in covered employment, attainment of at least age 60 years and completion of 10 years of regular contributory service; or

(4) Attainment of age 62 years and completion of five or more years of regular contributory service.

(dd) "Participating public employer" means: (1) Any county commission, political subdivision, or county 911 public safety answering point in the state which has elected to cover its emergency medical services officers or 911 personnel, as defined in this article, under the West Virginia Emergency Medical Services Retirement System; or (2) any county commission who employs county firefighters.

(ee) "Plan" means the West Virginia Emergency Medical Services Retirement System established by this article.

(ff) "Plan year" means the 12-month period commencing on January 1 of any designated year and ending the following December 31.

(gg) "Political subdivision" means a county, city, or town in the state; any separate corporation or instrumentality established by one or more counties, cities, or towns, as permitted by law; any corporation or instrumentality supported in most part by counties, cities, or towns; and any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities, or towns: Provided, That any public corporation established under §7-15-4 of this code is considered a political subdivision solely for the purposes of this article.

(hh) "Public Employees Retirement System" means the West Virginia Public Employees Retirement System created by West Virginia Code.

(ii) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the board adopts in accordance with the provisions of this article.

(jj) "Required beginning date" means April 1 of the calendar year following the later of: (1) The calendar year in which the member attains age 70.5 (if born before July 1, 1949) or age 72 (if born after June 30, 1949); or (2) the calendar year in which he or she retires or otherwise separates from covered employment.

(kk) "Retirant" means any member who commences an annuity payable by the plan.

(ll) "Retire" or "retirement" means a member’s withdrawal from the employ of a participating public employer and the commencement of an annuity by the plan.

(mm) "Retirement income payments" means the monthly retirement income payments payable under the plan.

(nn) "Spouse" means the person to whom the member is legally married on the annuity starting date.

(oo) "Surviving spouse" means the person to whom the member was legally married at the time of the member’s death and who survived the member.

(pp) "Totally disabled" means a member’s inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months.

For purposes of this subsection:

(1) A member is totally disabled only if his or her physical or mental impairment or impairments is so severe that he or she is not only unable to perform his or her previous work as an emergency medical services officer, 911 personnel, or county firefighter but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work. For purposes of this article, substantial gainful employment is the same definition as used by the United States Social Security Administration.

(2) "Physical or mental impairment" is an impairment that results from an anatomical, physiological, or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques. The board may require submission of a member’s annual tax return for purposes of monitoring the earnings limitation.

(qq) "Year of service" means a member shall, except in his or her first and last years of covered employment, be credited with years of service credit based upon the hours of service performed as covered employment and credited to the member during the plan year based upon the following schedule:

 During a member’s first and last years of covered employment, the member shall be credited with one twelfth of a year of service for each month during the plan year in which the member is credited with an hour of service for which contributions were received by the fund. A member is not entitled to credit for years of service for any time period during which he or she received disability payments under §16-5V-19 or §16-5V-20 of this code. Except as specifically excluded, years of service include covered employment prior to the effective date.

Years of service which are credited to a member prior to his or her receipt of accumulated contributions upon termination of employment pursuant to §16-5V-18 of this code or §5-10-30 of this code shall be disregarded for all purposes under this plan unless the member repays the accumulated contributions with interest pursuant to section §16-5V-18 of this code or has, prior to the effective date, made the repayment pursuant to §5-10-18 of this code.

(rr) "911 personnel" means an individual employed in full-time employment with a county 911 public safety answering point.

§16-5V-3. Meaning of terms.

Any term used in this article has the same meaning as when used in a comparable context in the laws of the United States, unless a different meaning is clearly required. Any reference in this article to the Internal Revenue Code means the Internal Revenue Code of 1986, as amended.

§16-5V-4. Creation and administration of West Virginia Emergency Medical Services Retirement System; specification of actuarial assumptions.

There is hereby created the West Virginia Emergency Medical Services Retirement System. The purpose of this system is to provide for the orderly retirement of emergency medical services officers who become superannuated because of age or permanent disability and to provide certain survivor death benefits, and it is contemplated that substantially all of the members of the retirement system shall be qualified public safety employees as defined in section two of this article. The retirement system shall come into effect January 1, 2008: Provided, That at least seventy percent of all eligible emergency medical services officers and at least eighty-five percent of the eligible emergency medical services officers who are currently active members of the Public Employees Retirement System elect to participate in this plan by December 31, 2007. If this level of participation is not reached, then all of the provisions of this article are void and of no force and effect. All business of the system shall be transacted in the name of the West Virginia Emergency Medical Services Retirement System. The board shall specify and adopt all actuarial assumptions for the plan at its first meeting of every calendar year or as soon thereafter as may be practicable, which assumptions shall become part of the plan.

§16-5V-5. Article to be liberally construed; supplements federal Social Security; federal qualification requirements.

(a) The provisions of this article shall be liberally construed so as to provide a general retirement system for emergency medical services officers, county firefighters, or 911 personnel eligible to retire under the provisions of this plan. Nothing in this article may be construed to permit a county to substitute this plan for federal Social Security now in force in West Virginia.

(b) The board shall administer the plan in accordance with its terms and may construe the terms and determine all questions arising in connection with the administration, interpretation and application of the plan. The board may sue and be sued, contract and be contracted with and conduct all the business of the system in the name of the plan. The board may employ those persons it considers necessary or desirable to administer the plan. The board shall administer the plan for the exclusive benefit of the members and their beneficiaries subject to the specific provisions of the plan.

(c) The plan is intended to meet the federal qualification requirements of Section 401(a) and related sections of the Internal Revenue Code as applicable to governmental plans. Notwithstanding any other provision of state law, the board shall administer the plan to fulfill this intent for the exclusive benefit of the members and their beneficiaries. Any provision of this article referencing or relating to these federal qualification requirements is effective as of the date required by federal law. The board may propose rules for promulgation and amend or repeal conflicting rules in accordance with the authority granted to the board pursuant to §5-10D-1 of this code to assure compliance with the requirements of this section.

(d) The board shall determine any costs incurred by the board attributable to the voluntary transfer of members of the Public Employees Retirement System to the plan pursuant to the provisions of §16-5V-6c and §16-5V-6d of this code. These costs include the cost to make necessary modifications to the existing line of business computer system, and any personnel costs, including employee benefits. The board shall determine the pro rata share of each participating public 911 employer liable for these costs pursuant to this article. Each participating 911 employer shall pay the board its pro rata share. The board is authorized to receive funds from the participating public 911 employers as required by this section for purposes of paying costs as set forth in this article.

§16-5V-6. Members.

(a) Any emergency medical services officer, county firefighter, or 911 personnel hired on or after the effective date the participating public employer elected to become a participating public employer shall be a member of this retirement plan as a condition of employment and upon membership does not qualify for membership in any other retirement system administered by the board, so long as he or she remains employed in covered employment: Provided, That any emergency medical services officer, county firefighter, or 911 personnel who has concurrent employment in an additional job or jobs which would require the emergency medical services officer, county firefighter, or 911 personnel to be a member of the West Virginia Deputy Sheriffs Retirement System, the West Virginia Municipal Police Officers and Firefighters Retirement System, or the West Virginia Natural Resources Police Officer Retirement System shall participate in only one retirement system administered by the board, and the retirement system applicable to the concurrent employment for which the employee has the earliest date of hire shall prevail.

(b) Any emergency medical services officer employed in covered employment by an employer which is currently a participating public employer of the Public Employees Retirement System shall notify in writing both the county commission in the county or officials in the political subdivision in which he or she is employed and the board of his or her desire to become a member of the plan by December 31, 2007. Any emergency medical services officer who elects to become a member of the plan ceases to be a member, or have any credit for covered employment in any other retirement system administered by the board, and shall continue to be ineligible for membership in any other retirement system administered by the board so long as the emergency medical services officer remains employed in covered employment by an employer which is currently a participating public employer of this plan: Provided, That any emergency medical services officer who does not affirmatively elect to become a member of the plan continues to be eligible for any other retirement system as is, from time to time, offered to other county employees but is ineligible for this plan regardless of any subsequent termination of employment and rehire.

(c) Any emergency medical services officer who was employed as an emergency medical services officer prior to the effective date, but was not employed on the effective date of this article, shall become a member upon rehire as an emergency medical services officer. For purposes of this section, the member’s years of service and credited service prior to the effective date shall not be counted for any purposes under this plan unless the emergency medical services officer has not received the return of his or her accumulated contributions in the Public Employees Retirement System pursuant to §5-10-30 of this code. The member may request in writing to have his or her accumulated contributions and employer contributions from covered employment in the Public Employees Retirement System transferred to the plan. If the conditions of this subsection are met, all years of the emergency medical services officer’s covered employment shall be counted as years of service for the purposes of this article.

(d) Any emergency medical services officer employed in covered employment on the effective date of this article who has timely elected to transfer into this plan as provided in subsection (b) of this section shall be given credited service at the time of transfer for all credited service then standing to the emergency medical services officer’s service credit in the Public Employees Retirement System regardless of whether the credited service (as that term is defined in §5-10-2 of this code) was earned as an emergency medical services officer. All credited service standing to the transferring emergency medical services officer’s credit in the Public Employees Retirement System at the time of transfer into this plan shall be transferred into the plan created by this article and the transferring emergency medical services officer shall be given the same credit for the purposes of this article for all service transferred from the Public Employees Retirement System as that transferring emergency medical services officer would have received from the Public Employees Retirement System as if the transfer had not occurred. In connection with each transferring emergency medical services officer receiving credit for prior employment as provided in this subsection, a transfer from the Public Employees Retirement System to this plan shall be made pursuant to the procedures described in this article: Provided, That any member of this plan who has elected to transfer from the Public Employees Retirement System into this plan pursuant to subsection (b) of this section may not, after having transferred into and becoming an active member of this plan, reinstate to his or her credit in this plan any service credit relating to periods in which the member was not in covered employment as an emergency medical services officer and which service was withdrawn from the Public Employees Retirement System prior to his or her elective transfer into this plan.

(e) Once made, the election made under this section is irrevocable. All emergency medical services officers employed by an employer which is a participating public employer of the Public Employees Retirement System after the effective date and emergency medical services officers electing to become members as described in this section shall be members as a condition of employment and shall make the contributions required by this article.

(f) Notwithstanding any other provisions of this article, any individual who is a leased employee is not eligible to participate in the plan. For purposes of this plan, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final power to decide the question.

§16-5V-7. Creation of Fund; investments; actuarial valuations.

(a) There is hereby created the "West Virginia Emergency Medical Services Retirement Fund" for the benefit of the members of the retirement system created pursuant to this article and the dependents of any deceased or retired member of the system.

(b) All moneys paid into and accumulated in the fund, except amounts designated by the board for payment of benefits as provided in this article, shall be held in trust and invested in the consolidated pensions fund administered by the West Virginia Investment Management Board as provided by law.

(c) The board shall employ a competent actuary or actuarial firm to prepare an actuarial valuation of the assets and liabilities of the fund. The actuarial valuation period shall coincide with the fiscal year of the state.

§16-5V-8. Members' contributions; employer contributions.

(a) There shall be deducted from the monthly salary of each member and paid into the fund an amount equal to eight and one-half percent of his or her monthly salary. An additional amount shall be paid to the fund by the county commission or political subdivision in which the member is employed in covered employment in an amount determined by the board: Provided, That in no year may the total of the employer contributions provided in this section, to be paid by the county commission or political subdivision, exceed 10 and one-half percent of the total payroll for the members in the employ of the county commission or political subdivision.

(b) Any active member who has concurrent employment in an additional job or jobs and the additional employment requires the member to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to §5-10D-1 et seq. of this code shall contribute to the fund the sum of eight and one-half percent of his or her monthly salary earned as an emergency medical services officer, county firefighter, or 911 personnel as well as the sum of eight and one-half percent of his or her monthly salary earned from any additional employment which additional employment requires the emergency medical services officer, county firefighter, or 911 personnel to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to §5-10D-1 et seq. of this code. An additional percent of the monthly salary of each member shall be paid to the fund by the concurrent employer by which the member is employed in an amount determined by the board: Provided, That in no year may the total of the employer contributions provided in this section, to be paid by the concurrent employer, exceed 10 and one-half percent of the payroll for the concurrent member employees.

(c) All required deposits shall be remitted to the board no later than 15 days following the end of the calendar month for which the deposits are required. If the board upon the recommendation of the board actuary finds that the benefits provided by this article can be actuarially funded with a lesser contribution, then the board shall reduce the required member and employer contributions proportionally. Any county commission or political subdivision which fails to make any payment due the Emergency Medical Services Retirement Fund by the fifteenth day following the end of each calendar month in which contributions are due may be required to pay the actuarial rate of interest lost on the total amount owed for each day the payment is delinquent. Accrual of the loss of earnings owed by the delinquent county commission or political subdivision commences after the fifteenth day following the end of the calendar month in which contributions are due and continues until receipt of the delinquent amount. Interest compounds daily and the minimum surcharge is $50.

§16-5V-8a. Correction of errors; underpayments; overpayments.

 (a) General rule: Upon learning of any errors, the board shall correct errors in the retirement system in a timely manner whether the individual, entity or board was at fault for the error with the intent of placing the affected individual, entity and retirement board in the position each would have been in had the error not occurred.

(b) Underpayments to the plan: Any error resulting in an underpayment to the retirement plan, may be corrected by the member or retirant remitting the required employee contribution or underpayment and the participating public employer remitting the required employer contribution or underpayment. Interest shall accumulate in accordance with the legislative rule 162 CSR 7 concerning retirement board refund, reinstatement, retroactive service, loan and correction of error interest factors and any accumulating interest owed on the employee and employer contributions or underpayments resulting from an employer error shall be the responsibility of the participating public employer. The participating public employer may remit total payment and the employee reimburse the participating public employer through payroll deduction over a period equivalent to the time period during which the employer error occurred. If the correction of an error involving an underpayment to the retirement system will result in the plan paying the retirant an additional amount, this additional payment shall be made only after the board receives full payment of all required employee and employer contributions or underpayments, including interest.

(c) Overpayments to the plan by an employer: When mistaken or excess employer contributions or other employer overpayments have been made to the plan, the board shall credit the employer with an amount equal to the overpayment, to be offset against the employer’s future liability for employer contributions to the plan. If the employer has no future liability for employer contributions to the plan, the board shall refund the erroneous contributions directly to the employer. Earnings or interest shall not be returned, offset or credited to the employer under any of the means used by the board for returning employer overpayments to the retirement system.

(d) Overpayments to the plan by an employee: When mistaken or excess employee contributions or overpayments have been made to the plan, the board shall have sole authority for determining the means of return, offset or credit to or for the benefit of the individual making the mistaken or excess employee contribution of the amounts, and may use any means authorized or permitted under the provisions of section 401(a), et seq. of the Internal Revenue Code and guidance issued thereunder applicable to governmental plans. Alternatively, in its full and complete discretion, the board may require the participating public employer employing the individual to pay the individual the amounts as wages, with the board crediting the participating public employer with a corresponding amount to offset against its future contributions to the plan. If the employer has no future liability for employer contributions to the plan, the board shall refund said amount directly to the employer: Provided, That the wages paid to the individual shall not be considered compensation for any purposes of this article. Earnings or interest shall not be returned, offset, or credited under any of the means used by the board for returning employee overpayments.

(e) Overpayments from the plan: If any error results in any member, retirant, beneficiary, entity or other individual receiving from the system more than he would have been entitled to receive had the error not occurred the board upon learning of the error shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the member, retirant, beneficiary, entity or other person who received the overpayment from the plan shall repay the amount of any overpayment to the plan in any manner permitted by the board. If the member, retirant, beneficiary or other person who received the overpayment is deceased and an annuity or lump sum benefit is still payable, the amount of the remaining overpayment shall be offset against the benefit payment owed in a manner consistent with the board’s error correction policy. Interest shall not accumulate on any corrective payment made to the plan pursuant to this subsection.

(f) Underpayments from the retirement system: If any error results in any member, retirant, beneficiary, entity or other individual receiving from the plan less than he would have been entitled to receive had the error not occurred, the board, upon learning of the error, shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the board shall pay the amount of such underpayment to the member, retirant, beneficiary or other individual in a lump sum. Interest shall not be paid on any corrective payment made by the plan pursuant to this subsection.

(g) Eligibility errors: If the board finds that an individual, employer, or both individual and employer, participating in the plan is not eligible to participate, the board shall notify the individual and his or her employer of the determination and terminate participation in the plan. Any erroneous payments to the plan shall be returned to the employer and individual in accordance with the methods described in subsections (c) and (d) of this section and any erroneous payments from the plan to such individual shall be returned to the plan in accordance with the methods described in subsection (e) of this section. Any erroneous service credited to the individual shall be removed. If the board determines that an individual or employer, or both, has not been participating in the plan, but was eligible to and required to be participating in the plan, the board shall as soon as practicable notify the individual and his or her employer of the determination, and the individual and his or her employer shall prospectively commence participation in the plan as soon as practicable. Service credit for service prior to the date on which the individual prospectively commences participation in the plan shall be granted only if the board receives the required employer and employee contributions for such service, in accordance with subsection (b) of this section, including interest.

§16-5V-9. Transfer from Public Employees Retirement System.

(a) The Consolidated Public Retirement Board shall, within one hundred eighty days of the effective date of the transfer of an emergency medical services officer from the Public Employees Retirement System to the plan, transfer assets from the Public Employees Retirement System Trust Fund into the West Virginia Emergency Medical Services Trust Fund.

(b) Except as provided in subsection (e) of this section, the amount of assets to be transferred for each transferring emergency medical services officer shall be computed as of January 1, 2008, using July 1, 2007, actuarial valuation of the Public Employees Retirement System, and updated with seven and one-half percent annual interest to the date of the actual asset transfer. The market value of the assets of the transferring emergency medical services officer in the Public Employees Retirement System shall be determined as of the end of the month preceding the actual transfer. To determine the computation of the asset share to be transferred the board shall:

(1) Compute the market value of the Public Employees Retirement System assets as of July 1, 2007, actuarial valuation date under the actuarial valuation approved by the board;

(2) Compute the actuarial accrued liabilities for all Public Employees Retirement System retirees, beneficiaries, disabled retirees and terminated inactive members as of July 1, 2007, actuarial valuation date;

(3) Compute the market value of active member assets in the Public Employees Retirement System as of July 1, 2007, by reducing the assets value under subdivision (1) of this subsection by the inactive liabilities under subdivision (2) of this subsection;

(4) Compute the actuarial accrued liability for all active Public Employees Retirement System members as of July 1, 2007, actuarial valuation date approved by the board;

(5) Compute the funded percentage of the active members' actuarial accrued liabilities under the Public Employees Retirement System as of July 1, 2007, by dividing the active members' market value of assets under subdivision (3) of this subsection by the active members' actuarial accrued liabilities under subdivision (4) of this subsection;

(6) Compute the actuarial accrued liabilities under the Public Employees Retirement System as of July 1, 2007, for active emergency medical services officers transferring to the Emergency Medical Services Retirement System;

(7) Determine the assets to be transferred from the Public Employees Retirement System to the Emergency Medical Services Retirement System by multiplying the active members' funded percentage determined under subdivision (5) of this subsection by the transferring active members' actuarial accrued liabilities under the Public Employees Retirement System under subdivision (6) of this subsection and adjusting the asset transfer amount by interest at seven and five-tenths percent for the period from the calculation date of July 1, 2007, through the first day of the month in which the asset transfer is to be completed.

(c) Once an emergency medical services officer has elected to transfer from the Public Employees Retirement System, transfer of that amount as calculated in accordance with the provisions of subsection (b) of this section, or subsection (e) if applicable, by the Public Employees Retirement System shall operate as a complete bar to any further liability to the Public Employees Retirement System and constitutes an agreement whereby the transferring emergency medical services officer forever indemnifies and holds harmless the Public Employees Retirement System from providing him or her any form of retirement benefit whatsoever until that emergency medical services officer obtains other employment which would make him or her eligible to reenter the Public Employees Retirement System with no credit whatsoever for the amounts transferred to the Emergency Medical Services Retirement System.

(d) Eligible emergency medical services officers that transfer from plans other than the Public Employees Retirement System shall have service recognized under this plan through the purchase of the service through payment by the member of sixty percent of the actuarial accrued liabilities which would result if the service is credited under the Emergency Medical Services Retirement System subject to the following:

(1) The service may be purchased in one-year increments of eligible service or for the total period of eligible service;

(2) Payment must begin within twelve months of the effective date of this article;

(3) Payment must be made in either a one-time lump sum payment received by the board no later than December 31, 2008, or in regular installment payments payable over sixty months with the initial installment received by the board on or before December 31, 2008;

(4) The rate of interest applicable to regular installment payments for the purchase of service shall be the actuarial interest rate assumption as approved by the board for completing the actuarial valuation for the plan year immediately preceding the first day of the plan year in which the service purchase is made, compounded per annum;

(5) Once payments commence, selection of the period of service being purchased may not be amended; and

(6) Service will be credited only upon receipt by the board of all payments due.

(e) Notwithstanding any provision of this code to the contrary, any Emergency Medical Services director who: (1) Is an active member of the Public Employees Retirement System; and (2)has, or obtains within one year of the effective date of the amendments to this section enacted during the 2012 regular session of the Legislature, basic or higher emergency management technician certification, is eligible to transfer service credit from the Public Employees Retirement System to the Emergency Medical Services Retirement System, upon payment of associated costs by the transferring director. The board shall compute the actuarially appropriate amount of any increased benefit cost of transfer to be borne by the transferring director to be paid according to terms established by the board. Any Emergency Medical Services director who transfers to the Emergency Medical Services Retirement System pursuant to the provisions of this subsection shall apply for the transfer to the board within one year of the effective date of the amendments to this section enacted during the 2012 regular session of the Legislature. Upon receipt of the total payment of all associated costs by the transferring director, the board shall compute the amount of assets to be transferred from the Public Employees Retirement System to the Emergency Medical Retirement System and shall transfer the assets within six months of the receipt of the application. Any director transferring into the retirement system as provided in this subsection is prohibited from retiring within three years of transfer.

§16-5V-10. Notice requirements; test case.

(a) Each county commission or political subdivision shall prepare a written notice to be delivered to each emergency medical services officer employed prior to July 1, 2007. This notice shall clearly and accurately explain the benefits, financial implications and consequences to an emergency medical services officer of electing to participate in the retirement plan created in this article, including the consequences and financial implications in regard to the benefits under the Public Employees Insurance Plan as set forth in this code for those emergency medical services officers employed by a county commission or political subdivision which participates in that insurance plan. This notice shall be distributed to each emergency medical services officer and the county or political subdivision shall obtain a signed receipt from each emergency medical services officer acknowledging that the emergency medical services officer was provided a copy of the notice required in this subsection. If an emergency medical services officer makes the election provided in section six of this article, he or she shall be considered to have made a voluntary, informed decision in regard to the election to participate in the retirement system created in this article.

(b) Nothing in this section may be construed to alter, affect or change any of the rights and benefits of any emergency medical services officer who has insurance coverage under article sixteen, chapter five of this code as a result of being a spouse or dependant of a participant who is the primary insured under article sixteen, chapter five of this code.

(c) Nothing contained in this section may be construed to affect or pertain to any life insurance coverage under article sixteen, chapter five of this code.

§16-5V-11. Retirement; commencement of benefits.

(a) Except for duty disability retirement, no member may retire before January 1, 2011.

(b) On or after the date a member attains early or normal retirement age, a member may retire and commence to receive retirement income payments on the first day of the calendar month following termination of employment and receipt of his or her written application for retirement in an amount as provided under this article: Provided, That retirement income payments under this plan are subject to the provisions of this article. Upon receipt of a request for estimation of benefits, the board shall promptly provide the member with an explanation of his or her optional forms of retirement benefits and the estimated gross monthly annuity. Upon receipt of properly executed retirement application forms from the member, the board shall process member's request for and commence payments as soon as administratively feasible.

§16-5V-12. Federal law maximum benefit limitations.

Notwithstanding any other provision of this article or state law, the board shall administer the retirement system in compliance with the limitations of Section 415 of the Internal Revenue Code and regulations under that section, to the extent applicable to governmental plans (hereafter sometimes referred to as the "415 limitation(s)" or "415 dollar limitation(s)"), so that the annual benefit payable under this system to a member shall not exceed those limitations. Any annual benefit payable under this system shall be reduced or limited if necessary to an amount which does not exceed those limitations. The extent to which any annuity or other annual benefit payable under this retirement system shall be reduced as compared with the extent to which an annuity, contributions or other benefits under any other defined benefit plans or defined contribution plans required to be taken into consideration under Section 415 of the Internal Revenue Code shall be reduced, shall be proportional on a percentage basis to the reductions made in such other plans administered by the board and required to be so taken into consideration under Section 415, unless a disproportionate reduction is determined by the board to maximize the aggregate benefits payable to the member. If the reduction is under this retirement system, the board shall advise affected members of any additional limitation on the annuities or other annual benefit required by this section. For purposes of the 415 limitations, the "limitation year" shall be the calendar year. The 415 limitations are incorporated herein by reference, except to the extent the following provisions may modify the default provisions thereunder:

(a) The annual adjustment to the 415 dollar limitations made by Section 415(d) of the Internal Revenue Code and the regulations thereunder shall apply for each limitation year. The annual adjustments to the dollar limitations under Section 415(d) of the Internal Revenue Code which become effective: (i) After a retirant's severance from employment with the employer; or (ii) after the annuity starting date in the case of a retirant who has already commenced receiving benefits, will apply with respect to a retirant's annual benefit in any limitation year. A retirant's annual benefit payable in any limitation year from this retirement system shall in no event be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code and the regulations thereunder.

(b) For purposes of this section, the "annual benefit" means a benefit that is payable annually in the form of a straight life annuity. Except as provided below, where a benefit is payable in a form other than a straight life annuity, the benefit shall be adjusted to an actuarially equivalent straight life annuity that begins at the same time as such other form of benefit, using factors prescribed in the 415 limitation regulations, before applying the 415 limitations. No actuarial adjustment to the benefit shall be made for: (1) Survivor benefits payable to a surviving spouse under a qualified joint and survivor annuity to the extent such benefits would not be payable if the member's benefit were paid in another form; (2) benefits that are not directly related to retirement benefits (such as a qualified disability benefit, preretirement incidental death benefits, and post-retirement medical benefits); or (3) the inclusion in the form of benefit of an automatic benefit increase feature, provided the form of benefit is not subject to Section 417(e)(3) of the Internal Revenue Code and would otherwise satisfy the limitations of this article, and the plan provides that the amount payable under the form of benefit in any limitation year shall not exceed the limits of this article applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code. For this purpose an automatic benefit increase feature is included in a form of benefit if the form of benefit provides for automatic, periodic increases to the benefits paid in that form.

(c) Adjustment for benefit forms not subject to Section 417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection if the form of the member's benefit is either: (1) A nondecreasing annuity (other than a straight life annuity) payable for a period of not less than the life of the member (or, in the case of a qualified preretirement survivor annuity, the life of the surviving spouse); or (2) an annuity that decreases during the life of the member merely because of: (i) The death of the survivor annuitant (but only if the reduction is not below fifty percent of the benefit payable before the death of the survivor annuitant); or (ii) the cessation or reduction of Social Security supplements or qualified disability payments (as defined in Section 411(a)(9) of the Internal Revenue Code). The actuarially equivalent straight life annuity is equal to the greater of: (I) The annual amount of the straight life annuity (if any) payable to the member under the plan commencing at the same annuity starting date as the member's form of benefit; and (II) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date.

(d) Adjustment for benefit forms subject to Section 417(e)(3). -- The straight life annuity that is actuarially equivalent to the member's form of benefit shall be determined under this subsection if the form of the member's benefit is other than a benefit form described in subdivision (c) of this section. In this case, the actuarially equivalent straight life annuity shall be determined as follows: The actuarially equivalent straight life annuity is equal to the greatest of: (1) The annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using the interest rate specified in this retirement system and the mortality table (or other tabular factor) specified in this retirement system for adjusting benefits in the same form; (2) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using a five and a half percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date; and (3) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member's form of benefit, computed using the applicable interest rate defined in Treasury Regulation §1.417(e)-1(d)(3) and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), divided by 1.05.

(e) Benefits payable prior to age sixty-two. --

(1) Except as provided in paragraphs (2) and (3) of this subdivision, if the member's retirement benefits become payable before age sixty-two, the 415 dollar limitation prescribed by this section shall be reduced in accordance with regulations issued by the Secretary of the Treasury pursuant to the provisions of Section 415(b) of the Internal Revenue Code, so that the limitation (as so reduced) equals an annual straight life benefit (when the retirement income benefit begins) which is equivalent to an annual benefit in the amount of the applicable dollar limitation of Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted pursuant to Section 415(d) of the Internal Revenue Code) beginning at age sixty-two.

(2) The limitation reduction provided in paragraph (1) of this subdivision shall not apply if the member commencing retirement benefits before age sixty-two is a qualified participant. A qualified participant for this purpose is a participant in a defined benefit plan maintained by a state, or any political subdivision of a state, with respect to whom the service taken into account in determining the amount of the benefit under the defined benefit plan includes at least fifteen years of service: (i) As a full-time employee of any police or fire department organized and operated by the state or political subdivision maintaining the defined benefit plan to provide police protection, firefighting services or emergency medical services for any area within the jurisdiction of such state or political subdivision; or (ii) as a member of the Armed Forces of the United States.

(3) The limitation reduction provided in paragraph (1) of this subdivision shall not be applicable to preretirement disability benefits or preretirement death benefits.

(4) For purposes of adjusting the 415 dollar limitation for benefit commencement before age sixty-two or after age sixty-five (if the plan provides for such adjustment), no adjustment is made to reflect the probability of a member's death: (i) After the annuity starting date and before age sixty-two; or (ii) after age sixty-five and before the annuity starting date.

(f) Adjustment when member has less than ten years of participation. -- In the case of a member who has less than ten years of participation in the retirement system (within the meaning of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar limitation (as adjusted pursuant to Section 415(d) of the Internal Revenue Code and subdivision (e) of this section) shall be reduced by multiplying the otherwise applicable limitation by a fraction, the numerator of which is the number of years of participation in the plan (or one, if greater), and the denominator of which is ten. This adjustment shall not be applicable to preretirement disability benefits or preretirement death benefits.

(g) The application of the provisions of this section shall not cause the maximum annual benefit provided to a member to be less than the member's accrued benefit as of December 31, 2008 (the end of the limitation year that is immediately prior to the effective date of the final regulations for this retirement system as defined in Treasury Regulation §1.415(a)-1(g)(2)), under provisions of the retirement system that were both adopted and in effect before April 5, 2007, provided that such provisions satisfied the applicable requirements of statutory provisions, regulations and other published guidance relating to Section 415 of the Internal Revenue Code in effect as of December 31, 2008, as described in Treasury Regulation §1.415(a)-1(g)(4). If additional benefits are accrued for a member under this retirement system after January 1, 2009, then the sum of the benefits described under the first sentence of this subdivision and benefits accrued for a member after January 1, 2009, must satisfy the requirements of Section 415, taking into account all applicable requirements of the final 415 Treasury Regulations.

§16-5V-13. Federal law minimum required distributions.

The requirements of this section apply to any distribution of a member’s or beneficiary’s interest and take precedence over any inconsistent provisions of this plan. This section applies to plan years beginning after December 31, 1986. Notwithstanding anything in the plan to the contrary, the payment of benefits under this article shall be determined and made in accordance with section 401(a)(9) of the Internal Revenue Code and federal regulations promulgated thereunder as applicable to governmental plans, including without limitation the minimum distribution incidental benefit (MDIB) requirement of section 401(a)(9)(G) and the regulations thereunder, and the incidental benefit rule of section 1.401-1(b)(1)(i) of the regulations. Any term used in this article has the same meaning as when used in a comparable context in section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder unless a different meaning is clearly required by the context or definition in this article. The following provisions apply to payments of benefits required under this article:

(a) The payment of benefits under the plan to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under section 401(a)(9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her beneficiary: Provided, That the requirements of this section may not be construed to grant a right to a form of benefit which is not otherwise available to a particular member under this retirement system: Provided, however, That if the member elects an annuity option which provides survivor benefits to a beneficiary who is not the member’s spouse, and the annuity option elected would provide survivor payments that exceed the applicable percentage permitted by the MDIB regulations under section 401(a)(9) of the Internal Revenue Code, the member’s annuity election shall be changed to the highest survivor annuity option offered under this plan which satisfies the MDIB regulations. Benefit payments under this section shall not be delayed pending, or contingent upon, receipt of an application for retirement from the member.

(b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the plan has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his or her death.

(c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the plan is to be distributed by December 31 of the calendar year containing the fifth anniversary of the member’s death, unless the provisions of subsection (d) of this section apply.

(d) If a member dies before distribution to him or her has commenced, and the member’s interest is eligible to be paid in the form of a survivor annuity to a designated beneficiary, distributions are to be made over the life of that beneficiary or over a period certain not greater than the life expectancy of that beneficiary, commencing on or before the following:

(1) December 31 of the calendar year immediately following the calendar year in which the member died; or

(2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving 100 percent of the survivor benefit, distributions are to commence on or before the later of:

(A) December 31 of the calendar year in which the member would have attained age 70.5 (if born before July 1, 1949) or age 72 (if born after June 30, 1949); or

(B) December 31 of the calendar year immediately following the calendar year in which the member died.

(e) If a member dies before distribution to him or her has commenced and the survivor annuity provisions of subsection (d) of this section are not applicable, any designated beneficiary who is eligible to receive a distribution pursuant to the provisions of subsection (c) of this section may elect to have life expectancy treatment apply to the distribution for purposes of determining whether any portion of the distribution is an eligible rollover distribution: Provided, That any such election shall not delay the required distribution of the deceased member’s entire interest in the retirement system beyond December 31 of the calendar year containing the fifth anniversary of the member’s death as required by subsection (c) of this section: Provided, however, That the election is timely made in a form acceptable to the board on or before the following:

(1) December 31 of the calendar year immediately following the calendar year in which the member died; or

(2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is 100 percent of the survivor benefit, election of life expectancy treatment must be made on or before the earlier of (A) or (B) below:

(A) The later of: (i) December 31 of the calendar year immediately following the calendar year in which the member died; or (ii) December 31 of the calendar year in which the member would have attained age 70.5 (if born before July 1, 1949) or age 72 (if born after June 30, 1949); or

(B) October 31 of the calendar year containing the fifth anniversary of the member’s death.

§16-5V-14. Direct rollovers.

Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee's election under this plan, a distributee may elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. For purposes of this section, the following definitions apply:

(1) "Eligible rollover distribution" means any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include any of the following: (A) Any distribution that is one of a series of substantially equal periodic payments not less frequently than annually made for the life or life expectancy of the distributee or the joint lives or the joint life expectancies of the distributee and the distributee's designated beneficiary, or for a specified period of ten years or more; (B) any distribution to the extent the distribution is required under Section 401(a)(9) of the Internal Revenue Code; and (C) any hardship distribution described in Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code. A portion of a distribution shall not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includable in gross income. However, this portion may be paid only to an individual retirement account or annuity described in Section 408(a) or (b) of the Internal Revenue Code (including a Roth IRA described in Section 408A of the Internal Revenue Code), or to a qualified trust or to an annuity contract described in Section 403(a) or (b) of the Internal Revenue Code that agrees to separately account for amounts transferred (including interest or earnings thereon), including separately accounting for the portion of the distribution which is includable in gross income and the portion of the distribution which is not so includable.

(2) "Eligible retirement plan" means an eligible plan under Section 457(b) of the Internal Revenue Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into such plan from this plan, an individual retirement account described in Section 408(a) of the Internal Revenue Code, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code, a Roth IRA described in Section 408A of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code, an annuity contract described in Section 403(b) of the Internal Revenue Code, or a qualified plan described in Section 401(a) of the Internal Revenue Code that accepts the distributee's eligible rollover distribution: Provided, That in the case of an eligible rollover distribution to a designated beneficiary (other than a surviving spouse) as such term is defined in Section 402(c)(11) of the Internal Revenue Code, an eligible retirement plan is limited to an individual retirement account or individual retirement annuity which meets the conditions of Section 402(c)(11) of the Internal Revenue Code.

(3) "Distributee" means an employee or former employee. In addition, the employee's or former employee's surviving spouse and the employee's or former employee's spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans, are distributees with regard to the interest of the spouse or former spouse. The term "distributee" also includes a designated beneficiary (other than a surviving spouse) as such term is defined in Section 402(c)(11) of the Internal Revenue Code.

(4) "Direct rollover" means a payment by the plan to the eligible retirement plan.

§16-5V-14a. Rollovers and transfers to purchase service credit or repay withdrawn contributions.

(a) Notwithstanding any provision of this article to the contrary that would otherwise prohibit or limit rollovers and plan transfers to this system, the plan shall accept the following rollovers and plan transfers on behalf of a member solely for the purpose of purchasing permissive service credit, in whole or in part, as otherwise provided in this article or for the repayment of withdrawn or refunded contributions, in whole and in part, with respect to a previous forfeiture of service credit as otherwise provided in this article or for the purpose of paying higher contributions with interest for credit towards eligible 911 service upon initial transfer into this plan: (A) One or more rollovers within the meaning of Section 408(d)(3) of the Internal Revenue Code from an individual retirement account described in Section 408(a) of the Internal Revenue Code or from an individual retirement annuity described in Section 408(b) of the Internal Revenue Code; (B) one or more rollovers described in Section 402(c) of the Internal Revenue Code from a retirement plan that is qualified under Section 401(a) of the Internal Revenue Code or from a plan described in Section 403(b) of the Internal Revenue Code; (C) one or more rollovers described in Section 457(e)(16) of the Internal Revenue Code from a governmental plan described in Section 457 of the Internal Revenue Code; or (D) direct trustee-to-trustee transfers or rollovers from a plan that is qualified under Section 401(a) of the Internal Revenue Code, from a plan described in Section 403(b) of the Internal Revenue Code or from a governmental plan described in Section 457 of the Internal Revenue Code: Provided, That any rollovers or transfers pursuant to this section shall be accepted by the system only if made in cash or other asset permitted by the board and only in accordance with such policies, practices and procedures established by the board from time to time. For purposes of this article, the following definitions and limitations apply:

(1) "Permissive service credit" means service credit which is permitted to be purchased under the terms of the retirement system by voluntary contributions in an amount which does not exceed the amount necessary to fund the benefit attributable to the period of service for which the service credit is being purchased, all as defined in Section 415(n)(3)(A) of the Internal Revenue Code: Provided, That no more than five years of "nonqualified service credit", as defined in Section 415(n)(3)(C) of the Internal Revenue Code, may be included in the permissive service credit allowed to be purchased (other than by means of a rollover or plan transfer), and no nonqualified service credit may be included in any such purchase (other than by means of a rollover or plan transfer) before the member has at least five years of participation in the retirement system.

(2) "Repayment of withdrawn or refunded contributions" means the payment into the retirement system of the funds required pursuant to this article for the reinstatement of service credit previously forfeited on account of any refund or withdrawal of contributions permitted in this article, as set forth in Section 415(k)(3) of the Internal Revenue Code.

(3) Any contribution (other than by means of a rollover or plan transfer) to purchase permissive service credit under any provision of this article must satisfy the special limitation rules described in Section 415(n) of the Internal Revenue Code, and shall be automatically reduced, limited, or required to be paid over multiple years if necessary to ensure such compliance. To the extent any such purchased permissive service credit is qualified military service within the meaning of Section 414(u) of the Internal Revenue Code, the limitations of Section 415 of the Internal Revenue Code shall be applied to such purchase as described in Section 414(u)(1)(B) of the Internal Revenue Code.

(4) For purposes of Section 415(b) of the Internal Revenue Code, the annual benefit attributable to any rollover contribution accepted pursuant to this section shall be determined in accordance with Treasury Regulation §1.415(b)-1(b)(2)(v), and the excess, if any, of the annuity payments attributable to any rollover contribution provided under the retirement system over the annual benefit so determined shall be taken into account when applying the accrued benefit limitations of Section 415(b) of the Internal Revenue Code and section twelve of this article.

(b) Nothing in this section may be construed as permitting rollovers or transfers into this system or any other system administered by the retirement board other than as specified in this section, and no rollover or transfer shall be accepted into the system in an amount greater than the amount required for the purchase of permissive service credit or repayment of withdrawn or refunded contributions.

(c) Nothing in this section shall be construed as permitting the purchase of service credit or repayment of withdrawn or refunded contributions except as otherwise permitted in this article.

§16-5V-15. Retirement credited service through member's use, as option, of accrued annual or sick leave days.

Any member accruing annual leave or sick leave days may, after the effective date of this section, elect to use the days at the time of retirement to acquire additional credited service in this retirement system: Provided, That the accrued annual or sick leave may not be used to purchase health insurance under the Public Employees Insurance Agency until the member reaches the age of fifty-five. The days shall be applied on the basis of two workdays' credit granted for each one day of accrued annual or sick leave days, with each month of retirement service credit to equal twenty workdays and with any remainder of ten workdays or more to constitute a full month of additional credit and any remainder of less than ten workdays to be dropped and not used, notwithstanding any provisions of the code to the contrary. The credited service shall be allowed and not considered to controvert the requirement of no more than twelve months' credited service in any year's period.

§16-5V-16. Retirement benefits.

This section describes when adjustment of a member's accrued benefit to reflect the difference in age, in years and months, between the member's annuity starting date and the date the member attains normal retirement age shall be made. This age adjustment, when required, shall be made based upon the normal form of benefit and shall be the actuarial equivalent of the accrued benefit at the member's normal retirement age. The member shall receive the age adjusted retirement income in the normal form or in an actuarial equivalent amount in an optional form as provided under this article, subject to reduction if necessary to comply with the maximum benefit provisions of Section 415 of the Internal Revenue Code and section twelve of this article. The first day of the calendar month following the month of birth shall be used in lieu of any birth date that does not fall on the first day of a calendar month.

(a) Normal retirement. -- A member whose annuity starting date is the date the member attains normal retirement age, is entitled to his or her accrued benefit without adjustment for age at commencement.

(b) Early retirement. -- A member who ceases covered employment and has attained early retirement age while in covered employment may elect in writing by completion of an application for retirement required by and submitted to the board, to receive retirement income payments commencing on the first day of the month coincident with or following the date the member ceases covered employment and submits the proper application to the board. "Normal retirement age" for such a member is the first day of the calendar month coincident with or next following the month in which the member attains the age of fifty years. If the member's annuity starting date is prior to the date the member attains normal retirement age, his or her accrued benefit is reduced to the actuarial equivalent benefit amount based on the years and months by which his or her annuity starting date precedes the date he or she attains normal retirement age.

(c) Late retirement. -- A member whose annuity starting date is later than the date the member attains normal retirement age shall receive retirement income payments in the normal form without adjustment for age at commencement, which is the benefit to which he or she is entitled according to his or her accrued benefit based on his or her final average salary and credited service at the time of his or her actual retirement and following the completion of an application for retirement as required by the board.

(d) Retirement benefits shall be paid monthly in an amount equal to one twelfth of the retirement income payments elected and at those times established by the board. Notwithstanding any other provision of the plan, a member who is married on the annuity starting date will receive his or her retirement income payments in the form of a sixty-six and two-thirds percent joint and survivor annuity with his or her spouse unless prior to the annuity starting date the spouse waives the form of benefit.

§16-5V-17. Annuity options.

Prior to the effective date of retirement, but not after that date, a member may elect to receive retirement income payments in the normal form, or the actuarial equivalent of the normal form from the following options:

(a) Option A-- Contingent joint and survivor annuity. -- A life annuity payable during the joint lifetime of the member and his or her beneficiary who must be a natural person with an insurable interest in the member's life. Upon the death of the member, the benefit shall continue as a life annuity to the beneficiary in an amount equal to fifty percent, sixty-six and two-thirds percent, seventy-five percent or one hundred percent of the amount paid while both were living as selected by the member. If the beneficiary dies first, the monthly amount of benefits may not be reduced, but shall be paid at the amount that was in effect before the death of the beneficiary. If the retiring member is married, the spouse shall sign a waiver of benefit rights if the beneficiary is to be other than the spouse.

(b) Option B -- Ten years certain and life annuity. -- A life annuity payable during the member's lifetime but in any event for a minimum of ten years. If the member dies before the expiration of ten years, the remaining payments shall be made to a designated beneficiary, if any, or otherwise to the member's estate.

§16-5V-18. Refunds to certain members upon discharge or resignation; deferred retirement; forfeitures.

(a) Any member who terminates covered employment and is not immediately eligible to receive disability or retirement income benefits under this article is, by written request filed with the board, entitled to receive from the fund the member's accumulated contributions. Except as provided in subsection (b) of this section, upon withdrawal, the member shall forfeit his or her accrued benefit and cease to be a member.

(b) Any member who ceases employment in covered employment and active participation in this plan and who thereafter becomes reemployed in covered employment may not receive any credited service for any prior withdrawn accumulated contributions from either this plan or the Public Employees Retirement System unless following his or her return to covered employment and active participation in this plan, the member redeposits in the fund the amount of the accumulated contributions withdrawn from previous covered employment, together with interest on the accumulated contributions at the rate determined by the board from the date of withdrawal to the date of redeposit. Upon repayment he or she shall receive the same credit on account of his or her former covered employment as if no refund had been made.

The repayment authorized by this subsection shall be made in a lump sum within sixty months of the emergency medical services officer's reemployment in covered employment or, if later, within sixty months of the effective date of this article.

(c) A member of this plan who has elected to transfer from the Public Employees Retirement System into this plan pursuant to subsection (b), section six of this article may not, after having transferred into and become an active member of this plan, reinstate to his or her credit in this plan any service credit relating to periods of nonemergency medical services officer service withdrawn from the Public Employees Retirement System prior to his or her elective transfer into this plan.

(d) Every member who completes sixty months of covered employment is eligible, upon cessation of covered employment, to either withdraw his or her accumulated contributions in accordance with this section or to choose not to withdraw his or her accumulated contribution and to receive retirement income payments upon attaining early or normal retirement age.

(e) Notwithstanding any other provision of this article, forfeitures under the plan may not be applied to increase the benefits any member would otherwise receive under the plan.

§16-5V-19. Awards and benefits for disability -- Duty related.

(a) Any member who after the effective date of this article and during covered employment: (1) Has been or becomes totally disabled by injury, illness or disease; and (2) the disability is a result of an occupational risk or hazard inherent in or peculiar to the services required of members; or (3) the disability was incurred while performing emergency medical services functions during either scheduled work hours or at any other time; and (4) in the opinion of two physicians after medical examination, one of whom shall be named by the board, the member is by reason of the disability unable to perform adequately the duties required of an emergency medical services officer, is entitled to receive and shall be paid from the fund in monthly installments the compensation set forth under either subsection (b) or (c) of this section.

(b) If the member is totally disabled, the member shall receive ninety percent of his or her average full monthly compensation for the twelve-month period preceding the member's disability or the shorter period if the member has not worked twelve months.

(c) If the member remains totally disabled until attaining sixty-five years of age, the member shall then receive the retirement benefit provided in sections sixteen and seventeen of this article.

(d) The disability benefit payments will begin the first day of the month following termination of employment and receipt of the disability retirement application by the Consolidated Public Retirement Board.

§16-5V-20. Awards and benefits for disability -- Due to other causes.

(a) Any member with ten or more years of contributing service and who during covered employment: (1) Has been or becomes totally disabled from any cause other than those set forth in section nineteen of this article and not due to vicious habits, intemperance or willful misconduct on his or her part; and (2) in the opinion of two physicians after medical examination, one of whom shall be named by the board, he or she is by reason of the disability unable to perform adequately the duties required of an emergency medical services officer, is entitled to receive and shall be paid from the fund in monthly installments, the compensation set forth in, either subsection (b) or (c) of this section.

(b) If the member is totally disabled, he or she shall receive sixty-six and two-thirds percent of his or her average monthly compensation for the twelve-month period immediately preceding the disability award, or if the member has not worked all twelve months during the twelve month period immediately preceding the disability award, the average of the months in which compensation was received for the twelve month period shall be used.

(c) If the member remains totally disabled until attaining sixty years of age, then the member shall receive the retirement benefit provided in sections sixteen and seventeen of this article.

(d) The board shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code concerning member disability payments so as to ensure that the payments do not exceed one hundred percent of the average current salary for the position last held by the member.

(e) The disability benefit payments will begin the first day of the month following termination of employment and receipt of the disability retirement application by the Consolidated Public Retirement Board.

§16-5V-21. Same -- Physical examinations; termination of disability.

(a) The board may require any member who has applied for or is receiving disability benefits under this article to submit to a physical examination, mental examination or both, by a physician or physicians selected or approved by the board. All costs incident to any examination by a board selected physician shall be paid from the board's expense fund. The costs may include hospital, laboratory, X-ray, medical and physicians' fees. A report of the findings of any physician shall be submitted in writing to the board for its consideration. If, from the report, independent information, or from the report and any hearing on the report, the board is of the opinion and finds that: (1) The member has become reemployed as an emergency medical services officer; (2) a physician who has examined the member has found that considering the opportunities for emergency medical services in West Virginia, the member could be so employed as an emergency medical services officer; or (3) other facts exist to demonstrate that the member is no longer totally disabled, then the disability benefits shall cease the first day of the month following board action. (b) The board shall require recertification for a disabled retirant, who has not attained age sixty, at least once each year during the first five years following his or her retirement and at least once in each three year period thereafter.

(c) If a retirant refuses to submit to a medical examination or submit a statement by his or her physician certifying continued disability in any period, his or her disability annuity may be discontinued by the board until the retirant complies. If the refusal continues for one year, all the retirant's rights in and to the annuity may be revoked by the board.

§16-5V-22.

Repealed.

Acts, 2012 Reg. Sess., Ch. 32.

§16-5V-23. Awards and benefits to surviving spouse -- When member dies in performance of duty, etc.

(a) The surviving spouse of any member who, after the effective date of this article while in covered employment, has died or dies by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members, while the member was or is engaged in the performance of his or her duties as an emergency medical services officer, or the survivor spouse of a member who dies from any cause while receiving benefits pursuant to section nineteen of this article, is entitled to receive and shall be paid from the fund benefits as determined in subsection (b) of this section: To the surviving spouse annually, in equal monthly installments during his or her lifetime an amount equal to the greater of: (1) Two thirds of the annual compensation received in the preceding twelve-month period by the deceased member; or (2) if the member dies after his or her early or normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or her death, elected a one hundred percent joint and survivor annuity with the spouse as the joint annuitant, and then died.

(b) Benefits for a surviving spouse received under this section, section twenty-five and section twenty-six of this article are in lieu of receipt of any other benefits under this article for the spouse or any other person or under the provisions of any other state retirement system based upon the member's covered employment.

§16-5V-24. Awards and benefits to surviving spouse -- When member dies from nonservice-connected causes.

(a) If a member who has been a member for at least ten years, while in covered employment after the effective date of this article, has died or dies from any cause other than those specified in section twenty-three of this article and not due to vicious habits, intemperance or willful misconduct on his or her part, the fund shall pay annually in equal monthly installments to the surviving spouse during his or her lifetime, a sum equal to the greater of: (1) One half of the annual compensation received in the preceding twelve-month employment period by the deceased member; or (2) if the member dies after his or her early or normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or her death, elected a one hundred percent joint and survivor annuity with the spouse as the joint annuitant, and then died. Where the member is receiving disability benefits under this article at the time of his or her death, the average monthly compensation received in the plan year prior to disability shall be substituted for the annual compensation in subdivision (1) of this subsection.

(b) Benefits for a surviving spouse received under this section, or other sections of this article are in lieu of receipt of any other benefits under this article for the spouse or any other person or under the provisions of any other state retirement system based upon the member's covered employment.

§16-5V-25. Additional death benefits and scholarships -- Dependent children.

(a) In addition to the spouse death benefits in this article, the surviving spouse is entitled to receive and there shall be paid to the spouse $100 monthly for each dependent child.

(b) If the surviving spouse dies or if there is no surviving spouse, the fund shall pay monthly to each dependent child a sum equal to one hundred percent of the spouse's entitlement under this article divided by the number of dependent children. If there is neither a surviving spouse nor a dependent child, the fund shall pay in equal monthly installments to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is only one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive: Provided, however, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, the accumulated contributions shall be paid to a named beneficiary or beneficiaries: Provided further, That if there is no surviving spouse, dependent child or dependent parent of the deceased member, or any named beneficiary or beneficiaries, then the accumulated contributions shall be paid to the estate of the deceased member.

(c) Any person qualifying as a dependent child under this section, in addition to any other benefits due under this or other sections of this article, is entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding $6,000 per year, shall be paid from the fund to any university or college in this state or to any trade or vocational school or other entity in this state approved by the board to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the board on an approved form and under rules provided by the board and maintains scholastic eligibility as defined by the institution or the board. The board may propose legislative rules for promulgation in accordance with article three, chapter twenty-nine-a of this code which define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section. Scholarship benefits awarded pursuant to this subsection are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order.

§16-5V-26. Burial benefit.

Any member who dies as a result of any service related illness or injury after the effective date is entitled to a lump sum burial benefit of $5,000. If the member is married, the burial benefit shall be paid to the member's spouse. If the member is not married, the burial benefit shall be paid to the member's estate for the purposes of paying burial expenses, settling the member's final affairs, or both. Burial benefits awarded pursuant to this section are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order.

§16-5V-27. Double death benefits prohibited.

A surviving spouse is not entitled to receive simultaneous death benefits under this article as a result of the death of two or more members to whom the spouse was married. Any spouse who becomes eligible for a subsequent death benefit under this article while receiving a death benefit under this article shall receive the higher benefit, but not both.

§16-5V-28. Right to benefits not subject to execution, etc.;assignments prohibited; deductions for group insurance; setoffs for fraud; exception for certain domestic relations orders; benefits exempt from taxes.

The right of a person to any benefit provided for in this article shall not be subject to execution, attachment, garnishment, the operation of bankruptcy or insolvency laws, or other process whatsoever, nor shall any assignment thereof be enforceable in any court except that the benefits or contributions under this system shall be subject to "qualified domestic relations orders" as that term is defined in Section 414(p) of the Internal Revenue Code as applicable to governmental plans: Provided, That should a member be covered by a group insurance or prepayment plan participated in by a participating public employer, and should he or she be permitted to, and elect to, continue such coverage as a retirant, he or she may authorize the board of trustees to have deducted from his or her annuity the payments required of him or her to continue coverage under such group insurance or prepayment plan: Provided, however, That a participating public employer shall have the right of setoff for any claim arising from embezzlement by, or fraud of, a member, retirant or beneficiary. The assets of the retirement system are hereby exempt from state, county and municipal taxes.

§16-5V-29. Fraud; penalties; and repayment.

Any person who knowingly makes any false statement or who falsifies or permits to be falsified any record of the retirement system in any attempt to defraud that system is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed 1,000, by confinement in jail not to exceed one year, or by both fine and confinement. Any increased benefit received by any person as a result of the falsification or fraud shall be returned to the fund upon demand by the board.

§16-5V-30. Credit toward retirement for member's prior military service; credit toward retirement when member has joined Armed Forces in time of armed conflict; qualified military service.

(a) Any member who has previously served on active military duty is entitled to receive additional years of service for the purpose of determining his or her years of credited service for a period equal to the active military duty not to exceed five years, subject to the following:

(1) That he or she has been honorably discharged from the Armed Forces;

(2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty; and

(3) That he or she is receiving no benefits from any other retirement system for his or her active military duty.

(b) In addition, any member who while in covered employment was commissioned, enlisted or inducted into the Armed Forces of the United States or, being a member of the reserve officers' corps, was called to active duty in the Armed Forces between September 1, 1940, and the close of hostilities in World War II, or between the June 27, 1950, and the close of the armed conflict in Korea on the July 27, 1953, between August 1, 1964, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by Congress or by executive or other order of the President, is entitled to and shall receive credited service, for a period equal to the full time that he or she has or, pursuant to that commission, enlistment, induction or call, shall have served with the Armed Forces subject to the following:

(1) That he or she has been honorably discharged from the Armed Forces;

(2) That within ninety days after honorable discharge from the Armed Forces, he or she presented himself or herself to the county commission or other political subdivision and offered to resume service as an emergency medical services officer; and

(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the Armed Forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called.

(c) The total amount of service allowable under subsections (a) and (b) of this section may not exceed five years.

(d) Any service credit allowed under this section may be credited one time only for each emergency medical services officer, regardless of any changes in job title or responsibilities.

(e) Notwithstanding any provision of this section to the contrary, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. The Retirement Board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.

§16-5V-31. How a county commission, political subdivision, or county 911 public safety answering point becomes a participating public employer.

Any county commission, or political subdivision, or county 911 public safety answering point employing emergency medical services officers or 911 personnel may by a three-fifths vote of its governing body, or by a majority vote of its electors, elect to become a participating public employer and thereby include its emergency medical services officers and 911 personnel in the membership of the plan. The clerk or secretary of each such county commission, or political subdivision, or county 911 public safety answering point governing board electing to become a participating public employer shall certify the determination of the county commission, or political subdivision, or county 911 public safety answering point governing board to the Consolidated Public Retirement Board within 10 days from and after the vote of the governing body or the canvass of votes upon such action. Once a county commission, or political subdivision, or county 911 public safety answering point governing board elects to participate in the plan, the action is final and it may not, at a later date, elect to terminate its participation in the plan.

§16-5V-32. Effective date; report to Joint Committee on Government and Finance; special starting date for benefits.

(a) The provisions of this article become effective January 1, 2008: Provided, That no payout of any benefits may be made to any person prior to January 1, 2011: Provided, however, That emergency medical services officers who retire due to a duty disability pursuant to this article may begin receiving the benefits at the rate and in the amount specified in this article from this fund after June 30, 2008: Provided further, That until June 30, 2008, those emergency medical services officers who retire due to a duty disability pursuant to this article may draw benefits from this fund at the rate and in the amount set forth in section twenty-five, article ten, chapter five of this code.

(b) During the 36-month period before the payout of benefits begins, the Joint Committee on Government and Finance shall cause an interim study or studies to be conducted on the potential effects of the implementation of this retirement system, including, but not limited to, potential funding mechanisms to provide health insurance coverage for retirees in the fifty to fifty-five age group: Provided, That after the effective date of this provision, the Director of the Public Employees Insurance Agency shall propose a rule for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the funding of health insurance coverage for retirees under the plan provided in this article who are in the fifty to fifty-five year age group, which rule may be filed as an emergency rule: Provided, however, That any rule filed as an emergency rule pursuant to this subsection shall be refiled at the earliest opportunity as a legislative rule for review and promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code.

§16-5V-33. Limitation of county liability.

No county which has timely met all of its obligations under this article is liable for any payments or contributions to the emergency medical services retirement plan which are owed to the plan by another county or counties.

§16-5V-34. Benefits not forfeited if system terminates.

If the retirement system is terminated or contributions are completely discontinued, the rights of all members to benefits accrued or contributions made to the date of the termination or discontinuance, to the extent then funded, are not forfeited.

§16-5V-35. Return to covered employment by retirant.

The annuity of any member who retires under the provisions of this article and who resumes service in covered employment shall be suspended while the member continues in covered employment. The monthly annuity payment for the month in which the service resumes shall be pro-rated to the date of commencement of service, and the member shall again become a contributing member during resumption of service. At the conclusion of resumed service in covered employment the member shall have his or her annuity recalculated to take into account the entirety of service in covered employment.

§16-5W-1. Reporting.

(a) The Office of the Inspector General shall send to county prosecutors any findings that may be subject to criminal prosecution in cases of abuse and neglect with IDD. The Office of the Inspector General shall send to the P&A the findings of any cases involving instances of substantiated abuse or neglect involving a person with a developmental disability.

(b) An annual report shall be submitted to the Legislative Oversight Commission on Health and Human Resources Accountability including:

(1) All instances where abuse and neglect cases involving IDD at any location has been substantiated by the Office of the Inspector General.

(2) The county or region where the substantiated abuse or neglect occurred;

(2) The descriptive category of the abuse and neglect;

(3) The type of setting where the abuse and neglect occurred;

(4) Whether the abuse and neglect information was turned over to the county prosecutor and law enforcement;

(5) The name of the provider, if the provider is involved, who is charged with the care of the individual; and

(6) The age range and gender of the individual. 

(c) In instances where abuse and/or neglect leads to the death of an individual, the department shall send a letter, within 30 days after the findings where substantiated, to the Senate President, the Speaker of the House, and the chairs of LOCHHRA outlining the information above about the case.

§16-5W-2. Independent Mental Health Ombudsman.

(a) (1) The Office of the Inspector General shall continue an independent mental health ombudsman;

(2) The duties of the mental health ombudsman shall include, but are not limited to, the following:

(A) Advocating for the well-being, treatment, safety, and rights of consumers of mental health care facilities or psychiatric hospital;

(B) Participating in any procedure to investigate, and resolve complaints filed on behalf of a consumer of a mental health care facility or psychiatric hospital, relating to action, inaction, or decisions of providers of mental and behavioral health, of public agencies, or social service agencies, which may adversely affect the health, safety, welfare, and rights of a consumer of a mental health care facility or psychiatric hospital; and

(C) Monitoring the development and implementation of federal, sate, and local legislation, regulations, and policies with respect to mental and behavioral health care and services;

(3) The mental health ombudsman shall participate in ongoing training programs related to his or her duties or responsibilities;

(4)(A) Information relating to any investigation of a complaint that contains the identity of the complainant or consumer shall remain confidential except:

(i) Where imminent risk of serious harm is communicated directly to the mental health ombudsman or his or her staff; or

(ii) Where disclosure is necessary to the Office of Health Facility Licensure and Certification in order for such office to determine the appropriateness of initiating an investigation to determine facility compliance with applicable rules of licensure, certification, or both;

(B) The mental health ombudsman shall maintain confidentiality with respect to all matters including the identities of complainants, witnesses, or others from whom information is acquired, except insofar as disclosures may be necessary to enable the mental health care ombudsman to carry out duties of the office or to support recommendations;

(C) All information, records, and reports received by or developed by the mental health ombudsman program which relate to a consumer of a mental health care facility or psychiatric hospital, including written material identifying a consumer are confidential, and are not subject to the provisions of §29-1-1, et seq. of this code, and may not be disclosed or released by the mental health ombudsman program, except under the circumstances enumerated in this section;

(D) Nothing in this section prohibits the preparation and submission by the mental health ombudsman of statistical data and reports, as required to implement the provisions of this section or any applicable federal law, exclusive of any material that identifies any consumer or complainant; and

(E) The Inspector General shall have access to the records and files of the mental health ombudsman program to verify its effectiveness and quality.

§16-5W-3. Intellectual and Developmental Disabilities Waiver Program workforce study.

(a) By July 1, 2023, the Legislative Oversight Commission on Health and Human Resources Accountability shall conduct a workforce study pertaining to the Intellectual and Developmental Disabilities Waiver Program (IDDW Program). The study shall use data and statistics generally relied upon by reasonably prudent individuals, and shall determine/address the following:

(1) The categories of personnel offering services as part of the IDDW Program;

(2) The mean hourly pay rate for each such category of personnel, broken down by West Virginia County where service is provided to patients;

(3) The mean hourly pay rate for each such category of personnel offering services as part of programs equivalent to the IDDW Program in surrounding states.

(4) A comparison of the hourly pay rates identified in subdivisions 2 and 3 of this section, broken down by category of personnel; and

(5) Any other factor the commission reasonably deems relevant to the issues.

(b) Within the report the commission shall make recommendations as to the appropriateness of the current mean hourly pay rate for each category of IDDW Program personnel, as well as any potential pay rate increases necessary to ensure that the IDDW Programs can successfully recruit and retain qualified personnel.

(c) The commission shall issue the report by January 1, 2024.

§16-5W-4. Annual capitation rate review.

(a) The Bureau of Medicaid Services shall conduct an annual study reviewing the adequacy and appropriateness of the reimbursement rates to providers in the IDDW Program. The bureau shall also include a recommendation for any adjustment deemed appropriate, including, but not limited to, annual inflationary costs, costs arising from amendments to existing contracts, costs relating to recruiting and retaining personnel, and any other costs necessitating additional payments to IDDW providers. The bureau may require, and contracted providers shall provide financial data to the bureau to assist in the study. Without limiting the generality of the foregoing in conducting this study, the bureau shall review and compare equivalent programs both in and out of state in order to determine appropriate rates.

(b) Upon completion of the study, BMS shall provide the report to the Joint Committee of Finance beginning July 1, 2024, and annually thereafter, on its findings, conclusions, and recommendations, together with drafts of any legislation necessary to effectuate its recommendations.

§16-5W-5.

Repealed.

Acts, 2015 Reg. Sess., Ch. 188.

§16-5W-6.

Repealed.

Acts, 2015 Reg. Sess., Ch. 188.

§16-5W-7.

Repealed.

Acts, 2015 Reg. Sess., Ch. 188.

§16-5W-8.

Repealed.

Acts, 2015 Reg. Sess., Ch. 188.

§16-5X-1. Definitions.

For purpose of this article:

(1) "Aftercare" means any assistance provided by a designated lay caregiver to an individual under this article after the patient's discharge from a hospital. Assistance may include tasks that are limited to the patient's condition at the time of discharge that do not require a licensed professional;

(2) "Discharge" means a patient's exit or release from a hospital to the patient's residence following an inpatient stay;

(3) "Hospital" means a facility licensed pursuant to article five-b, chapter sixteen of this code and any acute care facility operated by state government;

(4) "Lay caregiver" means any individual eighteen years of age or older designated as a lay caregiver pursuant to the provisions of this article who provides aftercare assistance to a patient in the patient's residence; and

(5) "Residence" means a dwelling considered by a patient to be his or her home, not including a hospital or, a nursing home or group home, as defined by section two, article five-c, chapter sixteen of this code.

§16-5X-2. Caregiver designation.

(a) (1) A hospital shall provide a patient or the patient's legal guardian with an opportunity to designate one lay caregiver following the patient's admission into a hospital.

(2) If the patient is unconscious or otherwise incapacitated upon admission to the hospital, the hospital shall provide the patient's legal guardian with an opportunity to designate a lay caregiver following the patient's recovery of consciousness or capacity, so long as the designation or lack of a designation does not interfere with, delay or otherwise affect the medical care provided to the patient.

(3) If the patient or the patient's legal guardian declines to designate a lay caregiver under this article, the hospital shall promptly document that in the patient's medical record, and the hospital is considered to have complied with the provisions of this article.

(4) If the patient or the patient's legal guardian designates an individual as a lay caregiver under this article, the hospital shall promptly request the written consent of the patient or the patient's legal guardian to release medical information to the patient's designated lay caregiver pursuant to the hospital's established procedures for releasing personal health information and in compliance with applicable state and federal law.

(5) If the patient or the patient's legal guardian declines to consent to the release of medical information to the patient's designated lay caregiver, the hospital shall promptly document that in the patient's medical record, and the hospital is considered to have complied with the provisions of this article.

(6) The hospital shall record the patient's designation of a lay caregiver, the relationship of the lay caregiver to the patient, and the name and contact information of the patient's designated lay caregiver in the patient's medical record.

(b) A patient may elect to change his or her designated lay caregiver in the event that the originally designated lay caregiver becomes unavailable, unwilling or unable to care for the patient.

(c) Designation of a lay caregiver by a patient or a patient's legal guardian pursuant to the provisions of this article does not obligate any individual to perform any aftercare tasks for the patient.

(d) This article does not require a patient or a patient's legal guardian to designate any individual as a lay caregiver as defined by this article.

§16-5X-3. Notification.

If a patient has designated a lay caregiver, a hospital shall notify the patient's designated lay caregiver of the patient's discharge to the patient's residence as soon as possible. If the hospital is unable to contact the designated lay caregiver, the lack of contact may not interfere with, delay or otherwise affect the medical care provided to the patient, or an appropriate discharge of the patient. The hospital shall promptly document that in the patient's medical record, and the hospital is considered to have complied with the provisions of this section.

§16-5X-4. Discharge.

(a) As soon as possible and, in any event, upon issuance of a discharge order by the patient's attending physician, the hospital shall consult with the designated lay caregiver along with the patient regarding the lay caregiver's capabilities and limitations and issue a discharge plan that describes a patient's after-care needs at his or her residence. At minimum, a discharge plan shall include:

(1) The name and contact information of the lay caregiver designated under this article;

(2) A description of all after-care tasks necessary to maintain the patient's ability to reside at home, taking into account the capabilities and limitations of the lay caregiver; and

(3) Contact information for any health care, community resources and long-term services and supports necessary to successfully carry out the patient's discharge plan.

(b) The hospital issuing the discharge plan shall provide the lay caregiver with instruction in all after-care tasks described in the discharge plan. At minimum, the instruction shall include:

(1) Education and instruction of the lay caregiver by a hospital employee or individual with whom the hospital has a contractual relationship authorized to perform the after care task in a manner that is consistent with current accepted practices and is based on an assessment of the lay caregiver's learning needs;

(2) An opportunity for the lay caregiver and patient to ask questions about the after-care tasks; and

(3) Answers to the lay caregiver's and patient's questions provided in a competent manner and in accordance with the hospital's requirements to provide language access services under state and federal law.

(c) Any instruction required under this article shall be documented in the patient's medical record, including, at minimum, the date, time, and contents of the instruction.

§16-5X-5. Exceptions and immunity.

(a) This article may not be construed to interfere with the rights of a person legally authorized to make health care decisions as provided in article thirty, chapter sixteen of this code.

(b) Nothing in this act shall be construed to create a private right of action against a hospital, hospital employee, a duly authorized agent of the hospital or any consultants or contractors with whom the hospital has a contractual relationship.

(c) A hospital, a hospital employee or any consultants or contractors with whom a hospital has a contractual relationship shall not be held liable in any way for services rendered or not rendered by the lay caregiver.

§16-5X-6. Funding.

State or federal dollars may not be used for payment to any lay caregiver as defined in this article after discharge from a hospital. No state or federal program funding shall be impacted by this article.

§16-5Y-1. Purpose.

The purpose of this act is to establish licensing and registration requirements for facilities and physicians that treat patients with substance use disorders to ensure that patients may be lawfully treated by the use of medication and drug screens, in combination with counseling and behavioral therapies, to provide a holistic approach to the treatment of substance use disorders and comply with oversight requirements developed by the Department of Health and Human Resources.  The Legislature recognizes the problem of substance use disorders in West Virginia and the need for quality, safe treatment of substance use disorders to adequately protect the people of West Virginia.

§16-5Y-2. Definitions.

“Addiction” means a primary, chronic disease of brain reward, motivation, memory, and related circuitry.  Dysfunction in these circuits leads to characteristic biological, psychological, social, and spiritual manifestations which is reflected in an individual pathologically pursuing reward or relief by substance use, or both, and other behaviors.  Addiction is characterized by inability to consistently abstain; impairment in behavioral control; craving; diminished recognition of significant problems with one’s behaviors; interpersonal problems with one’s behaviors and interpersonal relationships; a dysfunctional emotional response; and as addiction is currently defined by the American Society of Addiction Medicine.

 “Administrator” means an individual designated by the governing body to be responsible for the day-to-day operation of the opioid treatment programs.

“Advanced alcohol and drug abuse counselor” means an alcohol and drug abuse counselor who is certified by the West Virginia Certification Board for Addiction and Prevention Professionals who demonstrates a high degree of competence in the addiction counseling field.

“Alcohol and drug abuse counselor” means a counselor certified by the West Virginia Certification Board for Addiction and Prevention Professionals for specialized work with patients who have substance use problems.

“Biopsychosocial” means of, relating to, or concerned with, biological, psychological, and social aspects in contrast to the strictly biomedical aspects of disease.

“Center for Substance Abuse Treatment” means the center under the Substance Abuse and Mental Health Services Administration that promotes community-based substance abuse treatment and recovery services for individuals and families in the community and provides national leadership to improve access, reduce barriers, and promote high quality, effective treatment and recovery services.

“Controlled Substances Monitoring Program Database” means the database maintained by the West Virginia Board of Pharmacy pursuant to §60A-9-3 of this code that monitors and tracks certain prescriptions written or dispensed by dispensers and prescribers in West Virginia.

“Director” means the Director of the Office of Health Facility Licensure and Certification.

“Dispense” means the preparation and delivery of a medication-assisted treatment medication in an appropriately labeled and suitable container to a patient by a medication-assisted treatment program or pharmacist.

“Governing body” means the person or persons identified as being legally responsible for the operation of the opioid treatment program.  A governing body may be a board, a single entity or owner, or a partnership. The governing body must comply with the requirements prescribed in rules promulgated pursuant to this article.

“Medical director” means a physician licensed within the State of West Virginia who assumes responsibility for administering all medical services performed by the medication-assisted treatment program, either by performing them directly or by delegating specific responsibility to authorized program physicians and health care professionals functioning under the medical director’s direct supervision and functioning within their scope of practice.

“Medication-assisted treatment” means the use of medications and drug screens, in combination with counseling and behavioral therapies, to provide a holistic approach to the treatment of substance use disorders.

“Medication-assisted treatment program” means all publicly and privately owned opioid treatment programs and office-based, medication-assisted treatment programs, which prescribe medication-assisted treatment medications and treat substance use disorders, as those terms are defined in this article.

“Medication-assisted treatment medication” means any medication that is approved by the United States Food and Drug Administration under Section 505 of the Federal Food, Drug and Cosmetic Act, 21 U. S. C. § 355, for use in the treatment of substance use disorders that is an opioid agonist or partial opioid agonist and is listed on the Schedule of Controlled Substances in §60A-2-2201 et seq. of this code.

“Office-based, medication-assisted treatment” means all publicly or privately owned clinics, facilities, offices, or programs that provide medication-assisted treatment to individuals with substance use disorders through the prescription, administration, or dispensing of a medication-assisted treatment medication in the form of a partial opioid agonist.

“Opioid agonist” means substances that bind to and activate the opiate receptors resulting in analgesia and pain regulation, respiratory depression, and a wide variety of behavioral changes.  As used in this article, the term “opioid agonist” does not include partial agonist medications used as an alternative to opioid agonists in the treatment of opioid addiction.

 ”Opioid treatment program” means all publicly- or privately-owned medication-assisted treatment programs in clinics, facilities, offices, or programs that provide medication-assisted treatment to individuals with substance use disorders through on-site administration or dispensing of a medication-assisted treatment medication in the form of an opioid agonist or partial opioid agonist.

“Owner” means any person, partnership, association, or corporation listed as the owner of a medication-assisted treatment program on the licensing or registration forms required by this article.

“Partial opioid agonist” means a Federal Drug Administration approved medication that is used as an alternative to opioid agonists for the treatment of substance use disorders and that binds to and activates opiate receptors, but not to the same degree as full agonists.

“Physician” means an individual licensed in this state to practice allopathic medicine or surgery by the West Virginia Board of Medicine or osteopathic medicine or surgery by the West Virginia Board of Osteopathic Medicine and that meets the requirements of this article.

“Prescriber” means a person authorized in this state, working within their scope of practice, to give direction, either orally or in writing, for the preparation and administration of a remedy to be used in the treatment of substance use disorders.

“Program sponsor” means the person named in the application for the certification and licensure of an opioid treatment program who is responsible for the administrative operation of the opioid treatment program and who assumes responsibility for all of its employees, including any practitioners, agents, or other persons providing medical, rehabilitative, or counseling services at the program.

“Secretary” means the Secretary of the West Virginia Department of Health and Human Resources or his or her designee.

“State opioid treatment authority” means the agency or individual designated by the Governor to exercise the responsibility and authority of the state for governing the treatment of substance use disorders, including, but not limited to, the treatment of opiate addiction with opioid drugs.

“State oversight agency” means the agency or office of state government identified by the secretary to provide regulatory oversight of medication-assisted treatment programs on behalf of the State of West Virginia.

“Substance” means the following:

(1) Alcohol;

(2) Controlled substances defined by §60A-2-204, §60A-2-206, §60A-2-208, and §60A-2-210 of this code; or

(3) Any chemical, gas, drug, or medication consumed which causes clinically and functionally significant impairment, such as health problems, disability, and failure to meet major responsibilities at work, school, or home.

“Substance Abuse and Mental Health Services Administration” means the agency under the United States Department of Health and Human Services responsible for the accreditation and certification of medication-assisted treatment programs and that provides leadership, resources, programs, policies, information, data, contracts, and grants for the purpose of reducing the impact of substance abuse and mental or behavioral illness.

“Substance use disorder” means patterns of symptoms resulting from use of a substance that the individual continues to take, despite experiencing problems as a result; or as defined in the most recent edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

“Telehealth” means the mode of delivering health care services and public health via information and communication technologies to facilitate the diagnosis, consultation, treatment education, care management, and self-management of a patient’s health care while the patient is at the originating site and the health care provider is at a distant site.

“Variance” means written permission granted by the secretary to a medication-assisted treatment program that a requirement of this article or rules promulgated pursuant to this article may be accomplished in a manner different from the manner set forth in this article or associated rules.

“Waiver” means a formal, time-limited agreement between the designated oversight agency and the medication-assisted treatment program that suspends a rule, policy, or standard for a specific situation so long as the health and safety of patients is better served in the situation by suspension of the rule, policy, or standard than by enforcement.

§16-5Y-3. Opioid treatment programs to obtain license; application; fees and inspections.

(a) No person, partnership, association or corporation may operate an opioid treatment program without first obtaining a license from the secretary in accordance with the provisions of this article and the rules lawfully promulgated pursuant to this article.

(b) Any person, partnership, association or corporation desiring a license to operate an opioid treatment program in this state shall file with the Office of Health Facility Licensure and Certification an application in such form and with such information as the secretary shall prescribe and furnish accompanied by an application fee.

(c) The Director of the Office of Health Facility Licensure and Certification or his or her designee shall inspect each facility and review all documentation submitted with the application.  The director shall then provide a recommendation to the secretary whether to approve or deny the application for a license. The secretary shall issue a license if the facility is in compliance with the provisions of this article and with the rules lawfully promulgated pursuant to this article.

(d) A license shall be issued in one of three categories:

(1) An initial twelve month license shall be issued to an opioid treatment program establishing a new program or service for which there is insufficient consumer participation to demonstrate substantial compliance with this article and with all rules promulgated pursuant to this article;

(2) A provisional license shall be issued when an opioid treatment program seeks a renewal license, or is an existing program as of the effective date of this article and is seeking an initial license, and the opioid treatment program is not in substantial compliance with this article and with all rules promulgated pursuant to this article, but does not pose a significant risk to the rights, health and safety of a consumer.  It shall expire not more than six months from the date of issuance, and may not be consecutively reissued; or

(3) A renewal license shall be issued when an opioid treatment program is in substantial compliance with this article and with all rules promulgated pursuant to this article. A renewal license shall expire not more than one year from the date of issuance.

(e) At least sixty days prior to the license expiration date, an application for renewal shall be submitted by the opioid treatment program to the secretary on forms furnished by the secretary.  A license shall be renewed if the secretary determines that the applicant is in compliance with this article and with all rules promulgated pursuant to this article.  A license issued to one program location pursuant to this article is not transferrable or assignable.  Any change of ownership of a licensed medication-assisted treatment program requires submission of a new application. The medication-assisted treatment program shall notify the secretary of any change in ownership within ten days of the change and must submit a new application within the time frame prescribed by the secretary.

(f) Any person, partnership, association or corporation that seeks to obtain or renew a license for an opioid treatment program in this state must submit to the secretary the following documentation:

(1) Full operating name of the program as advertised;

(2) Legal name of the program as registered with the West Virginia Secretary of State;

(3) Physical address of the program;

(4) Preferred mailing address for the program;

(5) Email address to be used as the primary contact for the program;

(6) Federal Employer Identification Number assigned to the program;

(7) All business licenses issued to the program by this state, the state Tax Department, the Secretary of State and all other applicable business entities;

(8) Brief description of all services provided by the program;

(9) Hours of operation;

(10) Legal Registered Owner Name – name of the person registered as the legal owner of the program.  If more than one legal owner (i.e., partnership, corporation, etc.) list each legal owner separately, indicating the percentage of ownership;

(11) Medical director’s full name, medical license number, Drug Enforcement Administration registration number, and a list of all current certifications;

(12) For each employee of the program, provide the following:

(A) Employee’s role and occupation within the program;

(B) Full legal name;

(C) Medical license, if applicable;

(D) Drug Enforcement Administration registration number, if applicable;

(E) Drug Enforcement Administration identification number to prescribe buprenorphine for addiction, if applicable; and

(F) Number of hours per week worked at program;

(13) Name and location address of all programs owned or operated by the applicant;

(14) Notarized signature of applicant;

(15) Check or money order for licensing fee and inspection fee;

(16) Verification of education and training for all physicians, counselors and social workers practicing at or used by referral by the program such as fellowships, additional education, accreditations, board certifications and other certifications;

(17) Board of Pharmacy Controlled Substance Prescriber Report for each prescriber practicing at the program for the three months preceding the date of application; and

(18) If applicable, a copy of a valid Certificate of Need or a letter of exemption from the West Virginia Health Care Authority.

(g) Upon satisfaction that an applicant has met all of the requirements of this article, the secretary shall issue a license to operate an opioid treatment program.  An entity that obtains this license may possess, have custody or control of, and dispense drugs indicated and approved by the United States Food and Drug Administration for the treatment of substance use disorders.

(h) The opioid treatment program shall display the current license in a prominent location where services are provided and in clear view of all patients.

 (i) The secretary or his or her designee shall inspect on a periodic basis all opioid treatment programs that are subject to this article and all rules adopted pursuant to this article to ensure continued compliance.

(j) Any license in effect at the time of the passage of this section in the 2016 regular session of the Legislature shall remain in effect until such time as new legislative rules promulgated pursuant to this article become effective.  Upon the effective date of the new rules any licensee shall file for a new license within six months pursuant to the licensing procedures and requirements of this section and the new rules promulgated hereunder. The existing license shall remain effective until receipt of the new license.

§16-5Y-4. Office-based, medication-assisted treatment programs to obtain registration; application; fees and inspections.

(a) No person, partnership, association, or corporation may operate an office-based, medication-assisted treatment program without first obtaining a registration from the secretary in accordance with the provisions of this article and the rules lawfully promulgated pursuant to this article.

(b) Any person, partnership, association, or corporation desiring a registration to operate an office-based, medication-assisted treatment program in this state shall file with the Office of Health Facility Licensure and Certification an application in such form and with such information as the secretary shall prescribe and furnish accompanied by an application fee.

(c) The Director of the Office of Health Facility Licensure and Certification or his or her designee shall inspect and review all documentation submitted with the application.  The director shall then provide a recommendation to the secretary whether to approve or deny the application for registration. The secretary shall issue a registration if the facility is in compliance with the provisions of this article and with the rules lawfully promulgated pursuant to this article.

(d) A registration shall be issued in one of three categories:

(1) An initial 12-month registration shall be issued to an office-based, medication-assisted treatment program establishing a new program or service for which there is insufficient consumer participation to demonstrate substantial compliance with this article and with all rules promulgated pursuant to this article;

(2) A provisional registration shall be issued when an office-based, medication-assisted treatment program seeks a renewal registration, or is an existing program as of the effective date of this article and is seeking an initial registration, and the office-based, medication-assisted treatment program is not in substantial compliance with this article and with all rules promulgated pursuant to this article, but does not pose a significant risk to the rights, health, and safety of a consumer.  It shall expire not more than six months from the date of issuance, and may not be consecutively reissued; or

(3) A renewal registration shall be issued when an office-based, medication-assisted treatment program is in substantial compliance with this article and with all rules promulgated pursuant to this article. A renewal registration shall expire not more than one year from the date of issuance.

(e) At least 60 days prior to the registration expiration date, an application for renewal shall be submitted by the office-based, medication-assisted treatment program to the secretary on forms furnished by the secretary.  A registration shall be renewed if the secretary determines that the applicant is in compliance with this article and with all rules promulgated pursuant to this article.  A registration issued to one program location pursuant to this article is not transferrable or assignable. Any change of ownership of a registered office-based, medication-assisted treatment program requires submission of a new application. The office-based, medication-assisted treatment program shall notify the secretary of any change in ownership within 10 days of the change and must submit a new application within the time frame prescribed by the secretary.

(f) Any person, partnership, association, or corporation seeking to obtain or renew a registration for an office-based, medication-assisted treatment program in this state must submit to the secretary the following documentation:

(1) Full operating name of the program as advertised;

(2) Legal name of the program as registered with the West Virginia Secretary of State;

(3) Physical address of the program;

(4) Preferred mailing address for the program;

(5) Email address to be used as the primary contact for the program;

(6) Federal Employer Identification Number assigned to the program;

(7) All business licenses issued to the program by this state, the state Tax Department, the Secretary of State, and all other applicable business entities;

(8) Brief description of all services provided by the program;

(9) Hours of operation;

(10) Legal Registered Owner Name – name of the person registered as the legal owner of the program.  If more than one legal owner (i.e., partnership, corporation, etc.) list each legal owner separately, indicating the percentage of ownership;

(11) Medical director’s full name, medical license number, Drug Enforcement Administration registration number, and a listing of all current certifications;

(12) For each physician, counselor, or social worker of the program, provide the following:

(A) Employee’s role and occupation within the program;

(B) Full legal name;

(C) Medical license, if applicable;

(D) Drug Enforcement Administration registration number, if applicable;

(E) Drug Enforcement Administration identification number to prescribe buprenorphine for addiction, if applicable; and

(F) Number of hours worked at program per week;

(13) Name and location address of all programs owned or operated by the applicant;

(14) Notarized signature of applicant;

(15) Check or money order for registration fee;

(16) Verification of education and training for all physicians, counselors, and social workers practicing at or used by referral by the program such as fellowships, additional education, accreditations, board certifications, and other certifications; and

(17) Board of Pharmacy Controlled Substance Prescriber Report for each prescriber practicing at the program for the three months preceding the date of application.

(g) Upon satisfaction that an applicant has met all of the requirements of this article, the secretary shall issue a registration to operate an office-based, medication-assisted treatment program. An entity that obtains this registration may possess, have custody or control of, and dispense drugs indicated and approved by the United States Food and Drug Administration for the treatment of substance use disorders.

(h) The office-based, medication-assisted treatment program shall display the current registration in a prominent location where services are provided and in clear view of all patients.

(i) The secretary or his or her designee shall perform complaint and verification inspections on all office-based, medication-assisted treatment programs that are subject to this article and all rules adopted pursuant to this article to ensure continued compliance.

(j) Any person, partnership, association, or corporation operating an office-based, medication-assisted treatment program shall be permitted to continue operation until the effective date of the new rules promulgated pursuant to this article.  At that time a person, partnership, association, or corporation shall file for registration within six months pursuant to the licensing procedures and requirements of this section and the new rules promulgated hereunder. The existing procedures of the person, partnership, association, or corporation shall remain effective until receipt of the registration.

(k) A person, partnership, association, or corporation providing office-based, medication-assisted treatment to no more than 30 patients of their practice or program is exempt from the registration requirement contained in §16-5Y-4(a) of this code: Provided, That it:

(1) Attests to the Office of Health Facility Licensure and Certification on a form prescribed by the secretary that the person, partnership, association, or corporation requires counselling and drug screens, has implemented diversion control measures, has completed medical education training on addiction treatment encompassing all forms of medication-assisted treatment, will provide patient numbers upon request, and will provide any other information required by the secretary related to patient health and safety; and

(2) Is prohibited from establishing an office-based, medication-assisted treatment at any other location or facility after the submission of an attestation submitted pursuant to §16-5Y-4(k)(2) of this code.  This subdivision includes any person, partnership, association, or corporation that has an ownership interest in a partnership, association, or corporation or other corporate entity providing office-based, medication-assisted treatment.

(l)  A licensed behavioral health center, pursuant to Behavioral Health Center Licensure, 64 CSR 11, providing office-based medication-assisted treatment is exempt from the registration requirement contained in §16-5Y-4(a) of this code: Provided, That it:

(1)  Attests to the Office of Health Facility Licensure and Certification on a form prescribed by the secretary that the person, partnership, association, or corporation requires counseling and drugs screens, has implemented diversion control measures, will provide patient numbers upon request, and will provide any other information required by the secretary related to patient health and safety; and

(2)  Must notify the Office of Health Facility Licensure and Certification prior to establishing or terminating an office-based medication-assisted treatment program at any other licensed behavioral health center location after the submission of an attestation submitted pursuant to §16-5Y-4(l)(1) of this code.

§16-5Y-5. Operational requirements.

(a) The medication-assisted treatment program shall be licensed and registered in this state with the secretary, the Secretary of State, the State Tax Department, and all other applicable business or licensing entities.

(b) The program sponsor need not be a licensed physician but shall employ a licensed physician for the position of medical director, when required by the rules promulgated pursuant to this article.

(c) Each medication-assisted treatment program shall designate a medical director. If the medication-assisted treatment program is accredited by a Substance Abuse and Mental Health Services Administration approved accrediting body that meets nationally accepted standards for providing medication-assisted treatment, including the Commission on Accreditation of Rehabilitation Facilities or the Joint Commission on Accreditation of Healthcare Organizations, then the program may designate a medical director to oversee all facilities associated with the accredited medication-assisted treatment program. The medical director shall be responsible for the operation of the medication-assisted treatment program, as further specified in the rules promulgated pursuant to this article. He or she may delegate the day-to-day operation of a medication-assisted treatment program as provided in rules promulgated pursuant to this article. Within 10 days after termination of a medical director, the medication-assisted treatment program shall notify the director of the identity of another medical director for that program. Failure to have a medical director practicing at the program may be the basis for a suspension or revocation of the program license. The medical director shall:

(1) Have a full, active, and unencumbered license to practice allopathic medicine or surgery from the West Virginia Board of Medicine or to practice osteopathic medicine or surgery from the West Virginia Board of Osteopathic Medicine in this state and be in good standing and not under any probationary restrictions;

(2) Meet both of the following training requirements:

(A) If the physician prescribes a partial opioid agonist, he or she shall complete the requirements for the Drug Addiction Treatment Act of 2000; and

(B) Complete other programs and continuing education requirements as further described in the rules promulgated pursuant to this article;

(3) Practice at the licensed or registered medication-assisted treatment program a sufficient number of hours, based upon the type of medication-assisted treatment license or registration issued pursuant to this article, to ensure regulatory compliance, and carry out those duties specifically assigned to the medical director as further described in the rules promulgated pursuant to this article;

(4) Be responsible for monitoring and ensuring compliance with all requirements related to the licensing and operation of the medication-assisted treatment program;

(5) Supervise, control, and direct the activities of each individual working or operating at the medication-assisted treatment program, including any employee, volunteer, or individual under contract, who provides medication-assisted treatment at the program or is associated with the provision of that treatment. The supervision, control, and direction shall be provided in accordance with rules promulgated by the secretary; and

(6) Complete other requirements prescribed by the secretary by rule.

(d) Each medication-assisted treatment program shall designate counseling staff, either employees, or those used on a referral-basis by the program, which meet the requirements of this article and the rules promulgated pursuant to this article. The individual members of the counseling staff shall have one or more of the following qualifications:

(1) Be a licensed psychiatrist;

(2) Certification as an alcohol and drug counselor;

(3) Certification as an advanced alcohol and drug counselor;

(4) Be a counselor, psychologist, marriage and family therapist, or social worker with a master’s level education with a specialty or specific training in treatment for substance use disorders, as further described in the rules promulgated pursuant to this article;

(5) Under the direct supervision of an advanced alcohol and drug counselor, be a counselor with a bachelor’s degree in social work or another relevant human services field: Provided, That the individual practicing with a bachelor’s degree under supervision applies for certification as an alcohol and drug counselor within three years of the date of employment as a counselor;

(6) Be a counselor with a graduate degree actively working toward licensure or certification in the individual’s chosen field under supervision of a licensed or certified professional in that field and/or advanced alcohol and drug counselor;

(7) Be a psych-mental health nurse practitioner or a psych-mental health clinical nurse specialist; or

(8) Be a psychiatry CAQ-certified physician assistant.

(e) The medication-assisted treatment program shall be eligible for, and not prohibited from, enrollment with West Virginia Medicaid and other private insurance. Prior to directly billing a patient for any medication-assisted treatment, a medication-assisted treatment program must receive either a rejection of prior authorization, rejection of a submitted claim, or a written denial from a patient’s insurer or West Virginia Medicaid denying coverage for such treatment: Provided, That the secretary may grant a variance from this requirement pursuant to §15-5Y-6 of this code. The program shall also document whether a patient has no insurance. At the option of the medication-assisted treatment program, treatment may commence prior to billing.

(f) The medication-assisted treatment program shall apply for and receive approval as required from the United States Drug Enforcement Administration, Center for Substance Abuse Treatment, or an organization designated by Substance Abuse and Mental Health and Mental Health Administration.

(g) All persons employed by the medication-assisted treatment program shall comply with the requirements for the operation of a medication-assisted treatment program established within this article or by any rule adopted pursuant to this article.

(h) All employees of an opioid treatment program shall furnish fingerprints for a state and federal criminal records check by the Criminal Identification Bureau of the West Virginia State Police and the Federal Bureau of Investigation. The fingerprints shall be accompanied by a signed authorization for the release of information and retention of the fingerprints by the Criminal Identification Bureau and the Federal Bureau of Investigation. The opioid treatment program shall be subject to the provisions of §16-49-1 et seq. of this code and subsequent rules promulgated thereunder.

(i) The medication-assisted treatment program shall not be owned by, nor shall it employ or associate with, any physician or prescriber:

(1) Whose Drug Enforcement Administration number is not currently full, active, and unencumbered;

(2) Whose application for a license to prescribe, dispense, or administer a controlled substance has been denied by and is not full, active, and unencumbered in any jurisdiction; or

(3) Whose license is anything other than a full, active, and unencumbered license to practice allopathic medicine or surgery by the West Virginia Board of Medicine or osteopathic medicine or surgery by the West Virginia Board of Osteopathic Medicine in this state, and who is in good standing and not under any probationary restrictions.

(j) A person may not dispense any medication-assisted treatment medication, including a controlled substance as defined by §60A-1-101 of this code, on the premises of a licensed medication-assisted treatment program, unless he or she is a physician or pharmacist licensed in this state and employed by the medication-assisted treatment program unless the medication-assisted treatment program is a federally certified narcotic treatment program. Prior to dispensing or prescribing medication-assisted treatment medications, the treating physician must access the Controlled Substances Monitoring Program Database to ensure the patient is not seeking medication-assisted treatment medications that are controlled substances from multiple sources and to assess potential adverse drug interactions, or both. Prior to dispensing or prescribing medication-assisted treatment medications, the treating physician shall also ensure that the medication-assisted treatment medication utilized is related to an appropriate diagnosis of a substance use disorder and approved for such usage. The physician shall also review the Controlled Substances Monitoring Program Database no less than quarterly and at each patient’s physical examination. The results obtained from the Controlled Substances Monitoring Program Database shall be maintained with the patient’s medical records.

(k) A medication-assisted treatment program responsible for medication administration shall comply with:

(1) The West Virginia Board of Pharmacy regulations;

(2) The West Virginia Board of Examiners for Registered Professional Nurses regulations;

(3) All applicable federal laws and regulations relating to controlled substances; and

(4) Any requirements as specified in the rules promulgated pursuant to this article.

(l) Each medication-assisted treatment program location shall be licensed separately, regardless of whether the program is operated under the same business name or management as another program.

(m) The medication-assisted treatment program shall develop and implement patient protocols, treatment plans, or treatment strategies and profiles, which shall include, but not be limited by, the following guidelines:

(1) When a physician diagnoses an individual as having a substance use disorder, the physician may treat the substance use disorder by managing it with medication in doses not exceeding those approved by the United States Food and Drug Administration as indicated for the treatment of substance use disorders and not greater than those amounts described in the rules promulgated pursuant to this article. The treating physician and treating counselor’s diagnoses and treatment decisions shall be made according to accepted and prevailing standards for medical care;

(2) The medication-assisted treatment program shall maintain a record of all of the following:

(A) Medical history and physical examination of the individual;

(B) The diagnosis of substance use disorder of the individual;

(C) The plan of treatment proposed, the patient’s response to the treatment, and any modification to the plan of treatment;

(D) The dates on which any medications were prescribed, dispensed, or administered, the name and address of the individual for whom the medications were prescribed, dispensed, or administered, and the amounts and dosage forms for any medications prescribed, dispensed, or administered;

(E) A copy of the report made by the physician or counselor to whom referral for evaluation was made, if applicable; and

(F) A copy of the coordination of care agreement, which is to be signed by the patient, treating physician, and treating counselor. If a change of treating physician or treating counselor takes place, a new agreement must be signed. The coordination of care agreement must be updated or reviewed at least annually. If the coordination of care agreement is reviewed, but not updated, this review must be documented in the patient’s record. The coordination of care agreement will be provided in a form prescribed and made available by the secretary;

(3) Medication-assisted treatment programs shall report information, data, statistics, and other information as directed in this code, and the rules promulgated pursuant to this article to required agencies and other authorities;

(4) A prescriber authorized to prescribe a medication-assisted treatment medication who practices at a medication-assisted treatment program is responsible for maintaining the control and security of his or her prescription blanks and any other method used for prescribing a medication-assisted treatment medication. The prescriber shall comply with all state and federal requirements for tamper-resistant prescription paper. In addition to any other requirements imposed by statute or rule, the prescriber shall notify the secretary and appropriate law-enforcement agencies in writing within 24 hours following any theft or loss of a prescription blank or breach of any other method of prescribing a medication-assisted treatment medication; and

(5) The medication-assisted treatment program shall have a drug testing program to ensure a patient is in compliance with the treatment strategy.

(n) Medication-assisted treatment programs shall only prescribe, dispense, or administer liquid methadone to patients pursuant to the restrictions and requirements of the rules promulgated pursuant to this article.

(o) The medication-assisted treatment program shall immediately notify the secretary, or his or her designee, in writing of any changes to its operations that affect the medication-assisted treatment program’s continued compliance with the certification and licensure requirements.

(p) If a physician treats a patient with more than 16 milligrams per day of buprenorphine then clear medical notes shall be placed in the patient’s medical file indicating the clinical reason or reasons for the higher level of dosage.

(q) If a physician is not the patient’s obstetrical or gynecological provider, the physician shall consult with the patient’s obstetrical or gynecological provider to the extent possible to determine whether the prescription is appropriate for the patient.

(r) A practitioner providing medication-assisted treatment may perform certain aspects of telehealth if permitted under his or her scope of practice.

(s) The physician shall follow the recommended manufacturer’s tapering schedule for the medication-assisted treatment medication. If the schedule is not followed, the physician shall document in the patient’s medical record and the clinical reason why the schedule was not followed. The secretary may investigate a medication-assisted treatment program if a high percentage of its patients are not following the recommended tapering schedule.

§16-5Y-6. Restrictions; variances and waivers.

(a) A medication-assisted treatment program shall not be located, operated, managed or owned at the same location where a chronic pain management clinic licensed and defined in article five-h, chapter sixteen of this code is located.

(b) Medication-assisted treatment programs shall not have procedures for offering a bounty, monetary, equipment, or merchandise reward, or free services for individuals in exchange for recruitment of new patients into the facility.

(c) Medication-assisted treatment programs shall not be located within one-half mile of a public or private licensed day care center or public or private K-12 school.

Existing medication-assisted treatment programs, including both opioid treatment programs and office based medication-assisted treatment programs that are located within one-half mile of a public or private licensed day care center or public or private K-12 school, shall be granted a variance, provided that the facility demonstrates adequate patient population controls and that it may otherwise meet the requirements of this article and the rules promulgated pursuant to this article.

(d) The secretary may grant a waiver or a variance from any licensure or registration standard, or portion thereof, for the period during which the license or registration is in effect.

(1) Requests for waivers or variances of licensure or registration standards shall be in writing to the secretary and shall include:

(A) The specific section of this article or rules promulgated pursuant to this article for which a waiver or variance is sought;

(B) The rationale for requesting the waiver or variance;

(C) Documentation by the medication-assisted treatment program’s medical director to the secretary that describes how the program will maintain the quality of services and patient safety if the wavier or variance is granted; and

(D) The consequences of not receiving approval of the requested wavier or variance.

(2) The secretary shall issue a written statement to the medication-assisted treatment program granting or denying a request for a waiver or variance of program licensure or registration standards.

(3) The medication-assisted treatment program shall maintain a file copy of all requests for waivers or variances and the approval or denial of the requests for the period during which the license or registration is in effect.

(4) The Office of Health Facility Licensure and Certification shall inspect each medication-assisted treatment program prior to a waiver or variance being granted, including a review of patient records, to ensure and verify that any waiver or variance request meets the spirit and purpose of this article and the rules promulgated pursuant to this article.  The Office of Health Facility Licensure and Certification may verify, by unannounced inspection, that the medication-assisted treatment program is in compliance with any waiver or variance granted by the secretary for the duration of such waiver or variance.

§16-5Y-7.  Inspection; inspection warrant.

(a) The Office of Health Facility Licensure and Certification shall inspect each opioid treatment program annually, including a review of the patient records, to ensure that the program complies with this article and the applicable rules.  A pharmacist, employed or contracted by the secretary, licensed in this state, and a law-enforcement officer may be present at each inspection.

(b) The Office of Health Facility Licensure and Certification shall perform unannounced complaint and verification inspections at office based medication-assisted treatment programs, including a review of the patient records, to ensure that the program complies with this article and the applicable rules.  A pharmacist, employed or contracted by the secretary, licensed in this state and a law-enforcement officer may be present at each inspection.

(c) During an onsite inspection, the inspectors shall make a reasonable attempt to discuss each violation with the medical director or other owners of the medication-assisted treatment program before issuing a formal written notification.

(d) Any action taken to correct a violation shall be documented in writing by the medical director or other owners of the medication-assisted treatment program and may be verified by follow-up visits by the Office of Health Facility Licensure and Certification.

(e) Notwithstanding the existence or pursuit of any other remedy, the secretary may, in the manner provided by law, maintain an action in the name of the state for an inspection warrant against any person, partnership, association or corporation to allow any inspection or seizure of records in order to complete any inspection allowed by this article or the rules promulgated pursuant to this article, or to meet any other purpose of this article or the rules promulgated pursuant to this article.

(f) When possible, inspections for annual certification and licensure by the medication-assisted treatment programs will be done consecutively or concurrently.  However, this provision does not limit the ability to conduct unannounced inspections pursuant to a complaint.

§16-5Y-8. License and registration limitation; denial; suspension; revocation.

(a) The secretary may, by order, impose a ban on the admission of patients or reduce the patient capacity of the medication-assisted treatment program, or any combination thereof, when he or she finds upon inspection of the medication-assisted treatment program that the licensee or registrant is not providing adequate care under the medication-assisted treatment program’s existing patient quota, and that a reduction in quota or imposition of a ban on admissions, or any combination thereof, would place the licensee or registrant in a position to render adequate care.  Any notice to a licensee or registrant of reduction in quota or ban on new admissions shall include the terms of the order, the reasons therefor and the date set for compliance.

(b) The secretary shall deny, suspend or revoke a license or registration issued pursuant to this article if the provisions of this article or of the rules promulgated pursuant to this article are violated.  The secretary may revoke a program’s license or registration and prohibit all physicians and licensed disciplines associated with that medication-assisted treatment program from practicing at the program location based upon an annual, periodic, complaint, verification or other inspection and evaluation.

(c) Before any such license or registration is denied, suspended or revoked, however, written notice shall be given to the licensee or registrant, stating the grounds for such denial, suspension or revocation.

(d) An applicant, licensee or registrant has ten working days after receipt of the secretary’s order denying, suspending or revoking a license or registration to request a formal hearing contesting such denial, suspension or revocation of a license or registration under this article.  If a formal hearing is requested, the applicant, licensee or registrant and the secretary shall proceed in accordance with the provisions of article five, chapter twenty-nine-a of this code.

(e) If a license or registration is denied or revoked as herein provided, a new application for license or registration shall be considered by the secretary if, when and after the conditions upon which the denial or revocation was based have been corrected and evidence of this fact has been furnished.  A new license or registration shall then be granted after proper inspection, if applicable, has been made and all provisions of this article and rules promulgated pursuant to this article have been satisfied.

(f) Any applicant, licensee or registrant who is dissatisfied with the decision of the secretary as a result of the hearing provided in this section may, within thirty days after receiving notice of the decision, petition the circuit court of Kanawha County, in term or in vacation, for judicial review of the decision.

(g) The court may affirm, modify or reverse the decision of the secretary and either the applicant, licensee or registrant, or the secretary may appeal from the court’s decision to the Supreme Court of Appeals.

(h) If the license or registration of a medication-assisted treatment program is denied, suspended or revoked, the medical director of the program, any owner of the program or owner or lessor of the medication-assisted treatment program property shall cease to operate the clinic, facility, office or program as a medication-assisted treatment program as of the effective date of the denial, suspension or revocation.  The owner or lessor of the medication-assisted treatment program property is responsible for removing all signs and symbols identifying the premises as a medication-assisted treatment program within thirty days.  Any administrative appeal of such denial, suspension or revocation shall not stay the denial, suspension or revocation.

(i) Upon the effective date of the denial, suspension or revocation, the medical director of the medication-assisted treatment program shall advise the secretary and the Board of Pharmacy of the disposition of all medications located on the premises.  The disposition is subject to the supervision and approval of the secretary.  Medications that are purchased or held by a medication-assisted treatment program that is not licensed may be deemed adulterated.

(j) If the license or registration of a medication-assisted treatment program is suspended or revoked, any person named in the licensing or registration documents of the program, including persons owning or operating the medication-assisted treatment program, may not, as an individual or as part of a group, apply to operate another medication-assisted treatment program for up to five years after the date of suspension or revocation.  The secretary may grant a variance pursuant to section six of this article to the prohibition of this subsection.

(k) The period of suspension for the license or registration of a medication-assisted treatment program shall be prescribed by the secretary, but may not exceed one year.

§16-5Y-9. Violations; penalties; injunction.

(a) Any person, partnership, association or corporation which establishes, conducts, manages or operates a medication-assisted treatment program without first obtaining a license or registration as herein provided, or who violates any provisions of this article or any rule lawfully promulgated pursuant to this article, shall be assessed a civil penalty by the secretary in accordance with this subsection. Each day of continuing violation after conviction shall be considered a separate violation:

(1) If a medication-assisted treatment program or any owner or medical director is found to be in violation of any provision of this article, unless otherwise noted herein, the secretary may limit, suspend or revoke the program’s license or registration;

(2) If the program’s medical director knowingly and intentionally misrepresents actions taken to correct a violation, the secretary may impose a civil money penalty not to exceed $10,000 and, in the case of any owner-operator medication-assisted treatment program, limit or revoke a medication-assisted treatment program’s license or registration;

(3) If any owner or medical director of a medication-assisted treatment program concurrently operates an unlicensed or unregistered medication-assisted treatment program, the secretary may impose a civil money penalty upon the owner or medical director, or both, not to exceed $5,000 per day;

(4) If the owner of a medication-assisted treatment program that requires a license or registration under this article fails to apply for a new license or registration for the program upon a change of ownership and operates the program under new ownership, the secretary may impose a civil money penalty upon the owner, not to exceed $5,000; or

(5) If a physician operates, owns or manages an unlicensed or unregistered medication-assisted treatment program that is required to be licensed or registered pursuant to this article; knowingly prescribes or dispenses or causes to be prescribed or dispensed, a medication-assisted treatment medication through misrepresentation or fraud; procures, or attempts to procure, a license or registration for a medication-assisted treatment program for any other person by making or causing to be made any false representation, the secretary may assess a civil money penalty of not more than $20,000.  The penalty may be in addition to or in lieu of any other action that may be taken by the secretary or any other board, court or entity.

(b) Notwithstanding the existence or pursuit of any other remedy, the secretary may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association or corporation to restrain or prevent the establishment, conduct, management or operation of any medication-assisted treatment program or violation of any provision of this article or any rule lawfully promulgated thereunder without first obtaining a license or registration in the manner herein provided.

(c) In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the secretary shall consider the following factors:

(1) The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient has resulted, or could have resulted, from the medication-assisted treatment program’s actions or the actions of the medical director or any practicing physician, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;

(2) What actions, if any, the owner or medical director took to correct the violations;

(3) Whether there were any previous violations at the medication-assisted treatment program; and

(4) The financial benefits that the medication-assisted treatment program derived from committing or continuing to commit the violation.

(d) Upon finding that a physician has violated the provisions of this article or rules adopted pursuant to this article, the secretary shall provide notice of the violation to the applicable licensing board.

§16-5Y-10. Advertisement disclosure.

Any advertisement made by or on behalf of a medication-assisted treatment program through public media, such as a telephone directory, medical directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication, concerning the treatment of substance use disorders, as defined in section two of this article, shall include the name of, at a minimum, the medical director responsible for the content of the advertisement.

§16-5Y-11. State Opioid Treatment Authority.

(a) Prior to establishing, operating, maintaining or advertising a medication-assisted treatment program within this state, a medication-assisted treatment program shall be approved by the state opioid treatment authority for operation of a medication-assisted treatment program in this state.

(b) The state opioid treatment authority shall act as the state’s coordinator for the development and monitoring of medication-assisted treatment programs and it shall serve as a liaison with the appropriate federal agencies.

(c) The designated state oversight agency is responsible for licensing, monitoring and investigating complaints and grievances regarding medication-assisted treatment programs.

(d) The powers and duties of the state opioid treatment authority include, but are not limited to, the following:

(1) Facilitate the development and implementation of rules, regulations, standards and best practice guidelines to ensure the quality of services delivered by medication-assisted treatment programs;

(2) Act as a liaison between relevant state and federal agencies;

(3) Review medication-assisted treatment guidelines, rules, regulations and recovery models for individualized treatment plans of care developed by the federal government and other nationally recognized authorities approved by the secretary;

(4) Ensure delivery of technical assistance and informational materials to medication-assisted treatment programs as needed;

(5) Perform both scheduled and unscheduled site visits to medication-assisted treatment programs in cooperation with the identified state oversight agency when necessary and appropriate;

(6) Consult with the federal government regarding approval or disapproval of requests for exceptions to federal regulations, where appropriate;

(7) Review and approve exceptions to federal and state dosage policies and procedures;

(8) Receive and refer patient appeals and grievances to the designated state oversight agency when appropriate; and

(9) Work cooperatively with other relevant state agencies to determine the services needed and the location of a proposed medication-assisted treatment program.

§16-5Y-12.  Moratorium; certificate of need.

There is a moratorium on the licensure of new opioid treatment programs which do not have a certificate of need as of the effective date of the enactment of this section during the 2016 regular session of the Legislature which shall continue until the Legislature determines that there is a necessity for additional opioid treatment programs in West Virginia.

§16-5Y-13. Rules; minimum standards for medication-assisted treatment programs.

(a) The secretary shall promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code for the licensure of medication-assisted treatment programs to ensure adequate care, treatment, health, safety, welfare and comfort of patients at these facilities.  These rules shall include, at a minimum:

(1) The process to be followed by applicants seeking a license;

(2) The qualifications and supervision of licensed and nonlicensed personnel at medication-assisted treatment programs and training requirements for all facility health care practitioners who are not regulated by another board;

(3) The provision and coordination of patient care, including the development of a written plan of care and patient contract;

(4) The management, operation, staffing and equipping of the medication-assisted treatment program;

(5) The clinical, medical, patient and business records kept by the medication-assisted treatment program;

(6) The procedures for inspections and for review of utilization and quality of patient care;

(7) The standards and procedures for the general operation of a medication-assisted treatment program, including facility operations, physical operations, infection control requirements, health and safety requirements and quality assurance;

(8) Identification of drugs that may be used to treat substance use disorders that identify a facility as a medication-assisted treatment program;

(9) Any other criteria that identify a facility as a medication-assisted treatment program;

(10) The standards and procedures to be followed by an owner in providing supervision, direction and control of individuals employed by or associated with a medication-assisted treatment program;

(11) Data collection and reporting requirements;

(12) Criteria and requirements related to specific medication-assisted treatment medications; and

(13) Such other standards or requirements as the secretary determines are appropriate.

(b) 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.

§16-5Z-1. Creation of the Coalition for Diabetes Management.

[Repealed.]

§16-5Z-2. Members of the Coalition for Diabetes Management.

[Repealed.]

§16-5Z-3. Powers and duties of the coalition.

[Repealed.]

§16-5Z-4. Cooperation with the coalition.

[Repealed.]

§16-5Z-5. Sunset.

[Repealed.]

§16-6-1.

Repealed. Acts, 1977 Reg. Sess., Ch. 102.

§16-6-2. Regulations by state board of health Should this be Secretary of the Department of Health and ; enforcement of orders and laws respecting pure food.

The West Virginia board of health shall make such rules and regulations, not inconsistent with law, as in their judgment are necessary to carry out the provisions of this article. The director of the state department of health shall enforce any orders made by the board of health and any laws of the state respecting pure food, so far as they relate to hotels and restaurants.

§16-6-3. Hotel and restaurant defined; hotels and restaurants not subject to provisions of article.

For the purpose of this article, every building where food and lodging are usually furnished to guests and payment required therefor shall be deemed a hotel, and every place where food without lodging is usually furnished to guests and payment required therefor shall be deemed a restaurant. But the provisions of this article, except those of sections twenty and twenty-two, shall not apply to any hotel wherein there are fewer than ten bed chambers, nor to any hotel known as a "summer hotel" which is not open for guests from November fifteenth to May fifteenth. The provisions of this article shall not apply to temporary food sales, not exceeding two weeks in length, by religious, educational, charitable or nonprofit organizations.

§16-6-4. Application for inspection of hotel or restaurant; temporary permit; certificate of inspection; fee.

Every person, firm or corporation proposing to operate a hotel or restaurant shall apply to the director of health for an inspection and certificate thereof, and said inspector shall inspect the premises described in such application as soon thereafter as may be practicable; but if it be impracticable to do so within ten days after receiving such application, said director may issue to such applicant a temporary permit which shall be valid until a regular inspection is made. Only one certificate or permit shall be issued where a hotel and restaurant are combined and operated in the same building and under the same management. Each certificate or permit shall expire on June 30 next following its issuance, and no hotel or restaurant shall be maintained and operated in this state without the certificate of inspection thereof as herein prescribed, which certificate shall be posted in the main public room of such hotel or restaurant, and shall show the date of each inspection and the notations relating thereto by the director of health. No such certificate shall be transferable. The fee for such inspection and certificate or permit shall be, for a hotel, $2.25 additional for each bedroom in excess of seven; and for a restaurant, $2.25 additional for each five chairs or stools, or spaces where persons are fed, in excess of ten, but no fee shall exceed $10. Such director shall, on the first of each month, pay into the State Treasury all fees collected for inspections during the preceding month. Every certificate of inspection or permit under this article shall be made and issued in duplicate.

§16-6-5. Form and content of application for inspection; payment of fee.

The applicant for inspection of a hotel or restaurant shall file with the department of health a written application, in form to be prescribed by the director of health, which shall set forth the name and address of the owner of the building or property to be occupied, and of the agent of any such owner; the name and address of the lessee and manager, if any, of the hotel or restaurant; the location of such hotel or restaurant and a full description of the building or property to be occupied and such other matters as may be required by the director of health. The fee for inspection shall be paid to the director of health when the application is filed by him

§16-6-6. Contents of certificate and permit; posting.

Every such certificate shall show that the hotel or restaurant is equipped and conducted according to law, and shall be kept posted in some conspicuous place in such hotel or restaurant. Every such permit shall show, according to the fact, why it is granted, and that the hotel or restaurant is, according to law, permitted to be kept, and it shall be kept posted in like manner.

§16-6-7. Certificate or permit prerequisite to license.

No license to keep a hotel or restaurant, or certificate for such license, shall hereafter be authorized or issued unless there be first filed with the county commission to which application therefor is made, a certificate of inspection or permit, granted by the director of health, as provided in this article. Every such license shall bear on its face a reference to such certificate of inspection or permit.

§16-6-8. Annual inspection of hotels and restaurants; powers and duties of director of health.

The director of health shall inspect or cause to be inspected, at least once annually, every hotel and restaurant in the state. For that purpose he or any person designated by him shall have the right of entry and access at any reasonable time to inspect kitchens where food is prepared, pantry and storage rooms pertaining thereto, dining rooms, lunch counters, and every place where articles pertaining to the serving of the public are kept or prepared. The said director shall prohibit the use of any article not in keeping with cleanliness and good sanitary conditions. He shall also have the right to enter any and all parts of a hotel at all reasonable hours to make such inspection, and every person in the management or control thereof shall afford free access to every part of the hotel and render all assistance necessary to enable the director to make full, thorough and complete examination thereof, but the privacy of any guest in any room occupied by him shall not be invaded without his consent.

§16-6-9. Alterations and changes by owner; penalty for refusal or failure to make.

Whenever, upon such inspection, it shall be found that any such hotel or restaurant is not equipped or operated in the manner and under the conditions required by the provisions of this article, the director of health shall notify the owner, manager or agent in charge of such hotel or restaurant of such changes or alterations as, in the judgment of the director, may be necessary to effect a complete compliance with said provisions. Such owner, manager or agent shall thereupon make such alterations or changes as may be necessary to put such buildings and premises in a condition, and operate it in a manner, that will fully comply with the requirements of this article: Provided, That due time after receiving such notice shall be allowed for conforming to the requirements thereof, which time shall be specified in the notice. Should the changes or alterations directed by such notice not be made in the time specified therein, the said director shall proceed against the person or persons in default in any court having jurisdiction to enforce the provisions of this article against him or them. Every person, firm or corporation which shall fail or refuse to comply with the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined $5 for each and every day such failure or refusal may continue. If such failure or refusal shall continue for thirty days after the time specified in the notice from the director for conforming to the requirements thereof, the director may proceed in the circuit court of the county wherein such hotel or restaurant is located, for an order closing it. After such order is issued, the building or property shall not again be used as a hotel or restaurant until a certificate or permit therefor shall have been issued by the director, and any disobedience of such order may be punished as other contempts of court. Reasonable notice shall be given of the application for such order.

§16-6-10. Notices by director of health.

All notices given under this article shall be in writing and shall either be delivered in person or sent by registered mail.

§16-6-11. Lighting; plumbing; ventilation.

Every hotel and restaurant in this state shall be properly lighted by day and by night, shall be properly plumbed and ventilated, and shall be conducted in every department with strict regard for the health, comfort and safety of its guests. Such proper plumbing and draining shall be done and maintained according to approved sanitary principles. Such proper ventilation shall be construed to require at least one door and one window in every sleeping room, which window shall permit easy access to the outside of the building, light well or court. No room shall be used as a sleeping room which does not open to the outside of the building or light wells, air shafts or courts.

§16-6-12. Water closets.

In every city, town or village where a system of waterworks and sewerage is maintained for public use, every hotel therein shall be equipped with suitable water closets for the accommodation of guests, which water closets shall be connected by proper plumbing with such sewer system, and so constructed that they may be flushed with water in such manner as to prevent sewer gas or effluvia arising therefrom. All lavatories, bathtubs, sinks, drains, closets and urinals in such hotels shall be furnished and equipped in similar manner.

§16-6-13. Privies.

[Repealed.]

§16-6-14. Washrooms; towels.

All hotels in this state shall be provided with a general washroom convenient and of easy access to guests, and in each bedroom and general washroom there shall be furnished for each registered guest clean, individual towels, of cotton or linen, so that no two or more registered guests will be required to use the same towel, unless it has first been washed. Such individual towel shall not be less than twelve inches wide and eighteen inches long after being washed.

§16-6-15. Beds and floor coverings.

Every hotel shall provide each bed, bunk, cot, or other sleeping place for the use of guests with pillow slips and under and top sheets, the under sheet to be of sufficient size to completely cover the mattress and springs, and the top sheet to be of like width and at least ninety-nine inches long and not to be less than ninety inches in length after having been laundered. Such sheets and pillow slips shall be made of white cotton or linen, and all such sheets and pillow slips, after being used by one guest, shall be washed and ironed before being used by another guest, a clean set being furnished each succeeding guest. All bedding, including mattresses, quilts, blankets, pillows, and all carpets and floor covering used in any hotel in this state, shall be thoroughly aired, disinfected and kept clean.

§16-6-16. Bedbugs.

In every hotel, any room infected with vermin or bedbugs shall be fumigated, disinfected and renovated until said vermin or bedbugs are extirpated.

§16-6-17. Employment of person having communicable disease.

No person, firm or corporation engaged in conducting a hotel or a restaurant shall knowingly have in its employ any person who has an infectious or communicable disease.

§16-6-18. Disinfection of rooms and beds; penalty.

Every person keeping or conducting a hotel shall see that every room or bed, which has been occupied by any person known to have an infectious or communicable disease at the time of such occupancy, is thoroughly disinfected by methods to be prescribed by the West Virginia board of health before such room or bed shall be occupied by any other person. Any person violating the provisions of this section shall be subject to a fine not exceeding $300, and to confinement in jail not exceeding six months, or both, at the discretion of the court.

§16-6-19. Hallways; fire escapes.

Whenever it shall be proposed to erect a building three stories or more in height, intended for use as a hotel in this state, it shall be the duty of the owner or proprietor of such hotel to construct the same so that one main hallway on each floor above the ground floor shall run to an opening in the outside wall of the building. Every building used as a hotel shall comply with the provisions of this code pertaining to fire escapes. All fire escapes shall be indicated by a red light and a placard in each hallway leading to such fire escapes.

§16-6-20. Knotted rope or other fire escape in rooms; exception.

Each keeper of a hotel in this state shall provide and keep constantly in each room of the hotel, above the second floor, a knotted rope, wire ladder or other proper fire escape of sufficient strength and length, strongly attached or fastened to some outside window in said room, by which any person or persons in any of the rooms in such buildings may escape from the windows in case of fire: Provided, That the provisions of this section shall not apply to any hotel that has a regular and proper fire escape, connected with each hall in said hotel.

§16-6-21. Fire extinguishers.

Every hotel shall be provided with one fire extinguisher, of style and size approved by the national board of fire underwriters, on each floor containing twenty-five hundred square feet of floor area; and one additional fire extinguisher on each floor for each additional twenty-five hundred square feet of floor area, or fraction thereof. Every such extinguisher shall be placed in a convenient location in the public hallway, outside of sleeping rooms, at or near the head of stairs, and shall always be in condition for use.

§16-6-22. Liability of hotel or restaurant keeper for loss of property; deposit of valuables.

It shall be the duty of the keepers of hotels and restaurants to exercise due care and diligence in providing honest servants and employees, and to take every reasonable precaution to protect the persons and property of their guests and boarders, but no such keeper of any hotel or restaurant shall be held liable in a greater sum than $250 for the loss of any wearing apparel, baggage or other property, not hereinafter mentioned, belonging to a guest or boarder, when such loss takes place from the room or rooms occupied by said guest or boarder; and no keeper of a hotel or restaurant shall be held liable for any loss on the part of any guest or boarder of jewelry, money or other valuables of like nature, provided such keeper shall have posted in a conspicuous place in the room or rooms occupied by such guest or boarder, and in the hotel office and public reception room of such hotel or restaurant, a notice stating that jewelry, money and other valuables of like nature must be deposited in the office of such hotel (or restaurant), unless such loss shall take place from such office after such deposit.

§16-6-22a. Sulfite use warning.

[Repealed.]

§16-6-23. Offenses.

Any person, firm, or corporation operating a hotel or a restaurant in this state, or who shall let a building to be used for such purposes, without first having complied with the provisions of this article, is guilty of a misdemeanor and, upon conviction thereof, shall be fined $50 for each day the failure to comply continues.

§16-6-24. Prosecution.

The prosecuting attorney of each county in this state is hereby authorized and required, upon complaint under oath of the director of health, or other person or persons, to prosecute to termination before any court of competent jurisdiction, in the name of the state, a proper action or proceeding against any person or persons violating the provisions of this article.

§16-6-25

Repealed

Acts, 1988 Reg. Sess., Ch. 66.

§16-7-1. Manufacture or sale of adulterated food or drugs prohibited; definition of terms.

No person shall, within this state, manufacture for sale, offer for sale, or sell, any drug or article of food which is adulterated within the meaning of this article. The term "drug," as used herein, shall include all medicines for internal or external use, antiseptics, disinfectants and cosmetics. The term "food," as used herein, shall include all articles used for food, drink, confectionery or condiment by man, whether simple, mixed or compound.

§16-7-2. What constitutes adulteration.

Any drug or article of food shall be deemed to be adulterated within the meaning of this article:

(a) In the case of drugs: (1) If, when sold under or by a name recognized in the United States Pharmacopoeia official at that time, it differs from the standard of strength, quality or purity laid down therein; (2) if, when sold under or by a name not recognized in the United States Pharmacopoeia official at the time, but which is found in some other pharmacopoeia or other standard work of materia medica, it differs materially from the standard of strength, quality or purity laid down in such work; (3) if its strength, quality or purity falls below the professed standard under which it is sold; (4) if it be an imitation of, or offered for sale under the name of, another article; (5) if the contents of the package as originally put up shall have been removed in whole or in part, and other contents shall have been placed in such package, or if the package fails to bear a statement on the label of the quantity or proportion of any alcohol, morphine, opium, cocaine, heroin, alpha or beta eucaine, chloroform, cannabis indicia, chloral hydrate, acetanilide or any derivative or preparation of any such substance contained therein: Provided, That nothing in this paragraph shall be construed to apply to the dispensing of prescriptions written by regular licensed practicing physicians, veterinary surgeons or dentists, and kept on file by the dispensing pharmacist, nor to such drugs as are recognized in the United States Pharmacopoeia and the National Formulary, which are sold under the name by which they are recognized;

(b) In the case of food, drink, confectionery or condiment: (1) If any substance or substances have been mixed with it, so as to lower or depreciate or injuriously affect its quality, strength or purity; (2) if any inferior or cheaper substance or substances have been substituted wholly or in part for it; (3) if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it; (4) if it is an imitation of, or is sold under the name of, another article; (5) if it consists wholly or in part of diseased, decomposed, putrid, infected, tainted or rotten animal or vegetable substance, whether manufactured or not, or, in the case of milk, if it is the product of a diseased animal; (6) if it is colored, coated, polished or powdered, whereby damage or inferiority is concealed, or if by any means it is made to appear better or of greater value than it really is; (7) if it contains any added substance or ingredients which are poisonous or injurious to the health; (8) if it is sold under a coined name and does not contain some ingredient suggested by such name or contains only an inconsiderable quantity; (9) if the package containing it or any label thereon shall bear any statement regarding it or its composition which shall be false or misleading in any particular: Provided, That the provisions of this article shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food or drink, if each and every package sold or offered for sale is distinctly labeled in words of the English language as mixtures or compounds, with the name and percent of each ingredient therein; the word "compound" or "mixture" shall be printed in type not smaller in either height or width than one half the largest type upon any label on the package, and the formula shall be printed in letters not smaller in either height or width than one fourth the largest type upon any label on the package, and said compound or mixture must not contain any ingredients injurious to the health.

§16-7-3. Inspection and analysis of foods and drugs; certificate of result as prima facie evidence in prosecution.

Whenever the state health officer, the West Virginia Board of Pharmacy, or any county or municipal health officer has reason to believe that any food or drug manufactured for sale, offered for sale, or sold within this state, is adulterated, the state health officer or Board of Pharmacy, by its authorized agents, or such county or municipal health officer shall have the power, and it shall be his or her duty, to enter, during the usual hours of business, into any creamery, factory, store, salesroom, drugstore, laboratory or other place where he or she has reason to believe such food or drug is manufactured, prepared, sold or offered for sale, within the county or municipality, as the same may be, and to open any case, tub, jar, bottle or package containing, or supposed to contain, any such food or drug, and take a specimen thereof for examination and analysis. If less than a whole package is taken, the specimen shall be sealed and properly prepared for shipment to the person who shall make the analysis hereinafter provided for. No whole or less than a whole package taken and prepared for shipment shall be opened before it has been received by the analyst aforesaid.

It shall be the duty of a qualified chemist to test and analyze any such specimen, to record the result of his or her analysis among the records of the department, and to certify such findings to the state health officer, the West Virginia Board of Pharmacy, or to the county or municipal health officers, as the case may be. If the analysis indicates that the said food or drug is adulterated, a certificate of such result, sworn to by the person making the analysis, who shall also state in his or her certificate the reasonable cost and expense of such analysis, shall be prima facie evidence of such adulteration in any prosecution under this article.

§16-7-4. Penalty for adulterating food or drugs, or for manufacturing or selling adulterated food or drugs.

Whoever, by himself or his agents, knowingly adulterates or causes to be adulterated any article of food or drug, or knowingly manufactures for sale, offers for sale, or sells, within this state, any article of food or drug which is adulterated within the meaning of this article, without making the same known to the buyer, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding $500, or confined in jail not more than one year, or both, in the discretion of the court; and in addition to the penalties hereinbefore provided, he shall be adjudged to pay the cost and expense of analyzing such adulterated food or drug, as set forth in the certificate of the person making the analysis, not exceeding $25 in any one case, which shall be included in the costs of such prosecution and taxed in favor of the state department of health or the West Virginia Board of Pharmacy, as the case may be; and if he be a registered pharmacist or assistant pharmacist, his name shall be stricken from the register. The adulterated article shall be forfeited and destroyed.

§16-7-5. Regulations by state Bureau for Public Health as to milk and milk products.

The West Virginia Bureau for Public Health shall adopt regulations to provide clean and safe milk and fresh milk products and, when promulgated, these regulations shall be the minimum requirements to be enforced by local health authorities throughout the state: Provided, That except in any case where the milk or milk product involved creates, or appears to create, an imminent hazard to the public health, or in any case of a willful refusal to permit an authorized inspection, that any regulations promulgated by the Bureau for Public Health shall provide that prior to any suspension or revocation of a permit issued to any dairy farm, milk plant, receiving station, transfer station, and distribution station, the holder of such permit shall be served with a written notice to suspend or revoke such permit, which notice shall specify with particularity the violations in question and afford the holder reasonable opportunity to correct such violations: Provided, however, That the proposed order to deny, suspend, or revoke a permit may not be effective until notice in writing has been delivered to the holder of such permit who shall have 48 hours therefrom in which to make application to the county health officer for a hearing thereon. The county health officer shall, within 72 hours of receipt of such application, give a notice in writing to the holder of such permit setting forth the time and place of the hearing and proceed to a hearing to ascertain the facts of such violation and upon evidence presented at the hearing shall affirm, modify, or rescind the proposed order to suspend. A copy of the regulations shall be furnished to the Commissioner of Agriculture for his or her guidance in performing any duties with relation to milk and milk products imposed on him or her by law.

Effective July 1, 2019, the Bureau for Public Health may no longer adopt or enforce regulations to provide clean and safe milk and fresh milk products. Effective July 1, 2019, all authority to regulate milk and milk products shall be transferred to the Department of Agriculture.

§16-7-6. Killing young calves for purpose of sale.

Whoever, by himself or his agents, kills, for the purpose of sale, any calf less than four weeks old, or sells, or has in his possession with the intent to sell, the meat of any calf which he knows to have been killed when less than four weeks old, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five nor more than $15, or imprisoned not more than sixty days, or both.

§16-7-7. Selling, etc., of meat or shellfish containing preservatives; penalties.

If any person shall sell, ship, consign, offer for sale, expose for sale, or have in possession with intent to sell, as fresh, any meat, poultry, game, or shellfish which contains any substance, article or ingredient possessing a preservative character or action, or which contains any coal- tar dye, or any other substance or ingredient possessing a coloring character or action, he shall be deemed guilty of a misdemeanor and, upon conviction thereof shall be fined not more than $100 and all costs, or shall be imprisoned in the county jail not less than sixty days nor more than ninety days, or both, at the discretion of the court. Upon a second conviction he shall be fined not less than $200 nor more than $400, or be imprisoned not less than sixty days nor more than four months, or both, at the discretion of the court: Provided, That nothing in this section shall be construed to prohibit the use of ice as a preservative, or the use of refrigeration.

§16-7-8. Resale of certain food, drug, and medical devices prohibited; definitions; source documentation required; confiscation of food, drugs or medical devices; penalty and exceptions; rules.

(a) The Legislature finds that food manufactured and packaged for sale for consumption by a child under the age of two and nonprescription drugs sold by transient vendors at places such as flea markets and swap meets, where the sources of the food and nonprescription drugs are unknown, may be adulterated and thus constitute a hazard to the public's health and welfare. It further finds that these foods, nonprescription drugs or medical devices are likely to have been stolen. The Legislature determines that it is the policy of this state to prohibit the sale of these foods, nonprescription drugs and medical devices if the transient vendor cannot provide and document the sources of the merchandise.

(b) For the purposes of this section:

(1) The term "babyfood" or "food" means any food manufactured and packaged for sale for consumption by a child under the age of two;

(2) The term "nonprescription drugs" does not include natural or herbal nonprescription drugs;

(3) The term "medical device" means any apparatus or tool which is defined by federal law as a medical device and which has been specified by the Secretary of the Department of Health through legislative rules as a device which may be marketed or sold by transient vendors.

(c) Any transient vendor who sells babyfood, nonprescription drugs or medical devices at any flea market or swap meet in this state shall keep and make available records of the sources of such babyfood, nonprescription drugs or medical devices offered for sale or sold. The records may be receipts or invoices from the persons who sold the babyfood, nonprescription drugs or medical devices to the transient vendor or any other documentation that establishes the sources of the babyfood, nonprescription drugs or medical devices. The transient vendor shall keep those records with the babyfood, nonprescription drugs or medical devices being offered for sale so long as such goods are in his or her possession and shall maintain those records for a period of two years after the babyfood, nonprescription drugs or medical devices are sold.

(d) Upon the request of a law-enforcement agent or a representative of the state department of health, a transient vendor shall produce records of the sources of babyfood, nonprescription drugs or medical devices offered for sale or sold. If the transient vendor fails to immediately produce the requested records for goods offered for sale, the law-enforcement agent or representative for the state department of health may confiscate the babyfood, nonprescription drugs or medical devices then in possession of the vendor. If the transient vendor fails to produce the requested records for goods previously sold within a reasonable time, the law-enforcement agent or representative for the state department of health may confiscate any babyfood, nonprescription drugs or medical devices then in the possession of the vendor.

(e) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $200 for each babyfood item, nonprescription drug or medical device offered for sale or sold.

(f) The provisions of this section do not apply to a merchant who is licensed by the state Department of Tax and Revenue; who sells food or nonprescription drugs or medical devices by sample, catalog or brochure for future delivery; or who sells at a residential premises pursuant to an invitation issued by the owner or legal occupant of the premises.

(g) The secretary of the Department of Health shall promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code regarding the designation and authorized sale of medical devices sold by transient vendors pursuant to this subdivision.

§16-7-9. Enforcement; disposition of penalties.

The State department of health shall be charged with the enforcement of all the provisions of this act and all penalties which may be recovered shall be paid to the treasurer of the State of West Virginia general fund.

§16-7-10. Adulterated articles to be forfeited and destroyed.

All articles adulterated in violation of the provisions of this act shall be forfeited by the owner and destroyed by the state department of health.

§16-7-11. Effect of repeal on pending actions.

The repeal of inconsistent acts shall in no way interfere with or prevent the prosecution to final termination of any action or prosecution now pending, or which may hereafter be commenced for any violation of said act which has already been committed.

§16-8-1. Definitions.

(a) "Electrology" means the art and practice relating to the removing of hair from the normal skin of the body by the application of an electric current to the hair papilla by means of a needle or needles, or by the application of an electronic tweezer having the electrical current flow through the hair and the follicle as in conventional electrolysis.

(b) "Electrolysis" means the process by which hair is removed from the normal skin by the application of an electric current to the hair root by means of a needle, needles or electronic tweezer, whether the process employs direct electric current to the hair root or by means of shortwave alternating electric current.

§16-8-2. Regulations by state board of health; and minimum requirements.

The Commissioner of the Bureau of Public Health shall adopt rules and regulations, as in their judgment are necessary, to provide for the safe practice of electrology or electrolysis in this state, and when promulgated, these rules and regulations shall be the minimum requirements to be enforced by local health authorities throughout the state. All rules and regulations shall be promulgated in the manner provided by the provisions of article three, chapter twenty-nine-a of this code.

§16-8A-1.

Repealed.

Acts, 1971 Reg. Sess., Ch. 54.

§16-8B-2.

Repealed.

Acts, 1971 Reg. Sess., Ch. 54.

§16-9-1.

Repealed.

Acts, 1996 Reg. Sess., Ch. 89.

§16-9-2. Throwing or releasing dead animals or offensive substances into waters used for domestic purposes; penalties; jurisdiction; failure to bury or destroy offensive substances after conviction; successive offenses.

Any person who knowingly and willfully throws, causes to be thrown or releases any dead animal, carcass, or part thereof, garbage, sink or shower waste, organic substance, human or animal excrement, contents of privy vault, septic tank, cesspool or the effluent from any cesspool or nauseous or offensive or poisonous substances into any well, cistern, spring, brook, pond, stream or other body of water which is used for domestic purposes, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $25 nor more than $200. None of the provisions contained in this section shall apply to those commercial or industrial wastes which are subject to the regulatory control of the West Virginia Division of Environmental Protection.

Upon conviction of any such offense, the person convicted shall, within twenty-four hours after such conviction, remove and bury or cause to be buried at least three feet under the ground or destroy or cause to be destroyed as otherwise directed by the commissioner of the bureau of public health or his or her duly authorized representative any of such offensive materials which the person so convicted has thrown, caused to be thrown, released or knowingly permitted to remain in water used for domestic purposes, contrary to the provisions of this section, and his or her failure or refusal to do so is a misdemeanor and, a second violation of the provisions of this section. The continued failure or refusal of such convicted person to so bury or destroy such offensive materials is a separate, distinct and additional offense for each successive twenty-four hour period of such failure or refusal. Any person convicted of any offense described in this paragraph shall be fined not less than $25 nor more than $200, or imprisoned in the county jail not more than ninety days, or both fined and imprisoned.

§16-9-3. Depositing dead animals or offensive substances in or near waters or on or near roads or on public or private grounds; penalties; failure to bury or destroy offensive substances after conviction; successive offenses.

Any person (1) who throws, causes to be thrown or releases any dead animal, carcass, or part thereof, garbage, sink or shower waste, organic substances, contents of a privy vault, septic tank, cesspool or the effluent from any cesspool, spoiled meat or nauseous or offensive or poisonous substances into any river, creek or other stream, or upon the surface of any land adjacent to any river, creek or other stream in such a location that high water or normal drainage conditions will cause such offensive materials to be washed, drained or cast into the river, creek or other stream; or (2) who throws, or causes to be thrown or releases any of such offensive materials upon the surface of any road, right-of-way, street, alley, city or town lot, public ground, market space, common or private land, or (3) who, being the owner, lessee or occupant of any city or town lot, public ground, market space, common or private land knowingly permits any such offensive materials to remain thereon or neglects or refuses to remove or abate the public health menace or nuisance occasioned thereby, within twenty-four hours of the service of notice thereof in writing from the commissioner of the bureau of public health or his or her duly authorized representative, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000. None of the provisions contained in this section apply to those commercial or industrial wastes which are subject to the regulatory control of the West Virginia Division of Environmental Protection.

Upon a conviction for any such offense, the person shall, within twenty-four hours after such conviction, remove and bury or cause to be buried at least three feet under the ground, or destroy or cause to be destroyed as otherwise directed by the commissioner of the bureau of public health or his or her duly authorized representative, any of such offensive materials which the person so convicted has placed or knowingly permitted to remain upon such city or town lot, public ground, market space, common or private land, contrary to the provisions of this section. Such person's failure or refusal to do so is a misdemeanor and, a second offense against the provisions of this section. The continued failure or refusal of such convicted person to remove and bury or destroy such offensive materials is a separate, distinct and additional offense for each successive twenty-four-hour period of such failure and refusal. Any person convicted of any offense described in this paragraph shall be fined not less than $100 nor more than $1,000, or imprisoned in the county jail not more than ninety days, or both fined and imprisoned.

§16-9-4.

Repealed.

Acts, 1987 Reg. Sess., Ch. 119

§16-9-5.

Repealed.

Acts, 1987 Reg. Sess., Ch. 119

§16-9-6.

Repealed.

Acts, 1987 Reg. Sess., Ch. 119.

§16-9-7.

Repealed.

Acts, 1987 Reg. Sess., Ch. 119

§16-9-8. Jurisdiction of courts.

Until January 1, 1977, justices of the peace and municipal judges shall have concurrent jurisdiction with the circuit courts of this state for violations under sections one to seven, both inclusive, of this article.

§16-9A-1. Legislative intent.

The Legislature hereby declares it to be the policy and intent of this state to discourage and ban the use of tobacco products by minors. As basis for this policy, the Legislature hereby finds and accepts the medical evidence that smoking tobacco may cause lung cancer, heart disease, emphysema and other serious health problems while the use of smokeless tobacco may cause gum disease and oral cancer. It is the further intent of the Legislature in banning the use of tobacco products by minors to ease the personal tragedy and eradicate the severe economic loss associated with the use of tobacco and to provide the state with a citizenry free from the use of tobacco.

§16-9A-2. Definitions; sale or gift of cigarette, cigarette paper, pipe, cigar, snuff, chewing tobacco, pipe tobacco, roll-your-own tobacco, tobacco products, tobacco-derived and alternative nicotine product or vapor products to persons under eighteen; penalties for first and subsequent offense; consideration of prohibited act as grounds for dismissal; impact on eligibility for unemployment benefits.

(a) For purposes of this article, the term:

(1) "Tobacco product" and "tobacco-derived product" means any product, containing, made or derived from tobacco, or containing nicotine derived from tobacco, that is intended for human consumption, whether smoked, breathed, chewed, absorbed, dissolved, inhaled, vaporized, snorted, sniffed or ingested by any other means, including but not limited to cigarettes, cigars, cigarillos, little cigars, pipe tobacco, snuff, snus, chewing tobacco or other common tobacco-containing products. A "tobacco-derived product" includes electronic cigarettes or similar devices, alternative nicotine products and vapor products. "Tobacco product" or "tobacco-derived product" does not include any product that is regulated by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

(2) "Alternative nicotine product" means any non-combustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved or ingested by any other means. "Alternative nicotine product" does not include any tobacco product, vapor product or product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

(3) "Vapor product" means any non-combustible product containing nicotine that employs a heating element, power source, electronic circuit or other electronic, chemical or mechanical means, regardless of shape and size, that can be used to produce vapor from nicotine in a solution or other form. "Vapor product" includes any electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device, and any vapor cartridge or other container of nicotine in a solution or other form that is intended to be used with or in an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe or similar product or device. "Vapor product" does not include any product that is regulated by the United States Food and Drug Administration under Chapter V of the Food, Drug and Cosmetic Act.

(b) No person, firm, corporation or business entity may sell, give or furnish, or cause to be sold, given or furnished, to any person under the age of eighteen years:

(1) Any pipe, cigarette paper or any other paper prepared, manufactured or made for the purpose of smoking any tobacco or tobacco product;

(2) Any cigar, cigarette, snuff, chewing tobacco or tobacco product, in any form; or

(3) Any tobacco-derived product, alternative nicotine product or vapor product.

(c) Any firm or corporation that violates any of the provisions of subsection (b) of this section and any individual who violates any of the provisions of subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $50 for the first offense. Upon any subsequent violation at the same location or operating unit, the firm, corporation or individual shall be fined as follows: At least $250 but not more than $500 for the second offense, if it occurs within two years of the first conviction; at least $500 but not more than $750 for the third offense, if it occurs within two years of the first conviction; and at least $1,000 but not more than $5,000 for any subsequent offenses, if the subsequent offense occurs within five years of the first conviction.

(d) Any individual who knowingly and intentionally sells, gives or furnishes or causes to be sold, given or furnished to any person under the age of eighteen years any cigar, cigarette, snuff, chewing tobacco, tobacco product or tobacco-derived product, in any form, is guilty of a misdemeanor and, upon conviction thereof, for the first offense shall be fined not more than $100; upon conviction thereof for a second or subsequent offense, is guilty of a misdemeanor and shall be fined not less than $100 nor more than $500.

(e) Any employer who discovers that his or her employee has sold or furnished tobacco products or tobacco-derived products to minors may dismiss such employee for cause. Any such discharge shall be considered as "gross misconduct" for the purposes of determining the discharged employee's eligibility for unemployment benefits in accordance with the provisions of section three, article six, chapter twenty-one-a of this code, if the employer has provided the employee with prior written notice in the workplace that such act or acts may result in their termination from employment.

§16-9A-3. Use or possession of tobacco or tobacco products, alternative nicotine products or vapor products by persons under the age of 18 years; penalties.

A person under the age of 18 years shall not have on or about his or her person or premises or use any cigarette, or cigarette paper, or any other paper prepared, manufactured or made for the purpose of smoking any tobacco products, in any form; any pipe, snuff, chewing tobacco, tobacco product, or tobacco-derived product: Provided, That minors participating in the inspection of locations where tobacco products or tobacco-derived products are sold or distributed pursuant to §16-9A-7 of this code is not considered to violate the provisions of this section. Any person violating the provisions of this section shall for the first violation be fined $50 and be required to serve eight hours of community service; for a second violation, the person shall be fined $100 and be required to serve 16 hours of community service; and for a third and each subsequent violation, the person shall be fined $200 and be required to serve 24 hours of community service. Notwithstanding the provisions of §49-4-701 of this code, the magistrate court has concurrent jurisdiction.

§16-9A-4. Use of tobacco, tobacco products, alternative nicotine products or vapor products in certain areas of certain public schools prohibited; penalty.

Every person who shall smoke a cigarette or cigarettes, pipe, cigar or other implement, of any type or nature, designed, used or employed for smoking any tobacco or tobacco product; or who shall use any tobacco product or tobacco-derived product in any building or part thereof used for instructional purposes, in any school of this state, as defined in section one, article one, chapter eighteen of this code, or on any lot or grounds actually used for instructional purposes of any such school of this state while such school is used or occupied for school purposes, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished for each offense by a fine of not less than one nor more than five dollars: Provided, That this prohibition shall not be construed to prevent the use of any tobacco or tobacco product or tobacco-derived product, in any faculty lounge or staff lounge or faculty office or other area of said public school not used for instructional porposes: Provided, however, That students do not have access thereto: Provided further, That nothing herein contained shall be construed to prevent any county board of education from promulgating rules and regulations that further restrict the use of tobacco products or tobacco-derived products, in any form, from any other part or section of any public school building under its jurisdiction.

§16-9A-5. Outdoor billboard advertisements for smokeless tobacco products, nuisance affecting public health.

(a) Any outdoor billboard advertisement for snuff and chewing tobacco products must conspicuously display one of the following statements:

"WARNING: THIS PRODUCT MAY CAUSE MOUTH CANCER"

"WARNING: THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS"

"WARNING: THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO

 CIGARETTES"

The warnings shall be rotated every four months by the manufacturer, packager or importer of snuff and chewing tobacco products in an alternating sequence in the advertisement for each brand of such tobacco product. Such warning shall appear in the format and type style prescribed under 15 U.S.C. 1333 (b) (3), as amended.

No other warning, format, or type style in any outdoor billboard advertisement shall be required by any state or local statute or regulation.

(b) Any outdoor billboard advertisement that does not conform to the provisions of this section shall be deemed a nuisance affecting the public health.

§16-9A-6.

Repealed.

Acts, 1993 1st Ex. Sess., Ch. 9.

§16-9A-7. Enforcement of youth smoking laws and youth nicotine restrictions; inspection of retail outlets where tobacco, tobacco products, vapor products or alternative nicotine products are sold; use of minors in inspections; annual reports; penalties; defenses.

(a) The Commissioner of the West Virginia Alcohol Beverage Control Administration, the Superintendent of the West Virginia State Police, the sheriffs of the counties of this state and the chiefs of police of municipalities of this state, may periodically conduct unannounced inspections at locations where tobacco products or tobacco-derived products, are sold or distributed to ensure compliance with the provisions of sections two and three of this article and in such manner as to conform with applicable federal and state laws, rules and regulations. Persons under the age of eighteen years may be enlisted by such commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof to test compliance with these sections: Provided, That the minors may be used to test compliance only if the testing is conducted under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and written consent of the parent or guardian of such person is first obtained and such minors shall not be in violation of section three of this article and chapter when acting under the direct supervision of the commissioner, superintendent, sheriffs or chiefs of police or employees or agents thereof and with the written consent of the parent or guardian. It is unlawful for any person to use persons under the age of eighteen years to test compliance in any manner not set forth herein and the person so using a minor is guilty of a misdemeanor and, upon conviction thereof, shall be fined the same amounts as set forth in section two of this article.

(b) A person charged with a violation of section two or three of this article as the result of an inspection under subsection (a) of this section has a complete defense if, at the time the cigarette, other tobacco product or tobacco-derived product, or cigarette wrapper, was sold, delivered, bartered, furnished or given:

(1) The buyer or recipient falsely evidenced that he or she was eighteen years of age or older;

(2) The appearance of the buyer or recipient was such that a prudent person would believe the buyer or recipient to be eighteen years of age or older; and

(3) Such person carefully checked a driver's license or an identification card issued by this state or another state of the United States, a passport or a United States armed services identification card presented by the buyer or recipient and acted in good faith and in reliance upon the representation and appearance of the buyer or recipient in the belief that the buyer or recipient was eighteen years of age or older.

(c) Any fine collected after a conviction of violating section two of this article shall be paid to the clerk of the court in which the conviction was obtained: Provided, That the clerk of the court upon receiving the fine shall promptly notify the Commissioner of the West Virginia Alcohol Beverage Control Administration of the conviction and the collection of the fine: Provided, however, That any community service penalty imposed after a conviction of violating section three of this article shall be recorded by the clerk of the court in which the conviction was obtained: Provided further, That the clerk of the court upon being advised that community service obligations have been fulfilled shall promptly notify the Commissioner of the West Virginia Alcohol Beverage Control Administration of the conviction and the satisfaction of imposed community service penalty.

(d) The Commissioner of the West Virginia Alcohol Beverage Control Administration or his or her designee shall prepare and submit to the Governor on the last day of September of each year a report of the enforcement and compliance activities undertaken pursuant to this section and the results of the same, with a copy to the Secretary of the Department of Health. The report shall be in the form and substance that the Governor shall submit to the applicable state and federal programs.

§16-9A-8. Selling of tobacco products, tobacco-derived products, alternative nicotine products or vapor products in vending machines prohibited except in certain places.

No person or business entity may offer for sale any cigarette, tobacco product or tobacco-derived product, in a vending machine. Any person or business entity which violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $250: Provided, That an establishment is exempt from this prohibition if individuals under the age of eighteen years are not permitted to be in the establishment or if the establishment is licensed by the alcohol beverage control commissioner as a Class A licensee. The alcohol beverage control commissioner shall promulgate rules pursuant to article three, chapter twenty-nine-a of this code to establish standards for the location and control of the vending machines in Class A licensed establishments for the purpose of restricting access by minors.

§16-9A-9. Selling of bidis prohibited; penalties.

(a) The Legislature finds that young people in this state have been enticed into smoking or using tobacco products by first using or experimenting with hand-rolled, flavored tobacco products called "bidis" or "beedies." Recognizing that the use of bidis is an emerging public health problem, the Legislature hereby adopts a public policy that the tobacco products known as "bidis" should not be imported, sold or distributed in the State of West Virginia.

(b) Notwithstanding any other provision of law, no person or business entity shall possess, import, sell, offer for sale or distribute any tobacco product commonly referred to as "bidis" or "beedies."

(c) For purposes of this section, "bidis" or "beedies" means a product containing tobacco that is wrapped in temburni leaf or leaves (diospyros melanoxylon) or tendu leaf or leaves (diospyros exculpra), or any other product or substance that is offered to or purchased by consumers as bidis or beedies. As used in this section, the terms "bidis" and "beedies" have the same meaning and may be used interchangeably.

(d) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500; and upon a second or subsequent conviction thereof, shall be fined not less than $1,000 nor more than $5,000 for each offense, or confined in a county or regional jail not more than six months, or both.

§16-9A-10. The sale of cigarettes in a container other than its original factory-wrapped packaging prohibited; sale of individual cigarettes prohibited; and warnings required.

(a) A person or business entity may not sell or offer for sale cigarettes in any form other than an original factory-wrapped package.

(b) No person or business entity may sell or offer for sale cigarettes in a package that contains fewer than twenty cigarettes.

(c) No person or business entity may sell or offer for sale single cigarettes.

(d) A person or business entity may not sell or offer for sale cigarettes in any form that does not display the warnings with the display characteristics required by the provisions of 15 U.S.C. §1333(b)(3), as amended.

(e) Any person or business entity who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $250.

§16-9B-1. Findings and purpose.

(a) Cigarette smoking presents serious public health concerns to the state and to the citizens of the state. The surgeon general has determined that smoking causes lung cancer, heart disease and other serious diseases, and that there are hundreds of thousands of tobaccorelated deaths in the United States each year. These diseases most often do not appear until many years after the person in question begins smoking.

(b) Cigarette smoking also presents serious financial concerns for the state. Under certain health-care programs, the state may have a legal obligation to provide medical assistance to eligible persons for health conditions associated with cigarette smoking, and those persons may have a legal entitlement to receive such medical assistance.

(c) Under these programs, the state pays millions of dollars each year to provide medical assistance for these persons for health conditions associated with cigarette smoking.

(d) It is the policy of the state that financial burdens imposed on the state by cigarette smoking be borne by tobacco product manufacturers rather than by the state to the extent that such manufacturers either determine to enter into a settlement with the state or are found culpable by the courts.

(e) On November 23, 1998, leading United States tobacco product manufacturers entered into a settlement agreement, entitled the "master settlement agreement", with the state. The master settlement agreement obligates these manufacturers, in return for a release of past, present and certain future claims against them as described therein, to pay substantial sums to the state (tied in part to their volume of sales); to fund a national foundation devoted to the interests of public health; and to make substantial changes in their advertising and marketing practices and corporate culture, with the intention of reducing underage smoking.

(f) It would be contrary to the policy of the state if tobacco product manufacturers who determine not to enter into such a settlement could use a resulting cost advantage to derive large, short-term profits in the years before liability may arise without ensuring that the state will have an eventual source of recovery from them if they are proven to have acted culpably. It is thus in the interest of the state to require that such manufacturers establish a reserve fund to guarantee a source of compensation and to prevent such manufacturers from deriving large, short-term profits and then becoming judgment-proof before liability may arise.

§16-9B-2. Definitions.

(a) "Adjusted for inflation" means increased in accordance with the formula for inflation adjustment set forth in Exhibit C to the master settlement agreement.

(b) "Affiliate" means a person who directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with, another person. Solely for purposes of this definition, the terms "owns," "is owned" and "ownership" mean ownership of an equity interest, or the equivalent thereof, of ten percent or more, and the term "person" means an individual, partnership, committee, association, corporation or any other organization or group of persons.

(c) "Allocable share" means allocable share as that term is defined in the master settlement agreement.

(d) "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains: (1) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (2) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (3) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette as that term is described in this subsection. The term "cigarette" includes "roll-your-own", which means any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. For purposes of this definition of cigarette, 0.09 ounces of "roll-your-own" tobacco shall constitute one individual cigarette.

(e) "Master settlement agreement" means the settlement agreement (and related documents) entered into on November 23, 1998, by the state and leading United States tobacco product manufacturers.

(f) "Qualified escrow fund" means an escrow arrangement with a federally- or state- chartered financial institution having no affiliation with any tobacco product manufacturer and having assets of at least $1,000,000,000 where such arrangement requires that such financial institution hold the escrowed funds' principal for the benefit of releasing parties and prohibits the tobacco product manufacturer placing the funds into escrow from using, accessing or directing the use of the funds' principal except as consistent with subdivision (2), subsection (b), section three of this article.

(g) "Released claims" means released claims as that term is defined in the master settlement agreement.

(h) "Releasing parties" means releasing parties as that term is defined in the master settlement agreement.

(i) "Tobacco product manufacturer" means an entity that after the date of enactment of this article directly (and not exclusively through any affiliate):

(1) Manufactures cigarettes anywhere that such manufacturer intends to be sold in the United States, including cigarettes intended to be sold in the United States through an importer (except where such importer is an original participating manufacturer, as that term is defined in the master settlement agreement, that will be responsible for the payments under the master settlement agreement with respect to such cigarettes as a result of the provisions of subsections II(mm) of the master settlement agreement and that pays the taxes specified in subsection II(z) of the master settlement agreement, and provided that the manufacturer of such cigarettes does not market or advertise such cigarettes in the United States);

(2) Is the first purchaser anywhere for resale in the United States of cigarettes manufactured anywhere that the manufacturer does not intend to be sold in the United States; or

(3) Becomes a successor of an entity described in subdivision (1) or (2) of this subsection.

The term "tobacco product manufacturer" shall not include an affiliate of a tobacco product manufacturer unless such affiliate itself falls within subdivision (1), (2) or (3).

(j) "Units sold" means the number of individual cigarettes sold in the state by the applicable tobacco product manufacturer (whether directly or through a distributor, retailer or similar intermediary or intermediaries) during the year in question, as measured by excise taxes collected by the state on packs or "roll-your-own" tobacco containers bearing the excise tax stamp of the state. The Tax Commissioner shall propose legislative rules for promulgation, in accordance with article three, chapter twenty-nine of this code, as are necessary to ascertain the amount of state excise tax paid on the cigarettes of such tobacco product manufacturer for each year.

§16-9B-3. Requirements.

Any tobacco product manufacturer selling cigarettes to consumers within the state (whether directly or through a distributor, retailer or similar intermediary or intermediaries) after the date of enactment of this article shall do one of the following:

(a) Become a participating manufacturer (as that term is defined in section II(jj) of the master settlement agreement) and generally perform its financial obligations under the master settlement agreement; or

(b) (1) Place into a qualified escrow fund by April 15 of the year following the year in question the following amounts, adjusted for inflation:

(A) For the year one thousand nine hundred ninety-nine: $.0094241 per unit sold after the date of enactment of this article;

(B) For the year two thousand: $.0104712 per unit sold;

(C) For each of the years two thousand one and two thousand two: $.0136125 per unit sold;

(D) For each of the years two thousand three through two thousand six: $.0167539 per unit sold; and

(E) For the year two thousand seven or each year thereafter: $.0188482 per unit sold.

(2) A tobacco product manufacturer that places funds into escrow pursuant to this subsection shall receive the interest or other appreciation on such funds as earned. Such funds themselves shall be released from escrow only under the following circumstances:

(A) To pay a judgment or settlement on any released claim brought against such tobacco product manufacturer by the state or any releasing party located or residing in the state. Funds shall be released from escrow under this paragraph: (i) In the order in which they were placed into escrow; and (ii) only to the extent and at the time necessary to make payments required under such judgment or settlement;

(B) To the extent that a tobacco product manufacturer establishes that the amount it was required to place into escrow on account of units sold in the state in a particular year was greater than the master tobacco settlement agreement payments, as determined pursuant to section IX(i) of that agreement, including after final determination of all adjustments, that such manufacturer would have been required to make on account of such units sold had it been a participating manufacturer, the excess shall be released from escrow and revert back to such tobacco product manufacturer; or

(C) To the extent not released from escrow under paragraph (A) or (B) of this subdivision, funds shall be released from escrow and revert back to the tobacco product manufacturer twenty-five years after the date on which they were placed into escrow.

(3) Each tobacco product manufacturer that elects to place funds into escrow pursuant to this subsection shall annually certify to the Attorney General that it is in compliance with this subsection. The Attorney General may bring a civil action on behalf of the state against any tobacco product manufacturer that fails to place into escrow the funds required under this section. Any tobacco product manufacturer that fails in any year to place into escrow the funds required under this section shall:

(A) Be required within fifteen days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a violation of this subsection, may impose a civil penalty, to be paid to the General Fund of the state, in an amount not to exceed five percent of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed one hundred percent of the original amount improperly withheld from escrow;

(B) In the case of a knowing violation, be required within fifteen days to place such funds into escrow as shall bring it into compliance with this section. The court, upon a finding of a knowing violation of this subsection, may impose a civil penalty, to be paid to the General Fund of the state, in an amount not to exceed fifteen percent of the amount improperly withheld from escrow per day of the violation and in a total amount not to exceed three hundred percent of the original amount improperly withheld from escrow; and

(C) In the case of a second knowing violation, be prohibited from selling cigarettes to consumers within the state (whether directly or through a distributor, retailer or similar intermediary) for a period not to exceed two years.

Each failure to make an annual deposit required under this section shall constitute a separate violation.

§16-9B-4. Special severability rule; implementation date.

(a) Section three severability rule. –-

(1) If the act amending section three of this article in the year two thousand three, or any portion of the amendment to paragraph (B), subdivision (2), subsection (b), section three of this article, made by that act, is held by a court of competent jurisdiction to be unconstitutional, then such paragraph (B) shall be deemed to be repealed in its entirety.

(2) If after application of subsection (a) of this section, a court of competent jurisdiction thereafter holds subdivision (2), subsection (b) of said section three to be unconstitutional, then section three as amended in the year two thousand three shall be deleted in its entirety and section three as enacted in the year one thousand nine hundred ninety-nine, shall be restored as if no amendments had been made to section three in the year two thousand three. Neither any holding of unconstitutionality nor the repeal of paragraph (B), subdivision (2), subsection (b), section three of this article shall affect, impair or invalidate any other portion of section three, or the application of section three to any other person or circumstance, and such remaining portions of section three shall at all times continue in full force and effect.

(b) Implementation date. -– The amendments to section three of this article in the year two thousand three shall not take effect until thirty days after the earlier of:

(1) All states that share a common border with this state enacting similar amendments to their laws implementing the master tobacco settlement agreement; or

(2) Thirty-three states, including this state, enacting similar amendments to their laws implementing the master tobacco settlement agreement.

§16-9C-1. Findings and purpose.

(a) Cigarette smoking presents serious public health concerns as well as serious financial concerns for the state. In response, the state pursued legal claims against leading tobacco product manufacturers to recover damages caused by the public health and financial consequences of cigarette smoking. On November 23, 1998, leading United States tobacco product manufacturers entered into a settlement agreement, entitled "master settlement agreement", with the state. The master settlement agreement obligates these manufacturers to pay substantial sums to the state in exchange for a release of past, present and future claims against them.

(b) The tobacco growers of the state are not a party or a beneficiary of the master settlement agreement.

(c) In view of the master settlement agreement, similar agreements between other states and tobacco product manufacturers, and the heightened public awareness and scrutiny of the dangers associated with cigarette smoking, the state has a significant interest in protecting tobacco growers from negative economic and financial consequences arising from changes in the cigarette industry, such as decreased consumption, demand and prices.

(d) On January 21, 1999, leading United States tobacco product manufacturers agreed to establish a national tobacco community trust, for the sole benefit of tobacco growers, payable over a twelve-year period, beginning in the year 1999. The tobacco growers in this state (and thirteen other states) are eligible to participate in the national tobacco community trust upon the creation of a state tobacco grower board, which will consummate a tobacco grower settlement with the tobacco product manufacturers.

§16-9C-2. Definitions.

(a) "Cigarette" means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains: (1) Any roll of tobacco wrapped in paper or in any substance not containing tobacco; or (2) tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (3) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette as that term is described in this subsection. The term "cigarette" includes "roll-your-own" which means any tobacco which, because of its appearance, type, packaging, or labeling is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. For purposes of this definition of cigarette, 0.09 ounces of "roll-your-own" tobacco shall constitute one individual cigarette.

(b) "Master settlement agreement" means the settlement agreement (and related documents) entered into on November 23, 1998, by the state and leading United States tobacco product manufacturers.

(c) "National tobacco community trust" means the trust fund agreed to by leading United States tobacco product manufacturers, to be established and funded by them for the sole benefit of state tobacco growers.

(d) "Tobacco grower" means a person who has a direct financial interest in planting, cultivating and harvesting tobacco for sale. Tobacco grower includes a person who possesses a quota to market tobacco as administered by the United States Department of Agriculture.

(e) "Trust" means the national tobacco community trust as defined in subsection (c) of this section.

§16-9C-3. Creation of board.

There is hereby created a board to be known as the "state tobacco growers' settlement board" consisting of three members: The Governor, the Attorney General and the commissioner of agriculture, or their designees. The Governor or his or her designee shall serve as the chair, the commissioner of agriculture or his or her designee shall serve as the vice chair, and the Attorney General or his or her designee shall serve as the secretary.

§16-9C-4. Duties and responsibilities of the state tobacco grower board.

The duties and responsibilities of the board shall include, but are not limited to:

(a) The consummation of a settlement with leading United States tobacco product manufacturers for the exclusive benefit of state tobacco growers;

(b) The execution of all necessary written agreements relative to the national tobacco community trust to ensure state tobacco growers' receipt of funds directly from the trust;

(c) Consultation with tobacco growers within the state in order to determine how funds allocated by the national tobacco community trust shall be distributed among state tobacco growers to compensate them for the adverse effects of decreased consumption, demand and price for cigarettes;

(d) The submission of a plan to the national tobacco community trust identifying state tobacco growers and the distribution of trust funds to state tobacco growers; and

(e) The certification of instructions annually to the national tobacco community trust regarding distribution of funds from the trust directly to the state tobacco growers during the twelve year payment period, beginning in the year one thousand nine hundred ninety-nine.

§16-9D-1. Findings and purpose.

The Legislature finds that violations of article nine-b of this chapter threaten the integrity of the tobacco master settlement agreement, the fiscal soundness of the state, and the public health. The Legislature finds that enacting procedural enhancements will help prevent violations and aid enforcement of article nine-b of this chapter and thereby safeguard the master settlement agreement, the fiscal soundness of the state, and the public health.

§16-9D-2. Definitions.

(a) "Brand Family" means all styles of cigarettes sold under the same trade mark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, "menthol," "lights," "kings," and "100s" and includes any brand name (alone or in conjunction with any other word), trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, a previously known brand of cigarettes.

(b) "Cigarette" has the same meaning as in section two, article nine-b of this chapter.

(c) "Commissioner" means the duly appointed head of the agency responsible for collection of the excise tax on cigarettes.

(d) "Distributor" means a person, wherever resident or located, who purchases nontax-paid cigarettes and stores, sells, or otherwise disposes of the cigarettes.

(e) "Master tobacco settlement agreement" has the same meaning as that term is defined in section two, article nine-b of this chapter.

(f) "Nonparticipating manufacturer" means any tobacco product manufacturer that is not a participating manufacturer.

(g) "Participating manufacturer" has the meaning given that term in section II(jj) of the master settlement agreement and all amendments to the master settlement.

(h) "Qualified escrow fund" has the same meaning as that term is defined in section two, article nine-b of this chapter.

(i) "Stamping agent" includes any distributor or other person that is authorized to affix tax stamps to packages or other containers of cigarettes under article seventeen, chapter eleven of this code, or any person that is required to pay the excise tax imposed on cigarettes pursuant to article seventeen of said chapter eleven.

(j) "Tobacco product manufacturer" has the same meaning as that term is defined in section two, article nine-b of this chapter.

(k) "Units sold" has the same meaning as that term is defined in section two, article nine-b of this chapter.

§16-9D-3. Certifications; directory; tax stamps.

(a) Certification. -– Every tobacco product manufacturer whose cigarettes are sold in this state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall execute and deliver in the manner prescribed by the commissioner a certification to the commissioner and the Attorney General, no later than April 30 each year, certifying under penalty of perjury that, as of the date of the certification, the tobacco product manufacturer either is a participating manufacturer or is in full compliance with article nine-b of this chapter, including payment of all quarterly installment payments required by section six of this article.

(1) A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update the list thirty calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the commissioner and the Attorney General.

(2) A nonparticipating manufacturer shall include in its certification:

(A) A list of all of its brand families and the number of units sold for each brand family that were sold in this state during the preceding calendar year;

(B) A list of all of its brand families that have been sold in this state at any time during the current calendar year, indicating, by an asterisk, any brand family sold in this state during the preceding calendar year that is no longer being sold in this state as of the date of the certification; and

(C) Identification, by name and address, of any other manufacturer of the brand families in the preceding calendar year.

The nonparticipating manufacturer shall update the list thirty calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the commissioner and the Attorney General.

(3) In the case of a nonparticipating manufacturer, the certification shall further certify:

(A) That the nonparticipating manufacturer is registered to do business in this state or has appointed a resident agent for service of process and provided notice thereof as required by section four of this article;

(B) That the nonparticipating manufacturer has: (i) Established and continues to maintain a qualified escrow fund; and (ii) has executed a qualified escrow agreement that has been reviewed and approved by the Attorney General and that governs the qualified escrow fund;

(C) That the nonparticipating manufacturer is in full compliance with article nine-b of this chapter and this article, and any rules promulgated pursuant to either article; and

(D) The name, address and telephone number of the financial institution where the nonparticipating manufacturer has established the qualified escrow fund required by article nine-b of this chapter and all rules promulgated thereto, and:

(i) The account number of the qualified escrow fund and sub-account number for the State of West Virginia;

(ii) The amount the nonparticipating manufacturer placed in escrow fund for cigarettes sold in this state during the preceding calendar year, the date and amount of each deposit, and any evidence or verification considered necessary by the Attorney General to confirm the information certified under this paragraph; and

(iii) The amount and date of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from the qualified escrow fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to article nine-b of this chapter and all rules promulgated thereto.

(4) A tobacco product manufacturer may not include a brand family in its certification unless:

(A) In the case of a participating manufacturer, the participating manufacturer affirms that the brand family is to be considered to be its cigarettes for purposes of calculating its payments under the master settlement agreement for the relevant year, in the volume and shares determined pursuant to the master settlement agreement; and

(B) In the case of a nonparticipating manufacturer, the nonparticipating manufacturer affirms that the brand family is to be considered to be its cigarettes for purposes of article nine-b of this chapter. Nothing in this section shall be construed as limiting or otherwise affecting this state's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the master settlement agreement or for purposes of article nine-b of this chapter.

(5) Tobacco product manufacturers shall maintain all invoices and documentation of sales and any other information relied upon for the certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time.

(b) Directory of cigarettes approved for stamping and sale. -– The commissioner shall develop and publish on the Tax Division's website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of subsection (a) of this section and all brand families that are listed in the certifications, except as provided in subdivisions (1) and (2) of this subsection.

(1) The commissioner shall not include or retain in the directory the name or brand families of any nonparticipating manufacturer that has failed to provide the required certification or whose certification the commissioner or the Attorney General determines is not in compliance with subdivisions (2) and (3), subsection (a) of this section, unless the commissioner has determined that the violation has been cured to the satisfaction of the commissioner and the Attorney General.

(2) Neither a tobacco product manufacturer nor brand family shall be included or retained in the directory if the Attorney General concludes in the case of a nonparticipating manufacturer, that:

(A) Any escrow payment required pursuant to article nine-b of this chapter for any period for any brand family, whether or not listed by the nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the Attorney General of this state, or

(B) Any outstanding final judgment, including interest on the judgment, for violations of article nine-b of this chapter has not been fully satisfied for the brand family and the nonparticipating manufacturer.

(3) The Tax Commissioner shall update the directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer or brand family.

(A) The commissioner may not remove any manufacturer or brand family from the directory unless the manufacturer and all distributors and other stamping agents registered under article twelve, chapter eleven of this code, have been given at least seven days' prior notice of the intended removal by electronic mail or first class mail the notices shall be e-mailed or posted to the addresses provided by the manufacturers, distributors or other stamping agents for this purpose.

(B) The commissioner shall transmit by email or other practicable means to each distributor or other stamping agent registered under article twelve, chapter eleven of this code, to affix West Virginia tax stamps to cigarettes notice of any addition to or removal from the directory of any tobacco product manufacturer or brand family.

(C) Failure of a manufacturer, distributor or other stamping agent to receive notice under paragraph (A) or (B),subdivision (3), subsection (b) of this section, or failure of the state to provide notice of any addition to or removal from the directory shall not relieve the distributor or other stamping agent of its obligations under this article.

(4) Every tobacco product manufacturer selling cigarettes in this state and every distributor or other stamping agent affixing West Virginia tax stamps to packages of cigarettes for sale in this state shall provide and update as necessary an electronic mail address to the commissioner for the purpose of receiving any notifications required by this article.

(c) Prohibition against stamping or sale of cigarettes not on the directory. -– It is unlawful for any person:

(1) To affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory; or

(2) To sell, offer, or possess for sale in this state, cigarettes of a tobacco product manufacturer or brand family not included in the directory, except as follows:

(A) This subsection shall not prohibit a distributor or other stamping agent from possessing unstamped containers of cigarettes held in inventory for delivery to, or for sale in, another state; and

(B) A person purchasing cigarettes for resale shall not be in violation of this subsection if, at the time the cigarettes were purchased, the manufacturer and brand families of the cigarettes are included in the directory maintained by the Tax Commissioner and the cigarettes are otherwise lawfully stamped and sold within thirty days after the date of the notice provided under paragraph (A), subdivision (3), subsection (b) of this section.

§16-9D-4. Certification of tobacco product manufacturer wanting to sell product in this state for the first time.

(a) A tobacco product manufacturer whose cigarettes have not previously been sold in this state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall, at least thirty calendar days before beginning to sell its cigarettes in this state, make the certification required by section three of this article. In addition to the information required by section three, the manufacturer shall include the following information in its certification:

(1) If the tobacco product manufacturer is a partnership, limited liability company, corporation, association or other business entity, the following where applicable:

(A) The names and addresses of every partner, member, officer, resident agent, director or person performing a function similar to a director;

(B) The names and addresses of any person owning of record a ten percent or greater equity interest in the tobacco product manufacturer; and

(C) A list of all names under which the tobacco manufacturer, or any partner, member, officer, resident agent, director, or person owning a ten percent or greater equity interest in the tobacco manufacturer, previously did business as a tobacco product manufacturer in the United States within the five-year period preceding the date of submission of the certification; and

(2) A statement of whether the tobacco product manufacturer, or any partner, member, officer, resident agent, director, or person owning a ten percent or greater equity interest in the tobacco manufacturer, or in any subsidiary, affiliate or persons controlled by or under common control with the tobacco manufacturer, has ever been an officer, partner, director or person owning a ten percent or greater equity interest in a tobacco product manufacturer that ever defaulted in fully funding the escrow account required by article nine-b of this chapter in the five-year period prior to the date of submission of the certification under this section and, if so, a brief explanation of the facts involved.

§16-9D-4a. Listing of nonparticipating manufacturers in the West Virginia Tobacco Directory; bonding requirement for nonparticipating manufacturers newly qualified or posing an elevated risk for noncompliance.

(a) Notwithstanding any other provision of law to the contrary, if a newly qualified nonparticipating manufacturer is to be listed in the directory described in subsection (b), section three of this article, or if the Attorney General reasonably determines that a nonparticipating manufacturer who has filed a certification pursuant to section three of this article poses an elevated risk for noncompliance with its obligations under this article or article nine-b of this chapter, neither the nonparticipating manufacturer nor any of its brand families may be included in the directory unless and until the nonparticipating manufacturer has posted a bond in accordance with this section.

(b) The bond shall be posted by corporate surety located within the United States in an amount equal to the greater of $25,000 or the amount of escrow the manufacturer, in either its current or predecessor form, was required to deposit as a result of its sales in the previous calendar year in West Virginia. The bond shall be written in favor of the State of West Virginia and shall be conditioned on the performance by the nonparticipating manufacturer of all of its duties and obligations under this article and article nine-b of this chapter during the year in which the certification is filed and the next succeeding calendar year. Duplicate originals of the bond shall be provided to the State Tax Division and the Attorney General.

(c) A nonparticipating manufacturer may be considered to pose an elevated risk for noncompliance with this section if:

(1) The nonparticipating manufacturer or any affiliate thereof has underpaid an escrow obligation with respect to any state that is a signatory to the Master Settlement Agreement at any time during the calendar year or within the three preceding calendar years unless:

(A) The manufacturer did not make underpayment knowingly or recklessly and the manufacturer promptly cured the underpayment within one hundred eighty days' notice of it; or

(B) The underpayment or lack of payment is the subject of a good-faith dispute as documented to the satisfaction of the Attorney General and the underpayment is cured within one hundred eighty days of entry of a final order establishing the amount of the required escrow payment;

(2) Any state that is a signatory to the Master Settlement Agreement has removed the manufacturer or its brands or brand families or an affiliate or any of the affiliate's brands or brand families from the directory for noncompliance with the state law at any time during the calendar year or within the three preceding calendar years; or

(3) Any state that is a signatory to the Master Settlement Agreement has litigation pending against, or an unsatisfied judgment against, the manufacturer or any affiliate thereof for escrow or for penalties, costs, or attorney fees related to noncompliance with state escrow laws.

(d) As used in this section, "newly qualified nonparticipating manufacturer" means a nonparticipating manufacturer that has not previously been listed in the directory in the three preceding calendar years. The manufacturer may be required to post a bond in accordance with this section for the first three years of their listing, or for such longer time as the Attorney General may require, if the manufacturer has been determined to pose an elevated risk for noncompliance. Any other nonparticipating manufacturer that has been determined to pose an elevated risk for noncompliance shall be required to post a bond in accordance with this section for three years, and shall be required to post a bond for such further period of time as the Attorney General may require, in accordance with this section, if the nonparticipating manufacturer still poses an elevated risk at the end of the three-year period.

(e) The posted bond shall be forfeited to the West Virginia General Revenue Fund in the event that the manufacturer fails to comply with its with its obligations under this article or article nine-b of this chapter. The amount of the forfeiture shall be equal to the delinquent escrow payments due at the time of forfeiture plus any penalties assessed against the manufacturer based on its failure to fulfill its responsibilities under this article and article nine-b of this chapter.

§16-9D-5. Agent for service of process.

(a) Requirement for agent for service of process. --

(1) Any nonresident or foreign nonparticipating manufacturer that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to having its brand families included or retained in the directory, appoint and continually engage without interruption the services of an agent in this state, or in the United States, to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this article and article nine-b of this chapter, may be served in any manner authorized by law. The service constitutes legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, phone number and proof of the appointment and availability of the agent to the satisfaction of the commissioner and the Attorney General.

(2) Any nonresident stamping agent authorized to affix stamps to packages of cigarettes evidencing payment of the tax levied by article seventeen, chapter eleven of this code, on cigarettes to be sold in this state that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to being authorized to affix West Virginia tax stamps, appoint and continually engage without interruption the services of an agent in this state, or in the United States, to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this article and article nine-b of this chapter, may be served in any manner authorized by law. The service constitutes legal and valid service of process on the nonresident stamping agent. The nonresident stamping agent shall provide the name, address, phone number and proof of the appointment and availability of the agent to the satisfaction of the commissioner and the Attorney General.

(b) The nonparticipating manufacturer or the nonresident stamping agent shall provide written notice to the commissioner and the Attorney General thirty calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the Attorney General of the appointment of a new agent no less than five calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the nonparticipating manufacturer, or nonresident stamping agent, as the case may be, shall notify the commissioner and Attorney General in writing of the termination within five calendar days and shall include proof to the satisfaction of the Attorney General of the appointment of a new agent.

(c) Any nonparticipating manufacturer and any nonresident stamping agent whose cigarettes are sold in this state, who has not appointed and engaged an agent as required by this section, shall be considered to have appointed the Secretary of State of West Virginia as the agent and may be proceeded against in the courts of this state by service of process upon the Secretary of State: Provided, That the appointment of the Secretary of State as the agent of the manufacturer or the nonresident stamping agent shall not satisfy the condition precedent for having the brand families of the nonparticipating manufacturer included or retained in the directory.

§16-9D-6. Reporting of information; escrow installments.

(a) Reporting by distributors and other stamping agents. –-

(1) Not later than twenty calendar days after the end of each calendar quarter, and more frequently if directed by the commissioner, each distributor or stamping agent shall submit information required by the commissioner to facilitate compliance with this article, including, but not limited to, a list by brand family of the total number of cigarettes of nonparticipating manufacturers, or in the case of roll your own, the equivalent stick count, for which the distributor or other stamping agent affixed West Virginia stamps and sold in West Virginia during the previous calendar quarter or otherwise paid the tax due for the cigarettes.

(2) The distributor or stamping agent shall maintain, and make available to the commissioner, all invoices and documentation of sales of all nonparticipating manufacturer cigarettes sold in West Virginia and any other information relied upon in reporting to the commissioner for a period of five years.

(b) Disclosure of information. -- The commissioner may disclose to the Attorney General of this state any information received under this article and requested by the Attorney General for purposes of determining compliance with and enforcing the provisions of this article. The commissioner and the Attorney General shall share with each other the information received under this article, and may share the information with other federal, state or local agencies only for purposes of enforcement of this article, article nine-b of this chapter, or corresponding laws of other states. The commissioner is further directed, upon request of a nonparticipating manufacturer, to disclose to that nonparticipating manufacturer any information that has been provided by a distributor or stamping agent as required by this section regarding the purchases from that manufacturer upon which tax stamps have been applied and cigarettes sold in West Virginia.(c) Verification of qualified escrow fund. -– The Attorney General may require at any time from the nonparticipating manufacturer proof, from the financial institution in which the manufacturer has established a qualified escrow fund for the purpose of compliance with article nine-b of this chapter, of the amount of money in the fund, exclusive of interest, the amount and date of each deposit to the qualified escrow fund, and the amount and date of each withdrawal from the fund.

(d) Requests for additional information. -– In addition to the information required to be submitted pursuant to this section, the Attorney General may require a stamping agent, distributor or tobacco product manufacturer to submit any additional information including, but not limited to, samples of the packaging or labeling of each brand family, that is necessary to enable the Attorney General to determine whether a tobacco product manufacturer is in compliance with this article.

(e) Quarterly escrow installments. -– To promote compliance with the provisions of this article, a tobacco product manufacturer subject to the requirements of subdivision (2), subsection (a), section three of this article, who, in the opinion of the Attorney General, materially defaults in fully funding its escrow account timely and then cures the default shall make escrow deposits for the calendar year during which the default was cured and ensuing calendar years in quarterly installments during the year in which the sales covered by such deposits are made. The Attorney General may require production of information sufficient to enable the Attorney General to determine the adequacy of the amount of the installment deposit.

§16-9D-7. Electronic filing of quarterly reports.

(a) Electronic filing required. -- After September 1, 2003, the quarterly reports required by section six of this article from distributors and stamping agents shall be electronically filed with the Tax Commissioner.

(b) "Filed electronically" defined. -- For purposes of this section, "filing electronically" means the filing of a report or other document by any electronic medium acceptable to the Tax Commissioner including, but not limited to, the filing of reports and other documents by electronic data interchange, or by use of the Internet for web-based filing or other technology specified by the Tax Commissioner by a procedural rule promulgated as provided in article three, chapter twenty-nine-a of this code.

(c) Signature requirements. -- The signature requirement for all reports required to be filed under this article will be met if the submission is made pursuant to the Tax Commissioner's procedural rule.

(d) Standards. -- The Tax Commissioner shall give due regard to developing uniform standards for formats as adopted by the American National Standards Institute for encryption and filer authentication to ensure that the report information is kept confidential.

§16-9D-8. Penalties and other remedies.

(a) Revocation of business registration certificate and civil money penalty. -– In addition to or in lieu of any other civil or criminal remedy provided by law, upon a determination that a distributor, stamping agent or any other person has violated subsection (c), section three of this article, or any rule adopted pursuant thereto, the commissioner may revoke or suspend the business registration certificate of the distributor, stamping agent or other person in the manner provided by article twelve, chapter eleven of this code. Each stamp affixed and each sale or offer to sell cigarettes in violation of subsection (c), section three of this article constitutes a separate violation. The commissioner may also impose a civil penalty in an amount not to exceed the greater of five hundred percent of the retail value of the cigarettes or $5,000 upon a determination of violation of subsection (c), section three of this article or any rules adopted pursuant thereto. The penalty shall be imposed and collected in the manner that tax is assessed and collected under article ten, chapter eleven of this code. The amount of penalty collected shall be deposited in the tobacco control special fund created in section nine of this article.

(b) Contraband and seizure. –– Any cigarettes that have been sold, offered for sale, or possessed for sale, in this state, in violation of subsection (c), section three of this article, shall be considered contraband under article seventeen, chapter eleven of this code and the cigarettes are subject to seizure and forfeiture as provided in article seventeen, and all cigarettes seized and forfeited shall be destroyed and not resold: Provided, That this subsection shall not prohibit a stamping agent or distributor from possessing unstamped containers of cigarettes held in inventory for delivery to, or for sale in, another state.

(c) Injunction. -– The Attorney General, on behalf of the commissioner, may seek an injunction to restrain a threatened or actual violation of subsection (c), section three of this article, subsection (a), section five of this article, or subsection (d) of said section five, by a distributor, stamping agent or other person and to compel the distributor, stamping agent or other person to comply with these subsections: Provided, That this subsection shall not prohibit a stamping agent or distributor from possessing unstamped containers of cigarettes held in inventory for delivery to, or for sale in, another state. In any action brought pursuant to this section, the state is entitled to recover the costs of investigation, costs of the action and reasonable attorney fees.

(d) Unlawful sale and distribution. -– It is unlawful for a person to:

(1) Sell or distribute cigarettes; or

(2) Acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in this state in violation of subsection (c), section three of this article. A violation of this subsection shall be a misdemeanor punishable as provided in section nineteen-a, article seventeen, chapter eleven of this code.

(e) Unfair trade practice. -– A person who violates subsection (c), section three of this article, engages in an unfair and deceptive trade practice in violation of article six, chapter forty-six-a of this code.

§16-9D-9. Miscellaneous provisions.

(a) Notice and review of determination. -– A determination of the commissioner or the Attorney General to not include or to remove from the directory a brand family or tobacco product manufacturer is subject to review in the manner prescribed by article ten-a, chapter eleven of this code, by filing a petition for review with the office of tax appeals within thirty days of receipt of the commissioner's written determination to not include or to remove the brand family or tobacco product manufacturer from the directory. A determination not to list in, or to remove from, the directory any brand family or tobacco product manufacturer shall not be stayed during the pendency of appeal procedure.

(b) Applicants for business registration certificate. -– No person shall be issued a business registration certificate under article twelve, chapter eleven of this code or granted a renewal of its business registration certificate to act as a distributor or stamping agent unless the person has certified in writing, under penalty of perjury, that the person will comply fully with this article.

(c) Promulgation of rules. -– The commissioner and the Attorney General may separately promulgate any procedural, interpretive and legislative rules in the manner provided in article three, chapter twenty-nine-a of this code, each considers necessary to effect the purposes of this article.

(d) Recovery of costs and fees by Attorney General. -– In any action brought by the state to enforce this article, the state is entitled to recover the costs of investigation, expert witness fees, costs of the action and reasonable attorney fees.

(e) Disgorgement of profits for violations of this article. -– If a court determines that a person has violated this article, the court shall order any profits, gain, gross receipts or other benefit from the violation to be disgorged and paid to the State Treasurer for deposit in the "tobacco control special fund", which is created in the State Treasury. Expenditures from the fund are to be made in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code. Unless otherwise expressly provided, the remedies or penalties provided by this article are cumulative to each other and to the remedies or penalties available under all other laws of this state.

(f) Construction and severability. --

(A) If a court of competent jurisdiction finds that the provisions of this article and of article nine-b of this chapter conflict and cannot be harmonized, then the provisions of article nine-b control.

(B) If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article causes article nine-b of this chapter to no longer constitute a qualifying or model statute, as those terms are defined in the master settlement agreement, then that portion of this article is not valid.

(C) If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article is for any reason held to be invalid, unlawful or unconstitutional, that decision shall not affect the validity of the remaining portions of this article or any part thereof.

§16-9D-10. Effective date; implementation.

(a) If this act of the Legislature takes effect ninety days from passage, the first certification by a tobacco product manufacturer described in subsection (a), section three of this article, shall be due July 1, 2003, covering the 2002 calendar year, and the additional information required by section three for the current calendar year up to the date of the certification; and the directory described in subsection (b), section three of this article, is published in the state register by August 15, 2003, and made available on the Tax Commissioner's web page by October 15, 2003.

(b) If this act of the Legislature is in effect from passage, the first certification by a tobacco product manufacturer described in subsection (a), section three of this article, is due May 1, 2003, covering the 2002 calendar year, and the additional information required by section three for the current calendar year up to the date of the certification; and the directory described in subsection (b), section three of this article, shall be published in the state register by June 15, 2003, and made available on the Tax Commissioner's web page by August 15, 2003.

(c) If this act of the Legislature takes effect July 1, 2003, the first certification by a tobacco product manufacturer described in subsection (a), section three of this article, is due July 1, 2003, covering the 2002 calendar year, and the additional information required by section three for the current calendar year up to the date of the certification; and the directory described in subsection (b), section three of this article, shall be published in the state register by August 15, 2003, and made available on the Tax Commissioner's web page by October 15, 2003.

§16-9E-1. Definitions.

For purposes of this article:

(a) "Adult" means a person who is at least the legal minimum purchase age, as defined by section two, article nine-a of this chapter.

(b) "Consumer" means an individual who does not hold a business registration certificate in this state for the business of selling tobacco products as a wholesale or retail dealer.

(c) "Delivery sale" means any sale of cigarettes to a consumer in this state where either: (1) The purchaser submits the order for such sale by means of a telephonic or other method of voice transmission, the mails or any other delivery service, or the Internet or other online service; or (2) the cigarettes are delivered by use of the mails or a delivery service. A sale of cigarettes shall be a delivery sale regardless of whether or not the seller is located within this state. A sale of cigarettes not for personal consumption to a person who holds a business registration certificate as a wholesale dealer or a retail dealer shall not be a delivery sale.

(d) "Delivery service" means any person who is engaged in the commercial delivery of letters, packages, or other containers.

(e) "Department" means the State Tax Department.

(f) "Legal minimum purchase age" is at least eighteen years of age as defined by section two, article nine-a of this chapter for the purchase of cigarettes in this state.

(g) "Mails" or "mailing" means the shipment of cigarettes through the United States postal service.

(h)"Shipping container" means a container in which cigarettes are shipped in connection with a delivery sale.

(i) "Shipping documents" means bills of lading, airbills, or any other documents used to evidence the undertaking by a delivery service to deliver letters, packages, or other containers.

§16-9E-2. Requirements for delivery sales.

(a) No person shall make a delivery sale of cigarettes to any individual who is under the legal minimum purchase age in this state.

(b) Each person accepting a purchase order for a delivery sale shall comply with:

(1) The age verification requirements set forth in section three of this article;

(2) The disclosure requirements set forth in subdivision (3), subsection (a), section three of this article;

(3) The shipping requirements set forth in section four of this article;

(4) The registration and reporting requirements set forth in section five of this article;

(5) The tax collection requirements set forth in section six of this article; and

(6) All other laws of this state generally applicable to sales of cigarettes that occur entirely within this state, including, but not limited to, those laws imposing: (i) Excise taxes; (ii) sales taxes; (iii) license and revenue-stamping requirements; and (iv) escrow or other payment obligations.

§16-9E-3. Age verification requirements.

(a) No person shall mail, ship, or otherwise deliver cigarettes in connection with a delivery sale unless prior to the first delivery sale to a consumer, the person:

(1) Obtains from the prospective consumer a certification that includes a reliable confirmation that the consumer is at least the legal minimum purchase age and a statement signed by the prospective consumer in writing that certifies the prospective consumer's address and that the consumer is at least eighteen years of age. The statement shall also confirm: (i) That the prospective consumer understands that it is illegal to sign another person's name to the certification; (ii) that the sale of cigarettes to individuals under the legal minimum purchase age is illegal; and (iii) that the purchase of cigarettes by individuals under the legal minimum purchase age is illegal under the laws of this state;

(2) Verifies the information contained in the certification provided by the prospective consumer against an appropriate database of government records available to the distributor or seller, or obtains simultaneous with the certificate as provided for in subdivision (1), a photocopy or other image of the valid, government-issued identification stating the date of birth or age of the individual placing the order;

(3) Sends to the prospective consumer, via e-mail or other means, a notice that contains: (A) A prominent and clearly legible statement that cigarette sales to a consumer below the legal minimum purchase age is illegal; (B) a prominent and clearly legible statement that consists of one of the warnings set forth in section 4(a)(1) of the federal Cigarette Labeling and Advertising Act, 15 U.S.C. §1333(a)(1), rotated on a quarterly basis; (C) a prominent and clearly legible statement that sales of cigarettes are restricted to those consumers who provide verifiable proof of age in accordance with section three of this article; and (D) a prominent and clearly legible statement that cigarette sales are subject to excise and sales taxes in this state, and an explanation of how such taxes have been, or are to be, paid with respect to the delivery sale.

(4) In the case of an order for cigarettes pursuant to an advertisement on the Internet, receives payment for the delivery sale from the prospective consumer by a credit or debit card or check that has been issued in the consumer's name.

(b) Persons accepting purchase orders for delivery sales may request that prospective consumers provide their e-mail addresses.

§16-9E-4. Shipping requirements.

(a) Each person who mails, ships, or otherwise delivers cigarettes in connection with a delivery sale:

(1) Shall include as part of the bill of lading or other shipping documents a clear and conspicuous statement providing as follows: "Cigarettes: West Virginia Law Prohibits Shipping to Individuals Under 18, and Requires the Payment of all Applicable Taxes";

(2) Shall use a method of mailing, shipping, or delivery that obligates the delivery service to require: (i) The consumer placing the purchase order for the delivery sale, or another adult of legal minimum purchase age, to sign to accept delivery of the shipping container; and (ii) proof, in the form of a valid, government-issued identification bearing a photograph of the individual who signs to accept delivery of the shipping container, demonstrating that he is either the addressee or another adult of legal minimum purchase age; and

(3) Shall provide to the delivery service retained for such delivery sale evidence of full compliance with section seven of this article.

(b) A delivery service shall be in violation of this article if it: (1) Ships or otherwise delivers cigarettes in connection with a delivery sale without first receiving evidence of compliance with section seven of this article; or (2) fails to comply with the requirements described in subsection (a) or described in section six of this article:

(1) When obligated to do so under a method of shipping or delivery;

(2) When delivering any container pursuant to shipping documents containing the statement described in subdivision (1), subsection (a) of this section; or

(3) When delivering any container that the delivery service otherwise has reason to know contains cigarettes.

(c) If the person accepting a purchase order for a delivery sale delivers the cigarettes without using a delivery service, that person shall comply with all requirements of this article applicable to a delivery service and shall be in violation of the provisions of this article upon failure to comply with the requirements.

§16-9E-5. Registration and reporting requirements.

(a) Prior to making delivery sales or mailing, shipping, or otherwise delivering cigarettes in connection with any such sales, every person shall file with the department a statement setting forth the seller's name, trade name, and the address of the seller's principal place of business and any other place of business.

(b) Not later than the tenth day of each calendar month, each person that has made a delivery sale or mailed, shipped, or otherwise delivered cigarettes in connection with any such sale during the previous calendar month shall file with the department a memorandum or a copy of the invoice that provides for each and every delivery sale:

(1) The name and address of the consumer to whom the delivery sale was made;

(2) The brand or brands of the cigarettes that were sold in the delivery sale; and

(3) The quantity of cigarettes that were sold in the delivery sale.

(c) Any person that satisfies the requirements of 15 U.S.C. §376 shall be deemed to satisfy the requirements of this section.

§16-9E-6. Collection of taxes.

Each person accepting a purchase order for a delivery sale shall collect and remit to the department all cigarette taxes imposed by this state with respect to such delivery sale, except that the collection and remission shall not be required to the extent the person has obtained proof, in the form of the presence of applicable tax stamps or otherwise, that the taxes already have been paid to this state.

§16-9E-7. Penalties.

(a) Except as otherwise provided in this section, a first violation of any provision of this article shall be a misdemeanor and, punishable by a fine of $500 or five times the retail value of the cigarettes involved, whichever is greater.

(b) Any person who knowingly violates any provision of this article, or who knowingly and falsely submits a certification under section three of this article in another person's name, shall be guilty of a misdemeanor, be fined $1,000 or ten times the retail value of the cigarettes involved, whichever is greater, or confined not more than six months, or both.

(c) Any person failing to collect or remit to the department any tax required in connection with a delivery sale shall be assessed, in addition to any other penalty, a penalty of five times the retail value of the cigarettes involved.

(d) Any cigarettes sold or attempted to be sold in a delivery sale that does not meet the requirements of this article shall be forfeited to this state and destroyed. All fixtures, equipment, and all other materials and personal property on the premises of any person who, with the intent to defraud this state, violates any of the requirements of this article, shall be forfeited to this state.

§16-9E-8. Enforcement.

For violations of this article resulting in a delivery of tobacco products in this state, the prosecuting attorney of the county where the delivery is made shall have the power to prosecute the violation and to bring any action necessary to prevent further violations. The Attorney General or any person who holds a valid permit under 26 U.S.C. §5712 may bring any actions required to enforce all other requirements of this article and to prevent all other violations of its provisions.

§16-9F-1. Definition.

As used in this article, "counterfeit cigarettes" means cigarettes that: (a) Have false manufacturing labels; (b) are not manufactured by the manufacturer indicated on the container; or (c) have a false tax stamp affixed to the container.

§16-9F-2. Prohibition of counterfeit cigarettes.

It shall be unlawful for any person to knowingly possess or sell counterfeit cigarettes, and all counterfeit cigarettes and the equipment, materials and personal property used in substantial connection with a knowing violation of this article may be seized and destroyed by any law-enforcement agency of this state.

§16-9F-3. Penalties.

(a) Any person who knowingly violates the provisions of this article with a total quantity of less than two cartons of cigarettes shall, for the first offense, be punished by a civil penalty of no more than $1,000, and for a second or subsequent offense involving a total quantity of less than two cartons of cigarettes shall be punished by a civil penalty of no more than $5,000 and the revocation for a period of six months of any business held by the person.

(b) Any person who knowingly violates the provisions of this article with a total quantity of two or more cartons of cigarettes shall, for the first offense, be punished by a civil penalty of no more than $2,000, and for a second or subsequent offense involving a total quantity of two or more cartons of cigarettes shall be punished by a civil penalty of no more than $50,000 and the revocation for a period of one year of any business registration certificate held by the person.

§16-9F-4. Enforcement.

The Attorney General, the prosecuting attorney for the county in which counterfeit cigarettes are found or any person who holds a valid permit under 26 U.S.C. §5712 may bring an action in the circuit court of that county to prevent or restrain violations of this article by any person, or any person controlling that person.

§16-10-1. Determination of death.

An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.

§16-10-2. Uniformity of construction and application.

This article shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this article among states enacting it.

§16-10-3. Civil and criminal immunity.

A physician or any other person authorized by law to determine death who makes such determination in accordance with section one of this article is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his acts or the acts of others based on that determination. Any person who acts in good faith in reliance on a determination of death is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for such act.

§16-10-4. Short title.

This article may be cited as the "Uniform Determination of Death Act."

§16-11-1. Male or female sterilization procedures.

It shall be lawful for any physician duly licensed by the state, when so requested by any person other than a minor, or mentally incompetent person, or any other person suffering from any similar disability which would affect their ability to enter into a valid contractual agreement, to perform upon such person, a male or female sterilization procedure: Provided, That a request in writing is made by such person and that at the time of such request a full and reasonable medical explanation is given by the physician to such person as to the meaning and consequences of such operation: Provided, however, That the female sterilization procedure shall only take place in a hospital or facility duly licensed by the state board of health Should this be Secretary of the Department of Health and and authorized by said board to perform similar operations, or a hospital or facility administered or owned by the state and duly authorized by said board to perform such operations.

Nothing in this section shall require any hospital or other medical facility to admit any patient for the purpose of undergoing a sterilization operation. No hospital shall be subject to any legal or other penalty or restrictions or shall incur any civil liability because of any refusal to perform, accommodate or assist in any sterilization procedure for any reason. No person shall be required to perform or participate in medical procedures which result in the sterilization of an individual, and the refusal of any person to perform or participate in such medical procedure shall not be a basis for any legal sanction to any person. No hospital administrator or governing board of any hospital shall terminate the employment of, prevent or impair the practice or occupation of, or impose any other penalties or restrictions upon any person who refuses to perform or participate in a sterilization procedure.

§16-11-2. Immunity of persons performing operation.

No properly licensed health care facility or any superintendent or administrator thereof, or physician or any other person legally participating in any such properly requested sterilization operation shall be liable either civilly or criminally by reason of such participation: Provided, That this section shall not be construed to be in derogation of any actionable negligence occurring during or tort liability arising from such operation.

§16-12-1. Incorporation as sanitary district for sewage disposal; petition, notice and hearing; election; form of ballot; expenses of election.

Whenever any area of contiguous territory shall contain one or more incorporated cities, towns, and/or villages, and shall be so situated that the construction and maintenance of a plant or plants for the purification and treatment of sewage and the maintenance of one or more outlets for the drainage thereof, after having been so treated and purified by and through such plant or plants will conduce to the preservation of the public health, comfort, and convenience, the same may be incorporated as a sanitary district under this article in the manner following, to wit:

Any 400 legal voters, residents within the limits of such proposed sanitary district, may petition the county commission of the county in which the proposed sanitary district, or the major portion thereof, is located, to cause the question to be submitted to the legal voters of such proposed sanitary district, whether such proposed territory shall be organized as a sanitary district under this article; such petition shall be addressed to the county commission and shall contain a definite description of the boundaries of the territory to be embraced in the such sanitary district, and the name of such proposed sanitary district: Provided, That no territory shall be included within more than one sanitary district organized under this article.

Notice shall be given by such county commission within 10 days after receiving the petition, of the time and place when a hearing on the petition for a sanitary district shall be held, by publication of such notice as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be the area of the sanitary district. The first publication shall be made at least 20 days prior to such hearing. The hearing on the petition for a sanitary district shall be held not later than 30 days after the county commission receives the said petition. At such hearing the president of the county commission shall preside, and all persons resident within the limits of such proposed sanitary district shall have an opportunity to be heard upon the question of the location and boundary of such proposed sanitary district, and to make suggestions regarding the same, and the said county commission, after hearing statements, evidence, and suggestions, shall fix and determine the limits and boundaries of such proposed sanitary district as stated in the original petition unless by a vote of the majority of the legal voters resident within the limits of such proposed sanitary district, present at the said hearing, it should be decided to alter and amend such petition to change and redetermine the limits and boundaries of such proposed sanitary district.

After such determination by the county commission the same shall be incorporated in an order which shall be spread at length upon the records of the county commission. Upon the entering of such order, the county commission shall submit to the legal voters of the proposed sanitary district, the question of organization and establishment of the proposed sanitary district as determined by said county commission, at an election, to be held concurrently with the next regularly scheduled primary or general election, notice whereof shall be given by the county commission at least 20 days prior thereto by publication of such notice as a Class II-O legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be the area of the proposed sanitary district. Such notice shall specify briefly the purpose of such election, with the description of such proposed sanitary district, and the time and place for holding such election.

Each legal voter resident within such proposed sanitary district shall have the right to cast a ballot at such election. Ballots at elections held under this section shall be in substantially the following form, to wit:

/ / For sanitary district.

/ / Against sanitary district.

The ballots so cast shall be issued, received, returned, and canvassed in the same manner and by the same officers as is provided by law in the case of ballots cast for county officers, except as herein modified. The county commission shall cause a statement of the result of such election to be spread on the records of the county commission. If a majority of the votes cast upon the question of the incorporation of the proposed sanitary district shall be in favor of the proposed sanitary district, such proposed sanitary district shall thenceforth be deemed an organized sanitary district under this article. All courts in this state shall take judicial notice of the existence of all sanitary districts organized under this article.

The expenses of holding said special election shall be paid by the county commission of said county, in which said proposed sanitary district, or the major portion thereof, is located, out of the general funds of said county: Provided, That in the event such sanitary district is established and incorporated under this article, then said sanitary district shall repay to said county the expenses incurred in holding said special election within two years from the date of incorporating said sanitary district.

§16-12-2. Board of trustees.

The county court of the county in which the said district or a major portion thereof is located, shall, by and with the approval of the majority of the council of the municipality situate within the said sanitary district, which at the last official census was shown to have the largest population, and within a period of twenty days after the adoption of said article, appoint a board of trustees, consisting of three members, who shall be residents and qualified voters in said district, for the government, control and management of the affairs and business of each sanitary district organized under this article. The trustees shall hold their office respectively for one, two and three years, from the first Monday of May next after their appointment and until their successors are appointed and have qualified, and thereafter on or before the second Monday in April of each year the said county court by and with the approval of the majority of the council of the municipality situate within the said sanitary district, which at the last official census was shown to have the largest population, shall appoint one trustee whose term shall be for three years commencing the first Monday in May of the year in which they are respectively appointed. The length of the term of the first trustees shall be determined by lot at their first meeting.

Said county court shall require each of said trustees to enter into bond, with security to be approved by such county court, in such sum as said county court may determine.

Whenever a vacancy in said board of trustees shall occur, either from death, resignation, refusal to qualify, or for any other reason, the county court by and with the approval of the majority of the council of the municipality situate within the said sanitary district, which at the last official census was shown to have the largest population, shall have power to fill such vacancy by appointment; and such person so appointed shall qualify for office in the manner hereinbefore stated and shall thereupon assume the duties of the office for the unexpired term to which such person was appointed: Provided, however, That the membership of the board of trustees shall at all times consist of two members who shall be residents and qualified voters of the municipality situate within the said sanitary district, which at the last official census was shown to have the largest population, and that the third member shall at all times be a resident and qualified voter within the said sanitary district, but from outside the corporate limits of the municipality situate within the said sanitary district, which at the last official census was shown to have the largest population.

Said trustees shall, from the time of their appointment, as provided in this article, be construed to be in law and in equity a body corporate and politic by the name and style of "The board of trustees of the (insert name of county in which district is located) sanitary district," and as such and in such name may prosecute and defend suits and have all other duties, rights and powers incident to corporations, not inconsistent with the provisions of this article.

A majority of the board of trustees shall constitute a quorum, but a smaller amount may adjourn from day to day. A concurrence of the majority shall be necessary to any action of such board.

The trustees appointed in pursuance of the foregoing provisions of this article shall, immediately after their appointment and at their first meeting in May of each year thereafter, elect one of their number as president, whose duty shall be to preside over all meetings of said board, and to call special meetings of said board when he or a majority of said board deem such meetings necessary and in case said president should fail or refuse to call such meeting or meetings, then such meeting or meetings may be called by a majority of said board. Said board of trustees shall adopt rules and regulations for the conduct of the business of said board, and shall fix a stated time at which the regular meetings of said board shall be held. Said board of trustees shall establish an office within said district and shall cause to be kept a full, complete, accurate and itemized account of all its expenditures and appropriations and a complete record of all its proceedings, ordinances, orders, resolutions, rules and regulations.

§16-12-3. Employment of clerk and other officers; compensation; trustee or employee not to be interested in contract, etc., of sanitary district.

Said board of trustees shall have the right and power to employ a clerk, treasurer, chief engineer and attorney for such sanitary district, which officers shall hold their respective offices during the pleasure of such board, and shall give such bonds for the faithful performance of their duties as may be required by said board.

Said board shall also have power to employ and prescribe the duties and fix the compensation of all necessary officers and employees of said sanitary district: Provided, however, That a member of said board of trustees shall in no case receive a sum to exceed the sum of $300 per annum.

No trustee or employee of such sanitary district shall be directly or indirectly interested in any contract, work or business of sanitary district, or the sale of any article, the expense, price or consideration of which is paid by said sanitary district, nor in the purchase of any real estate or other property belonging to the sanitary district, or which shall be sold for taxes or assessments, or by virtue of legal process at the suit of said sanitary district: Provided, That nothing herein shall be construed as prohibiting the appointment or selection of any person as trustee or employee whose only interest in said sanitary district is as an owner of real estate in said sanitary district or of contributing to the payment of taxes levied by such sanitary district.

§16-12-4. Publication and effective date of ordinances imposing penalty or making appropriation; certificate of clerk as proof of ordinances, orders and resolutions; evidence of passage and legal publication.

All ordinances imposing any penalty or making any appropriations shall, within one month after they are passed, be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the sanitary district. No such ordinance shall take effect until ten days after it is so published, and all other ordinances, orders and resolutions shall take effect from and after their passage unless otherwise provided therein.

All ordinances, orders and resolutions, and the date of publication thereof, may be proven by certificate of the clerk under the seal of the corporation, and when printed in book or pamphlet form, and purporting to be published by the board of trustees, such book or pamphlet shall be received as evidence of the passage and legal publication of such ordinances, orders and resolutions, as of the dates mentioned in such book or pamphlet in all courts and places without further proof.

§16-12-5. Sewage treatment plant and necessary appurtenances; board not to operate waterworks system for municipality.

The board of trustees of any sanitary district organized under this article shall have power to build and construct and to defray the costs of providing for the disposal of the sewage thereof including the sewage and drainage of any incorporated city, town, or village within the boundaries of such sanitary district, and to save and preserve the water supplied to the inhabitants of such district from contamination and for that purpose may build, construct, enlarge, repair, maintain and operate a sewage treatment plant or plants together with such intercepting sewers, trunk sewers, lateral sewers, pumping and ejector stations, force mains, outfall sewer or sewers, channels, drains, and all other necessary or useful and convenient appurtenances in connection therewith: Provided, That such works established or constructed by said sanitary district shall serve and benefit the entire territory within the sanitary district and not otherwise: Provided further, That nothing in this article shall be construed to limit the power of the municipalities included in said sanitary district from constructing and establishing drains and sewers within the corporate limits of such municipality: And provided further, That before any general outlet, main or trunk sewer shall be constructed by any such municipality, included in said sanitary district, a plan or profile of any such proposed general outlet, main or trunk sewer shall be filed in the office of the board of trustees of said sanitary district and be approved by said board. Such main channels, drains, ditches and outlets for carrying off and disposing of the drainage, including the sewage of such sanitary district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they were designed, and such disposal plants and works for disposing of the sewage of said sanitary district may extend outside the territory included within such sanitary district and the rights and powers of said board of trustees over the portion of such channel or outlet or sewage disposal plant, or works, lying outside of such sanitary district, shall be the same as those vested in said board over said portions of such channels or outlets, plants or works, within the said sanitary district.

Such board may also treat and purify such sewage so that when the same shall flow into any lake or other watercourse, it will not injuriously contaminate the waters thereof, and may adopt any other feasible method to accomplish the object for which such sanitary district may be created, and may also provide means whereby the said sanitary district may reach and procure supplies of water for diluting and flushing purposes: Provided, however, That nothing herein contained shall be construed to empower and authorize such board of trustees to operate a system of waterworks for the purpose of furnishing or delivering water to any such municipality or to the inhabitants thereof.

§16-12-6. Penalty for failure to provide sewers and sewage treatment plant; duties of the Division of Environmental Protection and the bureau of public health; prosecution.

All sanitary districts organized under the provisions of this article shall proceed as rapidly as possible to provide sewers and a plant or plants for the treatment or purification of its sewage, which plant or plants shall be of suitable kind and sufficient capacity to properly treat and purify such sewage so as to conduce to the preservation of the public health, comfort and convenience and to render said sewage harmless, insofar as is reasonably possible, to animal, fish and plant life. Any violation of this proviso and any failure to observe and follow same, by any sanitary district organized under this article, is a misdemeanor on the part of the sanitary district and upon conviction, said sanitary district shall be punished by such fine as law and equity may require, and the trustees thereof may be removed from office as trustees of said sanitary district by an order of the court before whom the cause is heard. It is the duty of the Division of Environmental Protection or the bureau of public health or other body having proper supervision of such matters, to enforce the foregoing provisions; and upon complaint of said office or bureau it is the duty of the Attorney General or prosecuting attorney of the county in which such violation may occur, to institute and prosecute such cause by indictment or in the manner provided by law.

§16-12-7. Collections for maintenance and operating costs of works for industrial sewage; how costs determined.

In providing works for industrial sewage, commonly called industrial wastes, in the manner above provided, whether said industrial sewage is disposed of in combination with municipal sewage or independently, said sanitary district shall have power to apportion and collect therefor, from the producer thereof, fair additional construction, maintenance and operating costs over and above those covered by normal taxes and/or service rates or charges, and in case of dispute as to the fairness of such additional construction, maintenance and operating costs, then the same shall be determined by a board of three engineers, one appointed by said sanitary district, one appointed by such producer or producers, or their legal representatives, and the third to be appointed by the two engineers as above described. In the event the two engineers so selected shall fail to agree upon a third engineer, then upon petition of either of the parties the circuit judge shall appoint such third engineer. A decision of a majority of said board shall be binding on both parties and the costs of services of said board shall be shared by both parties equally.

§16-12-8. Acquisition and disposition of property.

Such sanitary district may acquire by purchase, condemnation, or otherwise, any and all real and personal property, right-of-way and privilege, either within or without its corporate limits, that may be necessary for its corporate purposes. The compensation to be paid for such use may be a gross sum, or it may be in the form of an annual rental, to be paid in yearly installments as and in the manner provided by the judgment or decree of the court wherein such proceedings may be had: Provided, however, That when such compensation is fixed at a gross sum all moneys for the purchase and condemnation of any property shall be paid before possession is taken or any work done thereon, and provided in case an appeal is taken by either party from the court in which such condemnation is ordered, whereby the damages are not finally determined, the amount of the damages awarded by such court shall be deposited with the clerk of such court, subject to the orders of such court, when the amount of damages shall be finally determined. All condemnation proceedings brought hereunder shall be governed by the statutes prescribing the procedure in case of eminent domain as provided by chapter fifty-four of the Code of West Virginia, 1931, as now or hereafter amended. Said sanitary district shall have the power to sell, convey, vacate and release the said real and personal property, right-of-way and privileges acquired by it when the same is no longer required for the purposes of said sanitary district.

§16-12-9. Borrowing money; procedure for issuance of revenue or tax obligation bonds; debt limitation.

Said sanitary district may borrow money for corporate purposes and may issue revenue and/or tax obligation bonds therefor, but shall not become indebted in any manner, or for any purpose whatsoever, beyond an amount in the aggregate to exceed five percent of the valuation of the taxable property within said district, to be ascertained by the last assessment for state and county taxes, previous to incurring of said indebtedness. Whenever the board of trustees of such sanitary district desires to issue bonds hereunder they shall order an election to be held in such sanitary district upon the question. Notice of such election shall be given by said board of trustees by publication of such notice as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty- nine of this code, and the publication area for such publication shall be the sanitary district. The first publication shall be made at least twenty days prior to said election. The notices of election shall state the amount of bonds to be issued and the polling places at which the election shall be held. The board of trustees shall appoint judges and clerks for such election and the return of such election shall be filed with the clerk of the board of trustees and be canvassed and the result ascertained by said board and entered upon the records of the sanitary district. If it shall appear that a majority of the voters voting at said election on said question shall have voted in favor of the issue of the said bonds, the board of trustees shall order and direct the execution of the bonds for and on behalf of said sanitary district. All bonds issued hereunder shall mature in not exceeding thirty annual installments. The ballots at elections held under this section shall be in substantially the following form, to wit:

Proposition to issue bonds of _________________ sanitary district to the amount of ___________________ dollars.

 ___

/___/ Yes.

 ___

/___/ No.

§16-12-10. Provision for service charges or direct annual tax to pay interest and principal of indebtedness.

At the time of, or before incurring any indebtedness, the board of trustees shall provide for the establishment and collection of service charges and/or a direct annual tax sufficient to pay the interest on such debt as it falls due, and also to pay and discharge the principal thereof as the same shall fall due, and at least within thirty years from the time of contracting the same. The trustees shall have power and it shall be their duty to establish and maintain just and equitable rates or charges for the use of, and the service rendered by such works, to be paid by the owner of each and every lot, parcel of real estate or building that is connected with and uses such works by or through any part of the sewerage system of the sanitary district, or that in any way uses or is served or benefited by such works, and may change and readjust such rates or charges from time to time. Such rates or charges shall be sufficient in each year for the payment of bond interest and principal requirements and the proper and reasonable expense of operation, repair, replacements and maintenance of the works so acquired or constructed from the proceeds of the revenue bonds hereby authorized to be issued.

The board of trustees may levy and collect other service charges and/or direct annual taxes for corporate purposes upon property within the territorial limits of such sanitary district, the aggregate amount of such direct annual taxes shall not exceed one third of one per cent of the value of the taxable property within the corporate limits, as the same shall be assessed and equalized for the state and county taxes of the year in which the levy is made: Provided, however, That a like direct annual tax in addition thereto may be levied when such additional tax has been authorized by the legal voters of such district at an election duly called therefor. Such election shall be governed by the terms of this article relating to elections held to decide on the proposition of issuing bonds of said district. The right to levy such additional tax, heretofore or hereafter authorized by the legal voters, may at any time after one or more tax levies thereunder, be terminated by a majority vote of the electors of such sanitary district at an election called for that purpose by the board of trustees of such sanitary district; it shall be the duty of the trustees of any such sanitary district to submit the proposition to terminate such additional taxing power when petitioned so to do by not less than ten percent of the legal voters of such sanitary district.

Said board of trustees shall cause the amount required to be raised by taxation in each year to be certified to the county clerk in the manner and at the time provided by the general revenue law. All taxes so levied and certified shall be collected and enforced in the same manner and by the same officers as state and county taxes, and shall be paid over by the officer collecting the same to the treasurer of the sanitary district in the manner and at the time provided by the general revenue law.

The treasurer shall, when the moneys of the district are deposited with any bank or other depository, require such bank or other depository to pay the same rates of interest for such moneys deposited as such bank or other depository is accustomed to pay depositors under like circumstances, in the usual course of business.

§16-12-10a. Ultimate liability for tax or service charge.

It is the intent of this article that the tax or service charge herein imposed by said board of trustees is a tax, the ultimate incidence of and liability for which shall be upon the property owner or ultimate consumer.

§16-12-11. Letting contracts; manner and cost of building additions or extensions; contracts to respond to emergency situations.

All contracts for work to be done by such sanitary district, the expense of which will exceed  $25,000, shall be let to the lowest responsible bidder therefor. The board of trustees shall cause to be published a notice informing the public and contractors of the general nature of the work and of the fact that detailed plans, drawings and specifications are on file in the office of such board of trustees and calling for sealed proposals for the construction of the work to be done at a date not earlier than ten days after the last of such publications, such notice to be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty- nine of this code, and the publication area for such publication shall be the sanitary district. Said board of trustees shall require each bidder to deposit with his or her respective bid a certified check for an amount not less than two and one-half percent of the engineer’s estimate of such work to insure the execution of the contract for which such bid is made. The board of trustees may impose such conditions as it may deem necessary upon the bidders with regard to bond and surety, guaranteeing the good faith and responsibility of such bidders, and the faithful performance of such work according to contract, or for any other purpose. The board of trustees shall have the right to reject any and all bids, but if it does reject all bids, before other bids may be received notices shall be published as originally required. The board of trustees shall have power to let portions of said proposed work under different contracts.

Any additions or extensions to any sewage disposal plant, or sewers or drains or any other work constructed under the provisions of this article, shall be built under contract entered into under the provisions of this section in the same manner as the contract for the original plant or work. The cost of such additions or extensions, and of any additional lands or rights-of-ways acquired by said board, may be met by the sale of additional bonds to be issued and sold by the trustees, and the levy of taxes and/or the collection of service charges to retire such bonds, all as provided in this article.

Emergency repairs shall be exempt from the bidding requirements of this section. For the purpose of this section, the term emergency repairs means repairs that if not made immediately will seriously impair the use of building components, systems, and public infrastructure or cause danger to persons using the building components, systems, and public infrastructure.

§16-12-12. When territory outside of district may use system.

Any sanitary district formed hereunder shall have the right to permit territory lying outside its limits, whether within any other sanitary district or not, to drain into and use any channel or drain made by it, upon such payments, terms and conditions as may be mutually agreed upon, and any sanitary district formed hereunder is hereby given full power and authority to contract for the right to use any drain or channel which may be made by any other sanitary district, upon such terms as may be mutually agreed upon, and to raise the money called for by any such contract in the same way and to the same extent as such district is authorized to raise money for any other corporate purposes.

§16-12-13. How additional contiguous territory may be added to sanitary district.

Additional contiguous territory may be added to any sanitary district organized under this article in the manner following, to-wit: Ten percent or more of the legal voters resident within the limits of such proposed addition to such sanitary district may petition the county court of the county in which the original petition for the formation of said sanitary district was filed, to cause the question to be submitted to the legal voters of such proposed additional territory whether said proposed additional territory shall become a part of any contiguous sanitary district organized under this article and whether such additional territory and the taxpayers thereof shall assume a proportionate share of the bonded indebtedness, if any, of such sanitary district. Such petition shall be addressed to the county court of the county in which the original petition for the formation of the said sanitary district was filed, and shall contain a definite description of the boundaries of the territory sought to be added: Provided, That no territory disqualified in section one of this article shall be included.

Upon filing such petition in the office of the county clerk of the county of which the original petition for the organization of such sanitary district was filed, it shall be the duty of the county court of the county in which the original petition for the formation of the said sanitary district was filed, to call to its assistance the county courts of all the counties in which portions of such sanitary district and the proposed addition or additions thereto are situated, and such county courts after electing a presiding officer from among themselves, shall constitute themselves a board of commissioners which shall have the power and authority to consider the limits and boundaries of such proposed additional territory, in the same manner as provided for locating, fixing and deciding of the limits and boundaries of the original sanitary district, as provided in section one of this article. If such sanitary district as originally organized and the proposed addition or additions are located in one county, the county court of such county shall act in the same capacity and manner as provided for in locating, fixing and deciding of the limits and boundaries of the original sanitary district, as provided in section one of this article.

Notice shall be given by the county court of the time and place when and where all persons interested will be heard substantially as provided in and by section one of this article. The conduct of the hearing and the manner of conducting the subsequent election on the question whether the proposed additional territory shall become a part of such sanitary district and the issuance, reception, return and canvassing of the ballots shall be, as nearly as possible, in accordance with the provisions of section one of this article; the ballot for the election provided for in this section shall be substantially as follows, to wit:

/ / For joining sanitary district and assuming a proportionate share of bonded indebtedness, if any.

/ / Against joining sanitary district and assuming a proportionate share of bonded indebtedness, if any.

If a majority of votes cast at such election shall be in favor of becoming a part of such sanitary district and if the trustees of such sanitary district accept the proposed additional territory by ordinance annexing the same, the county court shall enter an appropriate order in the records of the county court, and such additional territory shall thenceforth be deemed an integral part of such sanitary district. Any such sanitary district upon petition addressed to such county court, signed by a majority of the owners of lands constituting such territory who shall have arrived at lawful age and who represent a majority in area of such territory, which said petition shall contain a definite description of the boundaries of such territory, shall set forth the willingness of the petitioners that such territory and the taxpayers thereof assume a proportionate share of the bonded indebtedness, if any, of such sanitary district. Upon the filing of such petition and notice of, and hearing, and decision upon the same by the aforesaid county court or board of commissioners, all as hereinbefore provided, such county court or board of commissioners shall enter an order or orders containing its findings and decision as to the boundaries of the territory to be annexed, and thereupon, if the board of trustees of such sanitary district shall pass an ordinance annexing the territory described in such order to said sanitary district, said county court shall enter an appropriate order as hereinbefore provided, and such additional territory shall thenceforth be deemed an integral part of such sanitary district.

§16-12-14. Disconnection of territory from sanitary district.

Any contiguous territory located within the boundaries of any sanitary district organized under this article, and upon the border of such sanitary district, may become disconnected from such sanitary district in the manner following, to wit: Ten percent or more of the legal voters resident in the territory sought to be disconnected from such sanitary district may petition the county court of the county in which the original petition for the organization of said sanitary district was filed, to cause the question of such disconnection to be submitted to the legal voters of such territory whether such territory shall be disconnected. Said petition shall be addressed to the county court of the county in which the original petition for the formation of such sanitary district was filed and shall contain a definite description of the boundaries of such territory to be disconnected and recite as a fact, that there is no bonded indebtedness of such sanitary district incurred while such territory to be disconnected was a part of such sanitary district and that such territory to be disconnected is not, at the time of the filing of such petition, and will not be, either benefited or served by any work or improvement either then existing or then authorized by said sanitary district. Upon filing such petition in the office of the county clerk of the county in which the original petition for the formation of such sanitary district has been filed it shall be the duty of the county court of the county in which the original petition for the formation of such sanitary district was filed, to consider the boundaries of such territory and the facts upon which the petition is founded, and shall consider the limits and boundaries of such proposed territory, in the same manner as provided for locating, fixing and deciding of the limits and boundaries of the original sanitary district, as provided in section one of this article. If any part of the territory proposed to be disconnected is situated in another county or counties other than that county in which the original petition was filed, then it shall be the duty of the said county court of the county in which the original petition was filed to call to its assistance the county courts of counties in which portions of such territory proposed to be disconnected is situated; such county courts shall constitute themselves a board of commissioners, and after electing a presiding officer from among themselves, shall consider the boundaries of such territory and the facts upon which the petition is founded, and shall consider the limits and boundaries of such proposed territory to be disconnected, in the same manner as provided for locating, fixing and deciding of the limits and boundaries of the original sanitary district, as provided in section one of this article: Provided, however, That it shall be the duty of the county court or the board of commissioners to deny the prayer of the petition for the disconnecting of any territory from the original sanitary district, if the material allegations therein contained are not founded in fact.

Notice shall be given by the county court of the time and place, when and where all persons interested will be heard substantially as provided in section one of this article. The conduct of the hearing and the manner of conducting the subsequent election on the question whether such territory shall become disconnected and the issuance, reception, return and canvassing of the ballots shall be, as nearly as possible, in accordance with the provisions of section one of this article. The ballots for the election provided for in this section shall be substantially as follows, to wit:

 ___

 /___/ For disconnection from sanitary district.

 ___

/___/ Against disconnection from sanitary district.

If a majority of the votes cast at such election shall be in favor of disconnection, and if the trustees of such sanitary district shall, by ordinance, disconnect such territory, thereupon the county court of the county in which the original petition for the formation of such sanitary district was filed, shall enter an appropriate order in the records of the said county court and thereafter such territory shall henceforth be deemed disconnected from such sanitary district.

§16-13-1. Acquisition, operation, etc., of works; acquisition of property; issuance of bonds.

(a) Any municipal corporation and/or sanitary district in the State of West Virginia is hereby authorized and empowered to own, acquire, construct, equip, operate and maintain within and/or without the corporate limits of such municipal corporation:

(1) A sewage collection system and/or a sewage treatment plant or plants, intercepting sewers, outfall sewers, force mains, pumping stations, ejector stations, and all other appurtenances necessary or useful and convenient for the collection and/or treatment, purification and disposal, in a sanitary manner, of the liquid and solid waste, sewage, night soil and industrial waste of such municipal corporation and/or sanitary district, including acquisition of the municipal sewerage system resulting from the severance of a combined system pursuant to section one-b, article twenty, chapter eight of this code; and

(2) A stormwater collection system and control system, including all lines, pumping stations and all other facilities and appurtenances necessary or useful and convenient for the collection and control of stormwater, and an associated stormwater management program.

(b) Any municipal corporation and/or sanitary district in the State of West Virginia is hereby authorized and empowered to acquire by gift, grant, purchase, condemnation, or otherwise, all necessary lands, rights-of-way and property therefor, within and/or without the corporate limits of such municipal corporation and/or sanitary district, and to issue revenue bonds to pay the cost of such works and property.

(c) Any municipality may serve and supply the facilities of such sewerage system and a stormwater system and associated stormwater management program within the corporate limits of the municipality and within the area extending twenty miles beyond the corporate limits of such municipality: Provided, That the municipality may not serve or supply the facilities of such sewerage system or stormwater system within the corporate limits of any other municipality without the consent of the governing body thereof: Provided, however, That for stormwater systems, within the twenty miles beyond the municipality's corporate limits the only areas the municipality may serve and supply shall be those areas from which stormwater affects or drains into the municipality.

(d) No obligations shall be incurred by any municipality and/or sanitary district in construction or acquisition except such as is payable solely from the funds provided under the authority of this article.

(e) No municipal corporation or sanitary district may acquire, construct, establish, extend, repair or equip or thereafter repair, maintain and operate a combined waterworks, sewerage or stormwater system, which includes highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

§16-13-2. Sanitary board to supervise and control construction, etc., of works; appointment of board; definitions.

(a) The construction, acquisition, improvement, equipment, custody, operation and maintenance of any works for the collection, treatment or disposal of sewage and, in addition, for the collection and control of stormwater and the collection of revenues therefrom for the service rendered thereby, shall be under the supervision and control of a sanitary board appointed by the governing body as set forth in section eighteen of this article.

(b) As used in this article, the following terms shall have the following meanings unless the text clearly indicates otherwise.

(1) "Board" means the sanitary board as set up in section eighteen of this article.

(2) "Governing body" means the mayor and council or other legally constituted governing body of any municipality.

(3) "Municipality" means any municipal corporation, incorporated city, town, village or sanitary district in the State of West Virginia.

(4) "Sewage works" means a works for the collection and/or treatment, purification and disposal of sewage, in its entirety or any integral part thereof.

(5) "Stormwater system" or "stormwater works" means a stormwater system in its entirety or any integral part thereof used to collect and dispose of stormwater and an associated stormwater management program. It includes all facilities, structures and natural water courses used for collecting and conducting stormwater to, through and from drainage areas to the points of final outlet, including, but not limited to, any and all of the following: Inlets, conduits, corals, outlets, channels, ponds, drainage easements, water quality facilities, catch basins, ditches, streams, gulches, flumes, culverts, syphons, retention or detention basins, dams, floodwalls, levies, pipes, flood control systems and pumping stations, and associated stormwater management program. The term "stormwater system" and "stormwater works" shall not include highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.

(6) "Stormwater management program" means those activities associated with the management, operation, maintenance and control of stormwater and stormwater works, including, but not limited to, public education, stormwater and surface runoff water quality improvement, mapping, planning, flood control, inspection, enforcement and any other activities required by state and federal law: Provided, That, as used in this article, "stormwater management program" shall not include those activities associated with the management, operation, maintenance and control of highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

(7) "Works" means sewage works and stormwater works either separately or collectively.

§16-13-3. Powers of sanitary board; contracts; employees; compensation thereof; extensions and improvements; replacement of damaged public works.

The board shall have power to take all steps and proceedings and to make and enter into all contracts or agreements necessary or incidental to the performance of its duties and the execution of its powers under this article: Provided, That any contract relating to the financing of the acquisition or construction of any works, or any trust indenture as provided for, shall be approved by the governing body of the municipality before the same shall be effective.

The board may employ engineers, architects, inspectors, superintendents, managers, collectors, attorneys, and other employees as in its judgment may be necessary in the execution of its powers and duties, and may fix their compensation, all of whom shall do the work as the board shall direct. All compensation and all expenses incurred in carrying out the provisions of this article shall be paid solely from funds provided under the authority of this article, and the board shall not exercise or carry out any authority or power herein given it so as to bind said board of said municipality beyond the extent to which money shall have been or may be provided under the authority of this article.

No contract or agreement with any contractor or contractors for labor and/or material, exceeding in amount the sum of  $25,000, shall be made without advertising for bids, which bids shall be publicly opened and award made to the best bidder, with power in the board to reject any or all bids.

After the construction, installation, and completion of the works, or the acquisition thereof, the board shall operate, manage and control the same and may order and complete any extensions, betterments and improvements of and to the works that the board may consider expedient, if funds therefor be available or are made available as provided in this article, and shall establish rules and regulations for the use and operation of the works, and of other sewers, stormwater conduits, and drains connected therewith so far as they may affect the operation of such works, and do all things necessary or expedient for the successful operation thereof, including, but not limited to, those activities necessary to comply with all federal and state requirements, including stormwater and surface runoff water quality improvement activities.

The sanitary board may declare an emergency situation in the event of collector line breaks or vital treatment plant equipment failure and shall be exempted from competitive bidding requirements and enter into direct purchase agreements or contracts for the expenses. All public ways or public works damaged or destroyed by the board in carrying out its authority under this article shall be restored or repaired by the board and placed in their original condition, as nearly as practicable, if requested so to do by proper authority, out of the funds provided by this article.

§16-13-4. Payment of preliminary expenses of surveys, etc.

All necessary preliminary expenses actually incurred by the board of any municipality in the making of surveys, estimates of costs and of revenue, employment of engineers or other employees, the giving of notices, taking of options and all other expenses of whatsoever nature, necessary to be paid prior to the issue and delivery of the revenue bonds pursuant to the provisions of this article, may be met and paid in the following manner. Said board may from time to time certify such items of expense to the clerk or recorder of said municipality, directing him to pay the several amounts thereof, and thereupon said clerk or recorder shall at once draw a warrant or warrants upon the treasurer of said municipality, which warrant or warrants shall be paid out of the General Funds of said municipality not otherwise appropriated, without a special appropriation being made therefor by the governing body; or, in case there are no general funds of such municipality not otherwise appropriated, the clerk or recorder shall recommend to the governing body the temporary transfer from other funds of such municipality of a sufficient amount to meet such items of expense, or the making of a temporary loan for such purpose, and such governing body shall thereupon at once make such transfer of funds, or authorize such temporary loan in the same manner that other temporary loans are made by such municipality: Provided, however, That the fund or funds of such municipality from which such payments are made shall be fully reimbursed and repaid by said board out of the first proceeds of the sale of revenue bonds hereinafter provided for, and before any other disbursements are made therefrom, and the amount so advanced to pay such preliminary expenses, shall be a first charge against the proceeds resulting from the sale of such revenue bonds until the same has been repaid as herein provided.

§16-13-5. Ordinance necessary before acquisition or construction of works.

Before any municipality shall construct or acquire any works under this article, the governing body shall upon petition of the board, enact an ordinance or ordinances which shall: (a) Set forth a brief and general description of the works and, if the same are to be constructed, a reference to the preliminary report which shall heretofore have been prepared and filed by an engineer chosen by the board as aforesaid; (b) set forth the cost thereof estimated by the engineer chosen as aforesaid; (c) order the construction or acquisition of such works; (d) direct that revenue bonds of the municipality shall be issued pursuant to this article in such an amount as may be found necessary to pay the cost of the works; and (e) contain such other provisions as may be necessary in the premises.

§16-13-6. Publication and hearing upon ordinance.

After such ordinance shall have been adopted, an abstract of the ordinance, determined by the governing body to contain sufficient information as to give notice of the contents of such ordinance, together with the following described notice, shall be published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the municipality. The notice shall state that said ordinance has been adopted, and that the municipality contemplates the issuance of the bonds described in the ordinance, and that any person interested may appear before the governing body upon a certain date, which shall not be less than ten days subsequent to the first date of publication of such abstract and notice which shall not be prior to the last date of publication of such abstract and notice, and present protests. At such hearing all objections and suggestions shall be heard and the governing body shall take such action as it shall deem proper in the premises: Provided, however, That if at such a hearing written protest is filed by thirty percent or more of the owners of real estate situate in said municipality, then the governing body of said municipality shall not take further action unless four fifths of the qualified members of the said governing body assent thereto.

§16-13-7. Acquisition by condemnation or purchase.

Every such municipality shall have power to condemn any such works to be acquired and any land, rights, easements, franchises and other property, real or personal, deemed necessary or convenient for the construction of any such works, or for extensions, improvements, or additions thereto, and in connection therewith may have and exercise all the rights, powers and privileges of eminent domain granted to municipal corporations under the laws relating thereto. Title to property condemned shall be taken in the name of the municipality. Proceedings for such appropriation of property shall be under and pursuant to the provisions of chapter fifty-four, of the Code of West Virginia, 1931, and acts amendatory and supplemental thereto: Provided, That the municipality shall be under no obligation to accept and pay for any property condemned, and shall in no event pay for any property condemned or purchased, except from the funds provided pursuant to this article; and in any proceedings to condemn, such orders may be made as may be just to the municipality and to the owners of the property to be condemned, and an undertaking or other security may be required securing such owners against any loss or damage to be sustained by reason of the failure of the municipality to accept and pay for the property, but such undertaking or security shall impose no liability upon the municipality except such as may be paid from the funds provided under the authority of this article. In event of the acquisition by purchase the board may obtain and exercise an option from the owner or owners of said property for the purchase thereof, or may enter into a contract for the purchase thereof, and such purchase may be made upon such terms and conditions, and in such manner as the board may deem proper. In event of the acquisition of any works already constructed by purchase or condemnation, the board at or before the time of the adoption of the ordinance described in section five hereof, shall cause to be determined what repairs, replacements, additions, and betterments will be necessary in order that such works may be effective for their purpose, and an estimate of the cost of such improvements shall be included in the estimate of cost required by section five hereof, and such improvement shall be made upon the acquisition of the works and as a part of the cost thereof.

§16-13-8. Cost of works.

The cost of the works shall be deemed to include the cost of acquisition or construction thereof, the cost of all property, rights, easements, and franchises deemed necessary or convenient therefor and for the improvements determined upon as provided in this article; interest upon bonds prior to and during construction or acquisition and for six months after completion of construction or of acquisition of the improvement last mentioned; engineering and legal expenses; expense for estimates of cost and of revenues; expenses for plans, specifications and surveys; other expenses necessary or incident to determining the feasibility or practicability of the enterprise, administrative expense, and such other expenses as may be necessary or incident to the financing herein authorized and the construction or acquisition of the works and the placing of the works in operation and the performance of the things herein required or permitted in connection with any thereof.

§16-13-9. Contracts and obligations incurred to be paid for solely by revenue bonds.

Nothing in this article contained shall be so construed as to authorize or permit any municipality to make any contract or to incur any obligation of any kind or nature except such as shall be payable solely from the funds provided under this article. Funds for the payment of the entire cost of any of the works referred to in this article, exclusive of any portions of the cost that may be defrayed out of any grant or contribution, shall be provided by the issuance of revenue bonds of the municipality, the principal and interest of which shall be payable solely from the fund herein provided for the payment, and the bonds may not, in any respect, be a corporate indebtedness of the municipality, within the meaning of any statutory or Constitutional limitations thereon. All the details of the bonds shall be determined by ordinance or ordinances of the municipality.

§16-13-10. Interest on and redemption of bonds; form; statement on face of bond; negotiability; exemption from taxation; registration; execution; sale; disposition of surplus proceeds; additional and temporary bonds.

Such revenue bonds shall bear interest at not more than twelve percent per annum, payable at such times, and shall mature at such time or times as may be determined by ordinance. Such bonds may be made redeemable before maturity at the option of the municipality, to be exercised by said board, at not more than the par value thereof and a premium of five percent, under such terms and conditions as may be fixed by the ordinance authorizing the issuance of the bonds. The principal and interest of the bonds may be made payable in any lawful medium. Said ordinance shall determine the form of the bonds, either coupon or registered, shall set forth any registration and conversion privileges, and shall fix the denomination or denominations of such bonds and the place or places of payment of the principal and interest thereof, which may be at any bank or trust company within or without the state. The bonds shall contain a statement on their face that the municipality shall not be obligated to pay the same or the interest thereon except from the special fund provided from the net revenues of the works. All such bonds shall be, and shall have and are hereby declared to have all the qualities and incidents of, negotiable instruments under the Uniform Commercial Code of the state. Said bonds shall be exempt from all taxation, state, county and municipal. Such bonds shall be executed by the proper legally constituted authorities of the municipality, and be sealed with the corporate seal of the municipality, and in case any of the officers whose signatures appear on the bonds or coupons shall cease to be such officers, before delivery of such bonds, such signatures shall nevertheless be valid and sufficient for all purposes the same as if they had remained in office until such delivery. Such bonds shall be sold at a price not lower than a price, which when computed upon standard tables of bond values, will show a net return of not more than thirteen percent per annum to the purchaser upon the amount paid therefor, and the proceeds derived therefrom shall be used exclusively for the purposes for which said bonds are issued and same may be sold at one time or in parcels as funds are needed. Any surplus of bond proceeds over and above the cost of the works shall be paid into the sinking fund hereinafter provided. If the proceeds of the bonds, by error of calculation or otherwise, shall be less than the cost of the works, additional bonds may in like manner be issued to provide the amount of such deficit and, unless otherwise provided in said ordinance authorizing the issuance of the bonds first issued or in the trust indenture hereinafter authorized, shall be deemed to be of the same issue and shall be entitled to payment without preference or priority of the bonds first issued. Prior to the preparation of the definitive bonds, temporary bonds may under like restrictions be issued with or without coupons, exchangeable for definitive bonds upon the issuance of the latter.

§16-13-11. Additional bonds to extend or improve works.

The governing body may provide by said ordinance authorizing the issuance of the bonds or in the trust indenture hereinafter referred to, that additional bonds may thereafter be authorized and issued, at one time or from time to time under such limitations and restrictions as may be set forth in said ordinance and/or trust indenture, for the purpose of extending, improving or bettering the works when deemed necessary in the public interest, such additional bonds to be secured and be payable from the revenues of the works equally with all other bonds issued pursuant to said ordinance without preference or distinction between any one bond and any other definite bonds upon the issuance of the latter.

§16-13-12. Additional bonds for extension, etc., of works to have equal priority with original bonds.

The governing body may provide by said ordinance authorizing the issuance of the bonds or in the trust indenture hereinafter referred to, that additional bonds may thereafter be authorized and issued, at one time or from time to time, under such limitations and restrictions as may be set forth in said ordinance and/or trust indenture, for the purpose of extending, improving or bettering the works when deemed necessary in the public interest, such additional bonds to be secured and be payable from the revenues of the works equally with all other bonds issued pursuant to said ordinance without preference or distinction between any one bond and any other bond by reason of priority of issuance or otherwise.

§16-13-13. Application of revenue from bonds; lien.

All moneys received from any bonds issued pursuant to this article, after reimbursements and repayment to said municipality of all amounts advanced for preliminary expenses as provided in section four of this article, shall be applied solely to the payment of the cost of the work, extensions, improvements or betterments, or to the appurtenant sinking fund and there shall be and hereby is created and granted a lien upon such moneys, until so applied, in favor of the holders of the bonds or the trustees hereinafter provided for.

§16-13-14. Securing bonds by trust indenture.

In the discretion of the governing body such bonds may be secured by a trust indenture by and between the municipality and a corporate trustee, which may be any trust company or bank having the powers of a trust company within the State of West Virginia but no such trust indenture shall convey or mortgage the works or any part thereof. The ordinance authorizing the revenue bonds and fixing the details thereof may provide that such trust indenture may contain such provisions for protecting and enforcing the rights and remedies of the bondholders as may be reasonable and proper, not in violation of law, including covenants setting forth the duties of the municipality and the board in relation to the construction or acquisition of the works and the improvement, operation, repair, maintenance and insurance thereof, and the custody, safeguarding and application of all moneys, and may provide that the works shall be contracted for, constructed and paid for under the supervision and approval of consulting engineers employed or designated by the board and satisfactory to the original bond purchasers, successors, assigns or nominees, who may be given the right to require the security given by contractors and by any depository of the proceeds of bonds or revenues of the works or other moneys pertaining thereto be satisfactory to such purchasers, successors, assigns or nominees. Such indenture may set forth the rights and remedies of the bondholders and/or such trustee, restricting the individual right of action of bondholders as is customary in trust indentures securing bonds and debentures of corporations. Except as in this article otherwise provided, the governing body may provide by ordinance or in such trust indenture for the payment of the proceeds of the sale of the bonds and the revenues of the works to such officer, board or depository as it may determine for the custody thereof, and for the method of disbursement thereof, with such safeguards and restrictions as it may determine.

§16-13-15. Sinking fund; transfer of balance of net revenues.

At or before the issuance of any such bonds the governing body shall by said ordinance create a sinking fund, to be remitted to and administered by the West Virginia Municipal Bond Commission, for the payment of the bonds and the interest thereon and the payment of the charges of banks or trust companies for making payment of such bonds or interest, and shall set aside and pledge a sufficient amount of the net revenues of the works, hereby defined to mean the revenues of the works remaining after the payment of the reasonable expense of operation, repair and maintenance, such amount to be paid by the board into said sinking fund at intervals to be determined by ordinance prior to issuance of the bonds, for: (a) The interest upon such bonds as such interest shall fall due; (b) the necessary fiscal agency charges for paying bonds and interest; (c) the payment of the bonds as they fall due, or, if all bonds mature at one time, the proper maintenance of a sinking fund in such amounts as are necessary and sufficient for the payment thereof at such time; (d) a margin for safety and for the payment of premiums upon bonds retired by call or purchase as herein provided, which margin, together with any unused surplus of such margin carried forward from the preceding year, shall equal ten percent of all other amounts so required to be paid into the sinking fund. Such required payments shall constitute a first charge upon all the net revenue of the works. Prior to the issuance of the bonds the board may by ordinance be given the right to use or direct the West Virginia Municipal Bond Commission to use such sinking fund or any part thereof in the purchase of any of the outstanding bonds payable therefrom at the market price thereof, but not exceeding the price, if any, at which the same shall in the same year be payable or redeemable, and all bonds redeemed or purchased shall forthwith be cancelled and shall not again be issued. After the payments into such fund as herein required, the board may at any time in its discretion transfer all or any part of the balance of the net revenues, after reserving an amount deemed by the board sufficient for operation, repair and maintenance for an ensuing period of not less than twelve months and for depreciation, into the sinking fund or into a fund for extensions, betterments and additions to the works. The amounts of the balance of the net revenue as and when so set apart shall be remitted to the West Virginia Municipal Bond Commission to be retained and paid out by said commission consistent with the provisions of this article and with the ordinance pursuant to which such bonds have been issued. The West Virginia Municipal Bond Commission is hereby authorized to act as fiscal agent for the administration of such sinking fund, under any ordinance passed pursuant to the provisions of this article, and shall invest all such sinking funds as provided by general law. Notwithstanding the foregoing, payments of principal and interest on any bonds owned by the United States of America or any agency or department thereof may be made by the governing body directly thereto.

§16-13-16. Rates for service; deposit required for new customers; forfeiture of deposit; reconnecting deposit; tenant’s deposit; change or readjustment; hearing; lien and recovery; discontinuance of services.

A governing body has the power and duty, by ordinance, to establish and maintain just and equitable rates, fees, or charges for the use of and the service rendered by:

(a) Sewerage works, to be paid by the owner of each lot, parcel of real estate or building that is connected with and uses the works by or through any part of the sewerage system of the municipality or that in any way uses or is served by the works; and

(b) Stormwater works, to be paid by the owner of each lot, parcel of real estate or building that in any way uses or is served by the stormwater works or whose property is improved or protected by the stormwater works or any user of such stormwater works.

(c) The governing body may change and readjust the rates, fees, or charges from time to time. However, no rates, fees, or charges for stormwater services may be assessed against highways, road and drainage easements or stormwater facilities constructed, owned or operated by the West Virginia Division of Highways.

(d) All new applicants for service shall indicate to the governing body whether they are an owner or tenant with respect to the service location. An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.

(e) The governing body may collect from all new applicants for service a deposit of $50 or two twelfths of the average annual usage of the applicant’s specific customer class, whichever is greater, to secure the payment of service rates, fees, and charges in the event they become delinquent as provided in this section. In any case where a deposit is forfeited to pay service rates, fees, and charges which were delinquent at the time of disconnection or termination of service, service may not be reconnected or reinstated by the governing body until another deposit equal to $50 or a sum equal to two twelfths of the average usage for the applicant’s specific customer class, whichever is greater, is remitted to the governing body. After 12 months of prompt payment history, the governing body shall return the deposit to the customer or credit the customer’s account with interest at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the governing body is not required to return the deposit until the time the tenant discontinues service with the governing body. Whenever any rates, fees, rentals, or charges for services or facilities furnished remain unpaid for a period of 20 days after they become due, the user of the services and facilities provided is delinquent. The user is liable until all rates, fees, and charges are fully paid. The governing body may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water services to a delinquent user of sewer facilities 10 days after the sewer services become delinquent regardless of whether the governing body utilizes the security deposit to satisfy any delinquent payments: Provided, however, That nothing contained within the rules of the Public Service Commission may require agents or employees of the governing body to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill.

(f) The rates, fees, or charges shall be sufficient in each year for the payment of the proper and reasonable expense of operation, repair, replacements and maintenance of the works and for the payment of the sums herein required to be paid into the sinking fund. Revenues collected pursuant to this section shall be considered the revenues of the works.

(g) No such rates, fees, or charges may be established until after a public hearing, at which all the users of the works and owners of property served or to be served thereby and others interested shall have an opportunity to be heard concerning the proposed rates, fees or charges.

(h) After introduction of the ordinance fixing the rates, fees or charges, and before the same is finally enacted, notice of the hearing, setting forth the proposed schedule of rates, fees or charges, shall be given by publication as a Class I legal advertisement in compliance with §59-3-1 et seq. of this code and the publication area for the publication shall be the municipality. The first publication shall be made at least five days before the date fixed in the notice for the hearing.

(i) After the hearing, which may be adjourned, from time to time, the ordinance establishing rates, fees or charges, either as originally introduced or as modified and amended, shall be passed and put into effect. A copy of the schedule of the rates, fees, and charges shall be kept on file in the office of the board having charge of the operation of the works, and also in the office of the clerk of the municipality, and shall be open to inspection by all parties interested. The rates, fees, or charges established for any class of users or property served shall be extended to cover any additional premises thereafter served which fall within the same class, without the necessity of any hearing or notice.

(j) Any change or readjustment of the rates, fees, or charges may be made in the same manner as the rates, fees, or charges were originally established as hereinbefore provided: Provided, That if a change or readjustment be made substantially pro rata, as to all classes of service, no hearing or notice shall be required. The aggregate of the rates, fees, or charges shall always be sufficient for the expense of operation, repair and maintenance and for the sinking fund payments.

(k) All rates, fees, or charges, if not paid when due, shall constitute a lien upon the premises served by the works. If any service rate, fee, or charge is not paid within 20 days after it is due, the amount thereof, together with a penalty of 10 percent and a reasonable attorney’s fee, may be recovered by the board in a civil action in the name of the municipality. The lien may be foreclosed against the lot, parcel of land or building in accordance with the laws relating thereto. Where both water and sewer services are furnished by any municipality to any premises, the schedule of charges may be billed as a single amount or individually itemized and billed for the aggregate thereof.

(l) Whenever any rates, rentals, fees or charges for services or facilities furnished shall remain unpaid for a period of 20 days after they become due, the property and the owner thereof, as well as the user of the services and facilities shall be delinquent until such time as all rates, fees, and charges are fully paid. When any payment for rates, rentals, fees or charges becomes delinquent, the governing body may use the security deposit to satisfy the delinquent payment.

(m) The board collecting the rates, fees, or charges shall be obligated under reasonable rules to shut off and discontinue both water and sewer services to all delinquent users of water, sewer or stormwater facilities and shall not restore either water facilities or sewer facilities to any delinquent user of any such facilities until all delinquent rates, fees, or charges for water, sewer, and stormwater facilities, including reasonable interest and penalty charges, have been paid in full, as long as the actions are not contrary to any rules or orders of the Public Service Commission: Provided, That nothing contained within the rules of the Public Service Commission may be considered to require any agents or employees of the municipality or governing body to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill.

§16-13-17. Government units subject to established rates.

The municipality and any county government, state government and federal government served by the services of the works shall be subject to the same fees, charges and rates established as provided in this article, or to fees, charges and rates established in harmony therewith, for service rendered the municipality, county, state or federal government and shall pay such rates, fees or charges when due from corporate funds and the same shall be considered to be a part of the revenues of the works as herein defined, and be applied as herein provided for the application of the revenues. However, no rates, fees or charges for stormwater services may be assessed against highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.

§16-13-18. Supervision of works by sanitary board; organization of board; qualifications, terms and compensation of members.

(a) The governing body shall provide by ordinance the organization of the board, and that the custody, administration, operation and maintenance of such works are under the supervision and control of a sanitary board, created under this section.

(b) The sanitary board shall be composed of either the mayor of the municipality, or the city manager thereof, if the municipality has a city manager form of government, and two persons appointed by the governing body: Provided, That, in the event of an acquisition or merger of an existing works, the governing body may increase the membership to a maximum of four members in addition to the mayor or city manager of the municipality served by the board.

(c) During the construction period, one of the members must be a registered professional engineer, except that if a registered professional engineer is under contract for the project, the membership of the board is not required to include a registered professional engineer. The engineer member of the board need not be a resident of the municipality. After the construction of the plant for which no registered professional engineer is under contract has been completed, the engineer member may be succeeded by a person not an engineer. No officer or employee of the municipality, whether holding a paid or unpaid office, is eligible for appointment to the sanitary board until at least one year after the expiration of the term of his or her public office. The appointees shall originally be appointed for terms of two and three years respectively, and upon the expiration of each term and each succeeding term, an appointment of a successor shall be made in like manner for a term of three years. Vacancies shall be filled for an unexpired term in the same manner as the original appointment. Each member shall give bond, if any, as required by ordinance. The mayor or city manager shall act as chairman of the sanitary board, which shall elect a vice chairman from its members and designate a secretary and treasurer (but the secretary and the treasurer may be one and the same) who need not be a member or members of the sanitary board. The vice chairman, secretary and treasurer shall hold office at the will of the sanitary board.

(d) The members of the sanitary board are entitled to receive compensation for their services, either as a salary or as payments for meetings attended, as the governing body determines, and are entitled to payment for their reasonable expenses incurred in the performance of their duties. The governing body shall fix the reasonable compensation of the secretary and treasurer in its discretion, and shall fix the amounts of bond to be given by the treasurer. All compensation, together with the expenses previously referred to in this section, shall be paid solely from funds provided under the authority of this article. The sanitary board may establish bylaws, rules and regulations for its own governance.

§16-13-18a. Publication of financial statement.

Every sanitary board shall prepare a financial statement and cause the same to be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the sanitary district. Such statement shall contain an itemized account of the receipts and expenditures of the board during the previous fiscal year, showing the source from which all money was derived, and the name of the person to whom an order was issued, together with the amount of such order, and why such order was issued, arranging the same under distinct heads, and including all money received and expended from the sale of bonds, and also a specific statement of the debts of such board, showing the purpose for which any debt was contracted, the amount of money in all funds at the end of the preceding year, and the amount of uncollected service charges. Such statement shall be prepared and published by the board as soon as practicable after the close of the fiscal year: Provided, That such statement for the fiscal year ending June 30, 1956, may be published any time during the year 1957. The statement shall be sworn to by the chairman and secretary and treasurer of the board. If a board fails or refuses to perform the duties hereinbefore named, every member of the board concurring in such failure or refusal shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500 and the circuit court or criminal court and justices of the peace, of the county where the offense was committed, shall have concurrent jurisdiction to try such offense.

§16-13-19. Contract with other municipalities for service of works; powers of lessee as to rates; intercepting sewers.

Any municipality operating a sewage collecting system and/or a sewage disposal plant or plants or stormwater works as defined in this article, or which as herein provided has ordered the construction or acquisition of such works (in this section called the owner), is hereby authorized to contract with one or more other municipal corporations or political subdivisions within the state (in this section called the lessee), and such lessees are hereby authorized to enter into contracts with the owners, for the service of such works to such lessees and their inhabitants, but only to the extent of the capacity of the works without impairing the usefulness thereof to the owners, upon such terms and conditions as may be fixed by the boards and approved by ordinances of the respective contracting parties: Provided, That no contract shall be made for a period of more than forty years or in violation of the provisions of said ordinance authorizing bonds hereunder or in violation of the provisions of said trust indenture.

The lessee shall by ordinance have power to establish, change and adjust rates, fees and charges for the service rendered therein by the works against the owners of the premises served, in the manner hereinbefore provided for establishing, changing and adjusting rates, fees and charges for the service rendered in the municipality where the works are owned and operated, and such rates, fees or charges shall be collectible and shall be a lien as herein provided for rates, fees and charges made by the owner.

The necessary intercepting sewers and appurtenant works for connecting the works of the owner with the sewerage system of the lessee shall be constructed by the owner and/or the lessee upon such terms and conditions as may be set forth in said contract, and the cost or that part of the cost thereof which is to be borne by the owner may be paid as a part of the cost of the works from the proceeds of bonds issued under this article unless otherwise provided by said ordinance or trust indenture prior to the issuance of the bonds. The income received by the owner under any contract shall, if so provided in said ordinance or trust indenture, be considered to be a part of the revenues of the works as in this article defined and be applied as herein provided for the application of the revenues.

§16-13-20. Discharge of lien on property acquired.

No property shall be acquired under this article upon which any lien or other encumbrance exists, unless at the time such property is acquired a sufficient sum of money be deposited in trust to pay and redeem such lien or encumbrance in full.

§16-13-21. Action on certificates or attached coupons; receivers.

Any holder of any such certificates or any of the coupons attached thereto, and the trustee, if any, except to the extent the rights herein given may be restricted by said ordinance authorizing issuance of the bonds or by the trust indenture, may either at law or in equity, by suit, action, mandamus or other proceeding protect and enforce any and all rights granted hereunder or under such ordinance or trust indenture, and may enforce and compel performance of all duties required by this article or by such ordinance or trust indenture to be performed by the municipality issuing the bonds or by the board or any officer, including the making and collecting of reasonable and sufficient charges and rates for service rendered by the works. If there be any failure to pay the principal or interest of any of the bonds on the date therein named for such payment, any court having jurisdiction of the action may appoint a receiver to administer the works on behalf of the municipality and the bondholders and/or trustee, except as so restricted, with power to charge and collect rates sufficient to provide for the payment of the expenses of operation, repair and maintenance and also to pay any bonds and interest outstanding and to apply the revenues in conformity with this article and the said ordinance and/or trust indenture.

§16-13-22. Powers conferred in addition to existing powers; jurisdiction outside corporate limits.

The authority herein given shall be in addition to and not in derogation of any power existing in any municipality under any statutory or charter provisions which it may now have or hereafter adopt. For all purposes of this article, all municipal corporations shall have jurisdiction for twenty miles outside the corporate limits thereof: Provided, That for stormwater systems, within the twenty miles beyond the municipality's corporate limits the only areas the municipality may serve and supply shall be those areas from which stormwater affects or drains into the municipality.

The jurisdiction and authority provided by this section does not extend to highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.

§16-13-22a. Grants, loans and advances.

Any municipality is authorized and empowered to accept loans or grants and procure loans or temporary advances evidenced by notes or other negotiable instruments issued in the manner, and subject to the privileges and limitations, set forth with respect to bonds authorized to be issued under the provisions of this article, for the purpose of paying part or all of the cost of acquisition or construction of said sewage works and the construction of betterments and improvements thereto, and for the other purposes herein authorized, from any authorized agency of the state or from the United States of America or any federal or public agency or department of the United States or any private agency, corporation or individual, which loans or temporary advances, including the interest thereon, may be repaid out of the proceeds of bonds authorized to be issued under the provisions of this article, the revenues of the said sewage works or grants to the municipality from any agency of the state or from the United States of America or any federal or public agency or department of the United States or any private agency, corporation or individual or from any combination of such sources of payment, and to enter into the necessary contracts and agreements to carry out the purposes hereof with any agency of the state, the United States of America or any federal or public agency or department of the United States, or with any private agency, corporation or individual. Any other provisions of this article to the contrary notwithstanding, interest on any such loans or temporary advances may be paid from the proceeds thereof until the maturity of such notes or other negotiable instrument.

In no event shall any such loan or temporary advance be a general obligation of the municipality and such loans or temporary advances, including the interest thereon, shall be paid solely from the sources specified in this section.

§16-13-22b. Contracts for abatement of pollution.

When determined by its legislative body to be in the public interest and necessary for the protection of the public health, any municipality is authorized to enter into and perform contracts, whether long-term or short-term, with any industrial establishment for the provision and operation by the municipality of sewerage facilities to abate or reduce the pollution of waters caused by discharges of industrial wastes by the industrial establishment and the payment periodically by the industrial establishment to the municipality of amounts at least sufficient, in the determination of such legislative body, to compensate the municipality for the cost of providing (including payment of principal and interest charges, if any), and of operating and maintaining the sewerage facilities serving such industrial establishment.

§16-13-22c. Refunding bonds.

Any municipality is authorized to issue refunding revenue bonds to refund, pay or discharge all or any part of its outstanding revenue bonds, including interest thereon, if any, in arrears or about to become due. The relevant provisions in this article pertaining to revenue bonds shall be equally applicable in the authorization and issuance of refunding revenue bonds, including their terms and security, the ordinance, the trust indenture, rates, or other aspects of the bonds.

§16-13-22d. Subordination of bonds.

Notwithstanding any other provisions to the contrary in this article, any municipality authorizing the issuance of bonds under this article in an effort to aid in the abatement or reduction of the pollution of any waters or streams may provide in the ordinance authorizing the issuance of the bonds and in any trust indenture pertaining thereto that such bonds, or any additional bonds that may thereafter be issued to extend or improve the works, shall, to the extent and in the manner prescribed, be subordinated and be junior in standing, with respect to the payment of principal and interest and the security thereof, to such other bonds as are designated in the ordinance.

§16-13-22e. Operating contract.

Any such municipality may enter into contracts or agreements with any persons, firms or corporations for the operation and management of the facilities and properties of said sewerage system, or any part thereof, for such period of time and under such terms and conditions as shall be agreed upon between such municipality and such persons, firms or corporations. Such municipality shall have power to provide in the resolution authorizing the issuance of bonds hereunder, or in any trust indenture, securing such bonds, that such contracts or agreements shall be valid and binding upon the municipality as long as any of said bonds, or interest thereon, are outstanding and unpaid.

§16-13-22f. Exemption of bonds from taxation.

Said bonds and the interest thereon, together with all properties and facilities of said municipality owned or used in connection with the works, and all the moneys, revenues and other income of such municipality derived from such works shall be exempt from all taxation by the State of West Virginia or any county, municipality, political subdivision or agency thereof.

§16-13-22g. Covenants with bondholders.

Any resolution authorizing the issuance of bonds hereunder, or any trust indenture with any bank or trust company within or without the state, for the security of the bonds, may contain covenants with the holders of such bonds as to:

(a) The purpose or purposes to which the proceeds of sale of such bonds, or the revenues derived from the sewerage system or stormwater system, may be applied and the securing, use and disposition thereof, including, if considered desirable, the appointment of a trustee or depositary for any of such funds;

(b) The pledging of all or any part of the revenues derived from the ownership, operation or control of such sewerage systems or stormwater system, including any part thereof heretofore or hereafter constructed or acquired or derived from any other sources, to the payment of the principal of or interest thereon of bonds issued hereunder and for such reserve or other funds as may be considered necessary or desirable;

(c) The fixing, establishing and collecting of such fees, rentals or other charges for the use of the services and facilities of such sewerage system or stormwater system, including the parts thereof heretofore or hereafter constructed or acquired and the revision of same from time to time, as will always provide revenues at least sufficient to provide for all expenses of operation, maintenance and repair of such sewerage system or stormwater system, the payment of the principal of and interest on all bonds or other obligations payable from the revenues of such sewerage system or stormwater system, and all reserve and other funds required by the terms of the ordinance authorizing the issuance of such bonds;

(d) The transfer from the General Funds of the municipality to the account or accounts of such sewerage system or stormwater system of an amount equal to the cost of furnishing the municipality or any of its departments, boards or agencies with the services and facilities of such sewerage system or stormwater system;

(e) Limitations or restrictions upon the issuance of additional bonds or other obligations payable from the revenue of such sewerage system or stormwater system, and the rank or priority, as to lien and source and security for payment from the revenues of the sewerage system or stormwater system, between bonds payable from the revenues;

(f) The manner and terms upon which all bonds and other obligations issued hereunder may be declared immediately due and payable upon the happening of a default in the payment of the principal of or interest thereon, or in the performance of any covenant or agreement with bondholders, and the manner and terms upon which defaults may be declared cured and the acceleration of the maturity of such bonds rescinded and repealed;

(g) Budgets for the annual operation, maintenance and repair of such sewerage system or stormwater system and restrictions and limitations upon expenditures for such purposes, and the manner of adoption, modification, repeal or amendment thereof, including the approval of such budgets by consulting engineers designated by holders of bonds issued hereunder;

(h) The amounts of insurance to be maintained upon such sewerage system or stormwater system, or any part thereof, and the use and disposition of the proceeds of any insurance;

(i) The keeping of books of account, relating to such undertakings and the audit and inspection thereof, and the furnishing to the holders of bonds issued hereunder or their representatives, reports prepared, certified, or approved by accountants designated or approved by the holders of bonds issued hereunder;

(j) Such other additional covenants as shall be considered necessary or desirable for the security of the holders of bonds issued hereunder, notwithstanding that other covenants are not expressly enumerated hereunder, it being the intention hereof to grant to the municipalities the power to make any and all covenants or agreements necessary in order to secure greater marketability for bonds issued hereunder as fully and to the same extent as such covenants or agreements could be made by a private corporation rendering similar services and facilities and to grant such municipalities full and complete power to enter into any contracts, covenants or agreements with holder of bonds issued hereunder not inconsistent with the Constitution of the State of West Virginia.

§16-13-23. Article deemed full authority for construction, etc., of works and issue of bonds; alternative method; powers of state department of health unaffected.

This article, shall, without reference to any other statute, be deemed full authority for the construction, acquisition, improvement, equipment, maintenance, operation and repair of the works herein provided for and for the issuance and sale of the bonds by this article authorized, and shall be construed as an additional and alternative method therefor and for the financing thereof, and no petition or election or other or further proceeding in respect to the construction or acquisition of the works or to the issuance or sale of bonds under this article and no publication of any resolution, ordinance, notice or proceeding relating to such construction or acquisition or to the issuance or sale of such bonds shall be required except such as are prescribed by this article, any provisions of other statutes of the state to the contrary notwithstanding: Provided, however, That all functions, powers and duties of the state department of health shall remain unaffected by this article.

§16-13-23a. Additional powers of municipality to cease pollution.

(a) Notwithstanding any other provision contained in this article, and in addition thereto, the governing body of any municipality which has received or which hereafter receives an order issued by the Secretary of the Department of Environmental Protection or the Environmental Quality Board requiring the municipality to cease the pollution of any stream or waters is hereby authorized to establish and maintain, by ordinance, just and equitable rates, fees or charges for the use of the services and facilities of the existing municipal sewer system and/or stormwater system, or for the use of the services and facilities to be rendered upon completion of any works and system necessary by virtue of said order, to be paid by the owner, tenant or occupant of each and every lot or parcel of real estate or building that is connected with and uses any part of such sewer system or stormwater system, or that in any way uses or is served thereby, and may change and readjust such rates, fees or charges from time to time.

(b) The rates, fees or charges shall be sufficient to all the proper and reasonable costs and expenses of the acquisition and construction of plants, machinery and works for the collection, treatment, purification and disposal of sewage or stormwater and the repair, alteration and extension of existing sewer facilities or stormwater facilities, as may be necessary to comply with such order of the Secretary of the Department of Environmental Protection or the Environmental Quality Board, and for the operation, maintenance and repair of the entire works and system.

(c) The governing body shall create, by ordinance, a sinking fund to accumulate and hold any part or all of the proceeds derived from rates or charges until completion of the construction, to be remitted to and administered by the Municipal Bond Commission by expending and paying the costs and expenses of construction and operation in the manner as provided by said ordinance.

(d) After the completion of the construction, the rates, fees or charges shall be sufficient in each year for the payment of the proper and reasonable costs and expenses of operation, maintenance, repair, replacement and extension, from time to time, of the entire sewer and works or entire stormwater works.

(e) No such rates, fees or charges shall be established until after a public hearing, at which all the potential users of the works and owners of property served or to be served thereby and others shall have had an opportunity to be heard concerning the proposed rates or charges.

(f) After introduction of the ordinance fixing rates, fees or charges, and before the same is finally enacted, notice of such hearing setting forth the proposed schedule of rates, fees or charges shall be given by publication of notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code. The publication area for such publication is the municipality. The first publication shall be made at least ten days before the date fixed therein for the hearing.

(g) After such hearing, which may be adjourned from time to time, the ordinance establishing the rates, fees or charges, either as originally introduced or as modified and amended, may be passed and put into effect. A copy of the schedule of the rates, fees and charges so established shall be kept on file in the office of the sanitary board having charge of the construction and operation of such works and in the office of the clerk of the municipality. The schedule of rates, fees and charges shall be open to inspection by all parties interested. The rates, fees or charges established for any class of users or property served shall be extended to cover any additional premises thereafter served which fall within the same class, without the necessity of any hearing or notice.

(h) Any change or readjustment of rates, fees or charges may be made in the same manner as rates, fees or charges were originally established as hereinbefore provided: Provided, That if such change or readjustment be made substantially pro rata, as to all classes of service, no hearing or notice is required.

(i) If any rate, fee or charge is not paid within thirty days after it is due, the amount thereof, together with a penalty of ten percent and a reasonable attorney's fee, may be recovered by the sanitary board of the municipality in a civil action in the name of the municipality.

(j) Any municipality exercising the powers given herein has the authority to construct, acquire, improve, equip, operate, repair and maintain any plants, machinery or works necessary to comply with the order of the Secretary of the Department of Environmental Protection or the Environmental Quality Board and the authority provided herein to establish, maintain and collect rates, fees or charges is an additional and alternative method of financing such works and matters, and is independent of any other provision of this article insofar as the article provides for or requires the issuance of revenue bonds or the imposition of rates, fees and charges in connection with the bonds: Provided, That except for the method of financing such works and matters, the construction, acquisition, improvement, equipment, custody, operation, repair and maintenance of any plants, machinery or works in compliance with an order of the Secretary of the Department of Environmental Protection or the Environmental Quality Board and the rights, powers and duties of the municipality and the respective officers and departments thereof, including the sanitary board, are governed by the provisions of this article.

(k) The jurisdiction and authority provided by this section does not extend to highways, road and drainage easements and stormwater facilities constructed, owned or operated by the West Virginia Division of Highways and no rates, fees or charges for stormwater services or costs of compliance may be assessed against highways, road and drainage easements and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.

(l) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C.F.R. §122.26, has the authority to enact ordinances or regulations which allow for the issuance of orders, the right to enter properties and the right to impose reasonable fines and penalties regarding correction of violations of municipal stormwater ordinances or regulations within the municipal watershed served by the municipal stormwater system, as long as such rules, regulations, fines or actions are not contrary to any rules or orders of the Public Service Commission.

(m) Notice of a violation of a municipal stormwater ordinance or regulation shall be served in person to the alleged violator or by certified mail, return receipt requested. The notice shall state the nature of the violation, the potential penalty, the action required to correct the violation and the time limit for making the correction. Should a person, after receipt of proper notice, fail to correct the violation of the municipal stormwater ordinance or regulation, the municipality may make or have made the corrections of the violation and bring the party into compliance with the applicable stormwater ordinance or regulation. The municipality may collect the costs of correcting the violation from the person by instituting a civil action, as long as such actions are not contrary to any rules or orders of the Public Service Commission.

(n) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office.

§16-13-24. Article to be construed liberally.

This article being necessary for the public health, safety and welfare, it shall be liberally construed to effectuate the purpose thereof.

§16-13A-1. Legislative findings.

The Legislature of the State of West Virginia hereby determines and finds that the present system of public service districts within the state has provided a valuable service at a reasonable cost to persons who would otherwise have been unable to obtain public utility services. To further this effort, and to insure that all areas of the state are benefiting from the availability of public service district utility services and to further correct areas with health hazards, the Legislature concludes that it is in the best interest of the public to implement better management of public service district resources by expanding the ability and the authority of the Public Service Commission to assist public service districts by offering advice and assistance in operational, financial and regulatory affairs.

In addition to the expanded powers which shall be given to the Public Service Commission, the Legislature also concludes that it is in the best interest of the public for each county commission to review current technology available and consider consolidating existing public service districts where it is feasible and will not result in the interference with existing bond instruments. Further, if such consolidation is not feasible, the Legislature finds that it is in the best interest of the public for each county commission to review current technology available and consider consolidating or centralizing the management of public service districts within its county or multicounty area to achieve efficiency of operations. The Legislature also finds that additional guidelines should be imposed on the creation of new public service districts and that county commissions shall dissolve inactive public service districts as hereinafter provided. The Legislature also finds that the Public Service Commission shall promulgate rules and regulations to effectuate the expanded powers given to the commission relating to public service districts.

§16-13A-1a. Jurisdiction of the Public Service Commission.

The jurisdiction of the Public Service Commission relating to public service districts shall be expanded to include the following powers and the powers shall be in addition to all other powers of the Public Service Commission set forth in this code:

(a) To study, modify, approve, deny or amend the plans created under section one-b of this article for consolidation or merger of public service districts and their facilities, personnel or administration;

(b) To petition the appropriate circuit court for the removal of a public service district board member or members; and

(c) To create by general order a separate division within the Public Service Commission to provide assistance to public service districts in technological, operational, financial and regulatory matters, including, upon written request of the public service board, assistance to the board in deliberations regarding a proposed rate change or project.

§16-13A-1b. County commissions to develop plan to create, consolidate, merge, expand or dissolve public service districts.

Each county commission shall conduct a study of all public service districts which have their principal offices within its county and shall develop a plan relating to the creation, consolidation, merger, expansion or dissolution of such districts or the consolidation or merger of management and administrative services and personnel and shall present such plan to the Public Service Commission for approval, disapproval, or modification: Provided, That within ninety days of the effective date of this section each county commission in this state shall elect either to perform its own study or request that the Public Service Commission perform such study. Each county commission electing to perform its own study has one year from the date of election to present such plan to the Public Service Commission. For each county wherein the county commission elects not to perform its own study, the Public Service Commission shall conduct a study of such county. The Public Service Commission shall establish a schedule for such studies upon a priority basis, with those counties perceived to have the greatest need of creation or consolidation of public service districts receiving the highest priority. In establishing the priority schedule, and in the performance of each study, the bureau of public health and the Division of Environmental Protection shall offer their assistance and cooperation to the Public Service Commission. Upon completion by the Public Service Commission of each study, it shall be submitted to the appropriate county commission for review and comment. Each county commission has six months in which to review the study conducted by the Public Service Commission, suggest changes or modifications thereof, and present such plan to the Public Service Commission. All county plans, whether conducted by the county commission itself or submitted as a result of a Public Service Commission study, shall, by order, be approved, disapproved or modified by the Public Service Commission in accordance with rules promulgated by the Public Service Commission and such order shall be implemented by the county commission.

§16-13A-1c. General purpose of districts.

Any territory constituting the whole or any part of one or more counties in the state so situated that the construction or acquisition by purchase or otherwise and the maintenance, operation, improvement and extension of, properties supplying water, sewerage or stormwater services or gas distribution services or all of these within such territory, will be conducive to the preservation of the public health, comfort and convenience of such area, may be constituted a public service district under and in the manner provided by this article. The words "public service properties," when used in this article, shall mean and include any facility used or to be used for or in connection with: (1) The diversion, development, pumping, impounding, treatment, storage, distribution or furnishing of water to or for the public for industrial, public, private or other uses (herein sometimes referred to as "water facilities"); (2) the collection, treatment, purification or disposal of liquid or solid wastes, sewage or industrial wastes (herein sometimes referred to as "sewer facilities" or "landfills"); (3) the distribution or the furnishing of natural gas to the public for industrial, public, private or other uses (herein sometimes referred to as "gas utilities or gas system"); or (4) the collection, control or disposal of stormwater (herein sometimes referred to as "stormwater system" or "stormwater systems"), or (5) the management, operation, maintenance and control of stormwater and stormwater systems (herein sometimes referred to as "stormwater management program" or "stormwater management programs"). As used in this article "stormwater system" or "stormwater systems" means a stormwater system in its entirety or any integral part thereof used to collect, control or dispose of stormwater, and includes all facilities, structures and natural water courses used for collecting and conducting stormwater to, through and from drainage areas to the points of final outlet including, but not limited to, any and all of the following: Inlets, conduits, outlets, channels, ponds, drainage easements, water quality facilities, catch basins, ditches, streams, gulches, flumes, culverts, siphons, retention or detention basins, dams, floodwalls, pipes, flood control systems, levies and pumping stations: Provided, That the term "stormwater system" or "stormwater systems" does not include highways, road and drainage easements, or stormwater facilities constructed, owned or operated by the West Virginia Division of Highways. As used in this article "stormwater management program" or "stormwater management programs" means those activities associated with the management, operation, maintenance and control of stormwater and stormwater systems, and includes, but is not limited to, public education, stormwater and surface runoff water quality improvement, mapping, planning, flood control, inspection, enforcement and any other activities required by state and federal law: Provided, however, That the term "stormwater management program" or "stormwater management programs" does not include those activities associated with the management, operation, maintenance and control of highways, road and drainage easements, or stormwater facilities constructed, owned or operated by the West Virginia Division of Highways without the express agreement of the commissioner of highways.

§16-13A-2. Creation of districts by county commission; enlarging, reducing, merging, or dissolving district; consolidation; agreements, etc.; infringing upon powers of county commission; filing list of members and districts with the Secretary of State.

(a) The county commission of any county may propose the creation, enlargement, reduction, merger, dissolution, or consolidation of a public service district by any of the following methods: (1) On its own motion by order duly adopted, (2) upon the recommendation of the Public Service Commission, or (3) by petition of twenty-five percent of the registered voters who reside within the limits of the proposed public service district within one or more counties. The petition shall contain a description, including metes and bounds, sufficient to identify the territory to be embraced therein and the name of such proposed district: Provided, That after the effective date of this section, no new public service district shall be created, enlarged, reduced, merged, dissolved or consolidated under this section without the written consent and approval of the Public Service Commission, which approval and consent shall be in accordance with rules promulgated by the Public Service Commission and may only be requested after consent is given by the appropriate county commission or commissions pursuant to this section. Any territory may be included regardless of whether or not the territory includes one or more cities, incorporated towns or other municipal corporations which own and operate any public service properties and regardless of whether or not it includes one or more cities, incorporated towns or other municipal corporations being served by privately owned public service properties: Provided, however, That the same territory shall not be included within the boundaries of more than one public service district except where the territory or part thereof is included within the boundaries of a separate public service district organized to supply water, sewerage services, stormwater services or gas facilities not being furnished within such territory or part thereof: Provided further, That no city, incorporated town or other municipal corporation shall be included within the boundaries of the proposed district except upon the adoption of a resolution of the governing body of the city, incorporated town or other municipal corporation consenting.

(b) The petition shall be filed in the office of the clerk of the county commission of the county in which the territory to constitute the proposed district is situated, and if the territory is situated in more than one county, then the petition shall be filed in the office of the clerk of the county commission of the county in which the major portion of the territory extends, and a copy thereof (omitting signatures) shall be filed with each of the clerks of the county commission of the other county or counties into which the territory extends. The clerk of the county commission receiving such petition shall present it to the county commission of the county at the first regular meeting after the filing or at a special meeting called for the consideration thereof.

(c) When the county commission of any county enters an order on its own motion proposing the creation, enlargement, reduction, merger, dissolution or consolidation of a public service district, as aforesaid, or when a petition for the creation is presented, as aforesaid, the county commission shall at the same session fix a date of hearing in the county on the creation, enlargement, reduction, merger, dissolution or consolidation of the proposed public service district, which date so fixed shall be not more than forty days nor less than twenty days from the date of the action. Within ten days of fixing the date of hearing, the county commission shall provide the Executive Secretary of the Public Service Commission with a copy of the order or petition and notification of the time and place of the hearing to be held by the county commission. If the territory proposed to be included is situated in more than one county, the county commission, when fixing a date of hearing, shall provide for notifying the county commission and clerk thereof of each of the other counties into which the territory extends of the date so fixed. The clerk of the county commission of each county in which any territory in the proposed public service district is located shall cause notice of the hearing and the time and place thereof, and setting forth a description of all of the territory proposed to be included therein to be given by publication as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be by publication in each city, incorporated town or municipal corporation if available in each county in which any territory in the proposed public service district is located. The publication shall be at least ten days prior to the hearing.

(d) In all cases where proceedings for the creation, enlargement, reduction, merger, dissolution or consolidation of the public service districts are initiated by petition as aforesaid, the person filing the petition shall advance or satisfactorily indemnify the payment of the cost and expenses of publishing the hearing notice, and otherwise the costs and expenses of the notice shall be paid in the first instance by the county commission out of contingent funds or any other funds available or made available for that purpose. In addition to the notice required herein to be published, there shall also be posted in at least five conspicuous places in the proposed public service district, a notice containing the same information as is contained in the published notice. The posted notices shall be posted not less than ten days before the hearing.

(e) All persons residing in or owning or having any interest in property in the proposed public service district shall have an opportunity to be heard for and against its creation, enlargement, reduction, merger, dissolution or consolidation. At the hearing the county commission before which the hearing is conducted shall consider and determine the feasibility of the creation, enlargement, reduction, merger, dissolution or consolidation of the proposed district. If the county commission determines that the construction or acquisition by purchase or otherwise and maintenance, operation, improvement and extension of public service properties by the public service district will be conducive to the preservation of public health, comfort and convenience of such area, the county commission shall by order create, enlarge, reduce, merge, dissolve or consolidate such public service district. If the county commission, after due consideration, determines that the proposed district will not be conducive to the preservation of public health, comfort or convenience of the area or that the creation, enlargement, reduction, merger, dissolution or consolidation of the proposed district as set forth and described in the petition or order is not feasible, it may refuse to enter an order creating the district or it may enter an order amending the description of the proposed district and create, enlarge, reduce, merge, dissolve or consolidate the district as amended.

(f) If the county commission determines that any other public service district or districts can adequately serve the area of the proposed public service district, whether by enlargement, reduction, merger, dissolution or consolidation, it shall refuse to enter the order, but shall enter an order creating, enlarging, reducing, merging, dissolving or consolidating the area with an existing public service district, in accordance with rules adopted by the Public Service Commission for such purpose: Provided, That no enlargement of a public service district may occur if the present or proposed physical facilities of the public service district are determined by the appropriate county commission or the Public Service Commission to be inadequate to provide such enlarged service. The clerk of the county commission of each county into which any part of such district extends shall retain in his office an authentic copy of the order creating, enlarging, reducing, merging, dissolving or consolidating the district: Provided, however, That within ten days after the entry of an order creating, enlarging, reducing, merging, dissolving or consolidating a district, such order must be filed for review and approval by the Public Service Commission. The Public Service Commission may provide a hearing in the affected county on the matter and may approve, reject or modify the order of the county commission if it finds it is in the best interests of the public to do so. The Public Service Commission shall adopt rules relating to such filings and the approval, disapproval or modification of county commission orders for creating, enlarging, merging, dissolving or consolidating districts. The provisions of this section shall not apply to the implementation by a county commission of an order issued by the Public Service Commission pursuant to this section and section one-b, of this article.

(g) The county commission may, if in its discretion it deems it necessary, feasible and proper, enlarge the district to include additional areas, reduce the area of the district, where facilities, equipment, service or materials have not been extended, or dissolve the district if inactive or create or consolidate two or more such districts. If consolidation of districts is not feasible, the county commission may consolidate and centralize management and administration of districts within its county or multicounty area to achieve efficiency of operations: Provided, That where the county commission determines on its own motion by order entered of record, or there is a petition to enlarge the district, merge and consolidate districts, or the management and administration thereof, reduce the area of the district or dissolve the district if inactive, all of the applicable provisions of this article providing for hearing, notice of hearing and approval by the Public Service Commission shall apply. The Commission shall at all times attempt to bring about the enlargement or merger of existing public service districts in order to provide increased services and to eliminate the need for creation of new public service districts in those areas which are not currently serviced by a public service district: Provided, however, That where two or more public service districts are consolidated pursuant to this section, any rate differentials may continue for the period of bonded indebtedness incurred prior to consolidation. The districts may not enter into any agreement, contract or covenant that infringes upon, impairs, abridges or usurps the duties, rights or powers of the county commission, as set forth in this article, or conflicts with any provision of this article.

(h) A list of all districts and their current board members shall be filed by the county commission with the Secretary of State and the Public Service Commission by July 1, of each year.

§16-13A-3. District to be a public corporation and political subdivision; powers thereof; public service boards.

From and after the date of the adoption of the order creating any public service district, it is a public corporation and political subdivision of the state, but without any power to levy or collect ad valorem taxes. Each district may acquire, own, and hold property, both real and personal, in its corporate name, and may sue, may be sued, may adopt an official seal, and may enter into contracts necessary or incidental to its purposes, including contracts with any city, incorporated town, or other municipal corporation located within or without its boundaries for furnishing wholesale supply of water for the distribution system of the city, town, or other municipal corporation, or for furnishing stormwater services for the city, town, or other municipal corporation, and contract for the operation, maintenance, servicing, repair, and extension of any properties owned by it or for the operation and improvement or extension by the district of all or any part of the existing municipally owned public service properties of any city, incorporated town, or other municipal corporation included within the district: Provided, That no contract may extend beyond a maximum of 40 years, but provisions may be included therein for a renewal or successive renewals thereof and shall conform to and comply with the rights of the holders of any outstanding bonds issued by the municipalities for the public service properties.

The powers of each public service district shall be vested in and exercised by a public service board consisting of not less than three members who shall be persons residing within the district, who possess certain educational, business, or work experience which will be conducive to operating a public service district, with the exception, however, that in the event a public service board has had a vacancy for more than one year one member of the public service board may be a county commissioner of the county commission with authority to appoint the members of the board regardless of whether the commissioner resides within the district. In the event the public service district is providing any utility service and billing rates and charges to its customers, at least one board member shall be a rate-paying residential customer of the public service district: Provided, That if an existing public service board does not have a member who is a rate-paying residential customer of the public service district on July 1, 2013, the next following appointment to the board shall be a rate-paying residential customer of that public service district. For purposes of this section, “rate-paying residential customer” means a person who:

(1) In the case of a water or sewer public service district, is physically connected to and actively receiving residential public service district utility services; or

(2) In the case of a stormwater public service district, has storm water conveyed away from the residential property by a utility-owned system; and

(3) Has an active account in good standing and is the occupier of the residential property which is on the public service district utility service account.

Each board member shall, within six months of taking office, successfully complete the training program to be established and administered by the Public Service Commission in conjunction with the Department of Environmental Protection and the Bureau for Public Health. Board members may not be or become pecuniarily interested, directly or indirectly, in the proceeds of any contract or service, or in furnishing any supplies or materials to the district nor may a former board member be hired by the district in any capacity within a minimum of 12 months after the board member's term has expired or the board member has resigned from the district board. The members shall be appointed in the following manner:

Each city, incorporated town, or other municipal corporation having a population of more than 3,000 but less than 18,000 is entitled to appoint one member of the board, and each city, incorporated town, or other municipal corporation having a population in excess of 18,000 shall be entitled to appoint one additional member of the board for each additional 18,000 in population. The members of the board representing such cities, incorporated towns, or other municipal corporations shall be residents thereof and shall be appointed by a resolution of the governing bodies thereof and upon the filing of a certified copy or copies of the resolution or resolutions in the office of the clerk of the county commission which entered the order creating the district, the persons so appointed become members of the board without any further act or proceedings. If the number of members of the board so appointed by the governing bodies of cities, incorporated towns, or other municipal corporations included in the district equals or exceeds three, then no further members shall be appointed to the board and the members so appointed are the board of the district except in cases of merger or consolidation where the number of board members may equal five.

If no city, incorporated town, or other municipal corporation having a population of more than 3,000 is included within the district, then the county commission which entered the order creating the district shall appoint three members of the board, who are persons residing within the district and residing within the state of West Virginia, which three members become members of the board of the district without any further act or proceedings except in cases of merger or consolidation where the number of board members may equal five.

If the number of members of the board appointed by the governing bodies of cities, incorporated towns, or other municipal corporations included within the district is less than three, then the county commission which entered the order creating the district shall appoint such additional member or members of the board, who are persons residing within the district, as is necessary to make the number of members of the board equal three except in cases of merger or consolidation where the number of board members may equal five, and the member or members appointed by the governing bodies of the cities, incorporated towns, or other municipal corporations included within the district and the additional member or members appointed by the county commission as aforesaid, are the board of the district. A person may serve as a member of the board in one or more public service districts.

The population of any city, incorporated town, or other municipal corporation, for the purpose of determining the number of members of the board, if any, to be appointed by the governing body or bodies thereof, is the population stated for such city, incorporated town or other municipal corporation in the last official federal census.

Notwithstanding any provision of this code to the contrary, whenever a district is consolidated or merged pursuant to §16-13A-2 of this code, the terms of office of the existing board members shall end on the effective date of the merger or consolidation. The county commission shall appoint a new board according to rules promulgated by the Public Service Commission. Whenever districts are consolidated or merged no provision of this code prohibits the expansion of membership on the new board to five.

The respective terms of office of the members of the first board shall be fixed by the county commission and shall be as equally divided as may be, that is approximately one third of the members for a term of two years, a like number for a term of four years, the term of the remaining member or members for six years, from the first day of the month during which the appointments are made. The first members of the board appointed as aforesaid shall meet at the office of the clerk of the county commission which entered the order creating the district as soon as practicable after the appointments and shall qualify by taking an oath of office: Provided, That any member or members of the board may be removed from their respective office as provided in §16-13A-3a of this code.

Any vacancy shall be filled for the unexpired term within 30 days; otherwise successor members of the board shall be appointed for terms of six years and the terms of office shall continue until successors have been appointed and qualified. All successor members shall be appointed in the same manner as the member succeeded was appointed. The district shall provide to the Public Service Commission, within 30 days of the appointment, the following information: The new board member’s name, home address, home and office phone numbers, date of appointment, length of term, who the new member replaces, and if the new appointee has previously served on the board. The Public Service Commission shall notify each new board member of the legal obligation to attend training as prescribed in this section.

The board shall organize within 30 days following the first appointments and annually thereafter at its first meeting after January 1 of each year by selecting one of its members to serve as chair and by appointing a secretary and a treasurer who need not be members of the board. The secretary shall keep a record of all proceedings of the board which shall be available for inspection as other public records. Duplicate records shall be filed with the county commission and shall include the minutes of all board meetings. The treasurer is lawful custodian of all funds of the public service district and shall pay same out on orders authorized or approved by the board. The secretary and treasurer shall perform other duties appertaining to the affairs of the district and shall receive salaries as shall be prescribed by the board. The treasurer shall furnish bond in an amount to be fixed by the board for the use and benefit of the district.

The members of the board, and the chair, secretary, and treasurer thereof, shall make available to the county commission, at all times, all of its books and records pertaining to the district's operation, finances, and affairs, for inspection and audit. The board shall meet at least monthly.

§16-13A-3a. Removal of members of public service board.

The county commission or the Public Service Commission or any other appointive body creating or establishing a public service district under the provisions of this article, or any group of five percent or more of the customers of a public service district, may petition the circuit court of the county in which the district maintains its principal office for the removal of any member of the governing board thereof for consistent violations of any provisions of this article, for reasonable cause which includes, but is not limited to, a continued failure to attend meetings of the board, failure to diligently pursue the objectives for which the district was created, or failure to perform any other duty either prescribed by law or required by a final order of the Public Service Commission or for any malfeasance in public office. Any board member charged with a violation under this section who offers a successful defense against such charges shall be reimbursed for the reasonable costs of such defense from district revenues. Such costs shall be considered as costs associated with rate determination by the public service district and the Public Service Commission. If the circuit court judge hearing the petition for removal finds that the charges are frivolous in nature, the judge may assess all or part of the court costs, plus the reasonable costs associated with the board member's defense, against the party or parties who petitioned the court for the board member's removal.

§16-13A-4. Board chairman; members' compensation; procedure; district name.

(a) The chairman shall preside at all meetings of the board and may vote as any other member of the board. If the chairman is absent from any meeting, the remaining members may select a temporary chairman and if the member selected as chairman resigns as such or ceases for any reason to be a member of the board, the board shall select one of its members as chairman to serve until the next annual organization meeting.

(b) Salaries of the board members are:

(1) For districts with fewer than six hundred customers, up to $100 per attendance at regular monthly meetings and $75 per attendance at additional special meetings, total salary not to exceed $2,000 per annum;

(2) For districts with six hundred customers or more but fewer than two thousand customers, up to $125 per attendance at regular monthly meetings and $100 per attendance at additional special meetings, total salary not to exceed $3,250 per annum;

(3) For districts with two thousand customers or more, but fewer than four thousand customers, up to $150 per attendance at regular monthly meetings and $100 per attendance at additional special meetings, total salary not to exceed $4,500 per annum; and

(4) For districts with four thousand or more customers, up to $200 per attendance at regular monthly meetings and $150 per attendance at additional special meetings, total salary not to exceed $6,400 per annum.

The public service district shall certify the number of customers served to the Public Service Commission on July 1 of each fiscal year.

(c) Public service districts selling water to other water utilities for resale or public service districts which provide sewer treatment for other sewer utilities may adopt the following salaries for its board members:

(1) For districts with annual revenues of less than $50,000, up to $100 per attendance at regular monthly meetings and $75 per attendance at additional special meetings, total salary not to exceed $2,000 per annum;

(2) For districts with annual revenues of $50,000 or more, but less than $250,000, up to $125 per attendance at regular monthly meetings and $100 per attendance at special meetings, total salary not to exceed $3,250 per annum;

(3) For districts with annual revenues of $250,000 or more, but less than $500,000, up to $150 per attendance at regular monthly meetings and $100 per attendance at additional special meetings, total salary not to exceed $4,500 per annum; and

(4) For districts with annual revenues of $500,000 or more, up to $200 per attendance at regular monthly meetings and $150 per attendance at additional special meetings, total salary not to exceed $6,400 per annum.

The public service district shall certify the number of customers served and its annual revenue to the Public Service Commission on July 1 of each fiscal year.

(d) Board members may be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties as provided by the rules of the board. Notwithstanding any other provision of this code to the contrary, board members are not eligible for salary payment or reimbursement for expenses incurred prior to the public service district initiating service to its first customer. Salary and reimbursement for expenses may be incurred only at meetings occurring after the public service district initiated service to customers.

(e) The board shall by resolution determine its own rules of procedure, fix the time and place of its meetings and the manner in which special meetings may be called. Public notice of meetings shall be given in accordance with section three, article nine-a, chapter six of this code. Emergency meetings may be called as provided by that section. A majority of the members constituting the board also constitute a quorum to do business.

(f) The members of the board are not personally liable or responsible for any obligations of the district or the board, but are answerable only for willful misconduct in the performance of their duties. The county commission which created a district or county commissions if more than one created the district may, upon written request of the district, adopt an order changing the official name of a public service district: Provided, That the name change will not be effective until approved by the Public Service Commission of West Virginia and the owners of any bonds and notes issued by the district, if any, shall have consented, in writing, to the name change. If a district includes territory located in more than one county, the county commission or county commissions changing the name of the district shall provide any county commission into which the district also extends with a certified copy of the order changing the name of the district. The official name of any district created under the provisions of this article may contain the name or names of any city, incorporated town or other municipal corporation included therein or the name of any county or counties in which it is located.

§16-13A-5. General manager of board.

The board may employ a general manager to serve a term of not more than five years and until his or her successor is employed, and his or her compensation shall be fixed by resolution of the board. Such general manager shall devote all or the required portion of his or her time to the affairs of the district and may employ, discharge and fix the compensation of all employees of the district, except as in this article otherwise provided, and he or she shall perform and exercise such other powers and duties as may be conferred upon him or her by the board.

Such general manager shall be chosen without regard to his or her political affiliations and upon the sole basis of his or her administrative and technical qualifications to manage public service properties and affairs of the district and he or she may be discharged only upon the affirmative vote of two thirds of the board. Such general manager need not be a resident of the district at the time he or she is chosen. Such general manager may not be a member of the board but shall be an employee of the board.

The board of any public service district which purchases water, sewer or stormwater service from a municipal water, sewer or stormwater system or another public service district may, as an alternative to hiring its own general manager, elect to permit the general manager of the municipal water, sewer or stormwater system or public service district from which such water, sewer or stormwater service is purchased provide professional management to the district, if the appropriate municipality or public service board agrees to provide such assistance. The general manager shall receive reasonable compensation for such service.

§16-13A-6. Employees of board.

The board may in its discretion from time to time by resolution passed by a majority vote provide for the employment of an attorney, fiscal agent, one or more engineers and such other employees as the board may determine necessary and expedient. The board shall in and by such resolution fix the term of employment and compensation and prescribe the duties to be performed by such employees.

§16-13A-7. Acquisition and operation of district properties; contracts to respond to emergency situations.

The board of these districts shall have the supervision and control of all public service properties acquired or constructed by the district, and shall have the power, and it shall be its duty, to maintain, operate, extend and improve the same, including, but not limited to, those activities necessary to comply with all federal and state requirements, including water quality improvement activities. All contracts involving the expenditure by the district of more than $25,000 for construction work or for the purchase of equipment and improvements, extensions or replacements, shall be entered into only after notice inviting bids shall have been published as a Class I legal advertisement in compliance with the provision of article three, chapter fifty-nine of this code, and the publication area for such publication shall be as specified in section two of this article in the county or counties in which the district is located. The publication shall not be less than ten days prior to the making of any such contract. To the extent allowed by law, in-state contractors shall be given first priority in awarding public service district contracts. It shall be the duty of the board to ensure that local in-state labor shall be utilized to the greatest extent possible when hiring laborers for public service district construction or maintenance repair jobs. It shall further be the duty of the board to encourage contractors to use American made products in their construction to the extent possible. Any obligations incurred of any kind or character shall not in any event constitute or be deemed an indebtedness within the meaning of any of the provisions or limitations of the Constitution, but all such obligations shall be payable solely and only out of revenues derived from the operation of the public service properties of the district or from proceeds of bonds issued as hereinafter provided. No continuing contract for the purchase of materials or supplies or for furnishing the district with electrical energy or power shall be entered into for a longer period than fifteen years.

Emergency repairs shall be exempt from the bidding requirements of this section. For the purpose of this section, the term emergency repairs means repairs that if not made immediately will seriously impair the use of building components, systems, and public infrastructure or cause danger to persons using the building components, systems, and public infrastructure.

§16-13A-8. Acquisition and purchase of public service properties; right of eminent domain; extraterritorial powers.

The board may acquire any publicly or privately owned public service properties located within the boundaries of the district regardless of whether or not all or any part of such properties are located within the corporate limits of any city, incorporated town or other municipal corporation included within the district and may purchase and acquire all rights and franchises and any and all property within or outside the district necessary or incidental to the purpose of the district.

The board may construct any public service properties within or outside the district necessary or incidental to its purposes and each such district may acquire, construct, maintain and operate any such public service properties within the corporate limits of any city, incorporated town or other municipal corporation included within the district or in any unincorporated territory within ten miles of the territorial boundaries of the district: Provided, That if any incorporated city, town or other municipal corporation included within the district owns and operates either water facilities, sewer facilities, stormwater facilities or gas facilities or all of these, then the district may not acquire, construct, establish, improve or extend any public service properties of the same kind within such city, incorporated towns or other municipal corporations or the adjacent unincorporated territory served by such cities, incorporated towns or other municipal corporations, except upon, the consent of such cities, incorporated towns or other municipal corporations and in conformity and compliance with the rights of the holders of any revenue bonds or obligations theretofore issued by such cities, incorporated towns or other municipal corporations then outstanding and in accordance with the ordinance, resolution or other proceedings which authorize the issuance of such revenue bonds or obligations.

Whenever such district has constructed, acquired or established water facilities, sewer facilities, a stormwater system, stormwater management program or gas facilities for water, sewer, stormwater or gas services within any city, incorporated town or other municipal corporation included within a district, then such city, incorporated town or other municipal corporation may not thereafter construct, acquire or establish any facilities of the same kind within such city, incorporated town or other municipal corporation without the consent of such district.

For the purpose of acquiring any public service properties or lands, rights or easements deemed necessary or incidental for the purposes of the district, each such district has the right of eminent domain to the same extent and to be exercised in the same manner as now or hereafter provided by law for such right of eminent domain by cities, incorporated towns and other municipal corporations: Provided, That the power of eminent domain provided in this section does not extend to highways, road and drainage easements, or stormwater facilities constructed, owned or operated by the West Virginia division of highways without the express agreement of the commissioner of highways: Provided, however, That such board may not acquire all or any substantial part of a privately owned waterworks system unless and until authorized so to do by the public service commission of West Virginia, and that this section shall not be construed to authorize any district to acquire through condemnation proceedings either in whole or substantial part an existing privately owned waterworks plant or system or gas facilities located in or furnishing water or gas service within such district or extensions made or to be made by it in territory contiguous to such existing plant or system, nor may any such board construct or extend its public service properties to supply its services into areas served by or in competition with existing waterworks or gas facilities or extensions made or to be made in territory contiguous to such existing plant or system by the owner thereof.

§16-13A-9. Rules; service rates and charges; discontinuance of service; required water and sewer connections; lien for delinquent fees.

(a)(1) The board may make, enact, and enforce all needful rules in connection with the acquisition, construction, improvement, extension, management, maintenance, operation, care, protection, and the use of any public service properties owned or controlled by the district. The board shall establish, in accordance with this article, rates, fees, and charges for the services and facilities it furnishes, which shall be sufficient at all times, notwithstanding the provisions of any other law or laws, to pay the cost of maintenance, operation, and depreciation of the public service properties and principal of and interest on all bonds issued, other obligations incurred under the provisions of this article, and all reserve or other payments provided for in the proceedings which authorized the issuance of any bonds under this article. The schedule of the rates, fees, and charges may be based upon:

(A) The consumption of water or gas on premises connected with the facilities, taking into consideration domestic, commercial, industrial, and public use of water and gas;

(B) The number and kind of fixtures connected with the facilities located on the various premises;

(C) The number of persons served by the facilities;

(D) Any combination of paragraphs (A), (B), and (C) of this subdivision; or

(E) Any other basis or classification which the board may determine to be fair and reasonable, taking into consideration the location of the premises served and the nature and extent of the services and facilities furnished. However, no rates, fees, or charges for stormwater services may be assessed against highways, road, and drainage easements or stormwater facilities constructed, owned, or operated by the West Virginia Division of Highways.

(2) The board of a public service district with at least 4,500 customers and annual combined gross revenue of $3 million providing water or sewer service separately or in combination may make, enact, and enforce all needful rules in connection with the enactment or amendment of rates, fees, and charges of the district. At a minimum, these rules shall provide for:

(A) Adequate prior public notice of the contemplated rates, fees, and charges by causing a notice of intent to effect such a change to be provided to the customers of the district for the month immediately preceding the month in which the contemplated change is to be considered at a hearing by the board. The notice shall include a statement that a change in rates, fees, and charges is being considered, the time, date, and location of the hearing of the board at which the change will be considered and that the proposed rates, fees, and charges are on file at the office of the district for review during regular business hours. The notice shall be printed on, or mailed with, the monthly billing statement, or provided in a separate mailing.

(B) Adequate prior public notice of the contemplated rates, fees, and charges by causing to be published, after the first reading and approval of a resolution of the board considering the revised rates, fees, and charges but not less than one week prior to the public hearing of the board on the resolution, as a Class I legal advertisement, of the proposed action, in compliance with the provisions of §59-3-1 et seq. of this code. The publication area for publication shall be all territory served by the district. If the district provides service in more than one county, publication shall be made in a newspaper of general circulation in each county that the district provides service.

(C) The public notice of the proposed action shall summarize the current rates, fees, and charges and the proposed changes to said rates, fees, and charges; the date, time, and place of the public hearing on the resolution approving the revised rates, fees, and charges and the place or places within the district where the proposed resolution approving the revised rates, fees, and charges may be inspected by the public. A reasonable number of copies of the proposed resolution shall be kept at the place or places and be made available for public inspection. The notice shall also advise that interested parties may appear at the public hearing before the board and be heard with respect to the proposed revised rates, fees, and charges.

(D) The resolution proposing the revised rates, fees, and charges shall be read at two meetings of the board with at least two weeks intervening between each meeting. The public hearing may be conducted by the board prior to, or at, the meeting at which the resolution is considered for adoption on the second reading.

(E) Rates, fees, and charges approved by resolution of the board shall be forwarded in writing to the county commission with the authority to appoint the members of the board. The county commission shall publish notice of the proposed revised rates, fees, and charges by a Class I legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code. Within 45 days of receipt of the proposed rates, fees, and charges, the county commission shall take action to approve, modify, or reject the proposed rates, fees, and charges, in its sole discretion. If, after 45 days, the county commission has not taken final action to approve, modify, or reject the proposed rates, fees, and charges, as presented to the county commission, shall be effective with no further action by the board or county commission. In any event, this 45-day period shall be mandatory unless extended by the official action of both the board proposing the rates, fees, and charges, and the appointing county commission.

(F) Enactment of the proposed or modified rates, fees, and charges shall follow an affirmative vote by the county commission and shall be effective no sooner than 45 days following action. The 45-day waiting period may be waived by public vote of the county commission only if the commission finds and declares the district to be in financial distress such that the 45-day waiting period would be detrimental to the ability of the district to deliver continued and compliant public services.

(G) The public service district, or a customer aggrieved by the changed rates or charges who presents to the circuit court a petition signed by at least 750 customers or 25 percent of the customers served by the public service district, whichever is fewer, when dissatisfied by the approval, modification, or rejection by the county commission of the proposed rates, fees, and charges under the provisions of this subdivision may file a complaint regarding the rates, fees, and charges resulting from the action of, or failure to act by, the county commission in the circuit court of the county in which the county commission sits: Provided, That any complaint or petition filed hereunder shall be filed within 30 days of the county commission’s final action approving, modifying, or rejecting the rates, fees, and charges, or the expiration of the 45-day period from the receipt by the county commission, in writing, of the rates, fees, and charges approved by resolution of the board, without final action by the county commission to approve, modify, or reject the rates, fees, and charges, and the circuit court shall resolve the complaint: Provided, however, That the rates, fees, and charges so fixed by the county commission, or those adopted by the district upon which the county commission failed to act, shall remain in full force and effect, until set aside, altered, or amended by the circuit court in an order to be followed in the future.

(3) Where water, sewer, stormwater, or gas services, or any combination thereof, are all furnished to any premises, the schedule of charges may be billed as a single amount for the aggregate of the charges. The board shall require all users of services and facilities furnished by the district to designate on every application for service whether the applicant is a tenant or an owner of the premises to be served. If the applicant is a tenant, he or she shall state the name and address of the owner or owners of the premises to be served by the district. Notwithstanding the provisions of §24-3-8 of this code to the contrary, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage of the applicant’s specific customer class or $50 with the district to secure the payment of service rates, fees, and charges in the event they become delinquent as provided in this section. If a district provides both water and sewer service, all new applicants for service shall deposit the greater of a sum equal to two twelfths of the average annual usage for water service or $50 and the greater of a sum equal to two twelfths of the average annual usage for wastewater service of the applicant’s specific customer class or $50. In any case where a deposit is forfeited to pay service rates, fees, and charges which were delinquent at the time of disconnection or termination of service, no reconnection or reinstatement of service may be made by the district until another deposit equal to the greater of a sum equal to two twelfths of the average usage for the applicant’s specific customer class or $50 has been remitted to the district. After 12 months of prompt payment history, the district shall return the deposit to the customer or credit the customer’s account at a rate as the Public Service Commission may prescribe: Provided, That where the customer is a tenant, the district is not required to return the deposit until the time the tenant discontinues service with the district. Whenever any rates, fees, rentals, or charges for services or facilities furnished remain unpaid for a period of 20 days after the same become due and payable, the user of the services and facilities provided is delinquent and the user is liable at law until all rates, fees, and charges are fully paid. The board may, under reasonable rules promulgated by the Public Service Commission, shut off and discontinue water or gas services to all delinquent users of either water or gas facilities, or both, 10 days after the water or gas services become delinquent: Provided, however, That nothing contained within the rules of the Public Service Commission may be considered to require any agents or employees of the board to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill.

(b) If any publicly or privately owned utility, city, incorporated town, other municipal corporation or other public service district included within the district owns and operates separate water facilities, sewer facilities, or stormwater facilities, and the district owns and operates another kind of facility, either water or sewer, or both, as the case may be, then the district and the publicly or privately owned utility, city, incorporated town or other municipal corporation or other public service district shall covenant and contract with each other to shut off and discontinue the supplying of water service for the nonpayment of sewer or stormwater service fees and charges: Provided, That any contracts entered into by a public service district pursuant to this section shall be submitted to the Public Service Commission for approval. Any public service district which provides water and sewer service, water and stormwater service or water, sewer, and stormwater service has the right to terminate water service for delinquency in payment of water, sewer, or stormwater bills. Where one public service district is providing sewer service and another public service district or a municipality included within the boundaries of the sewer or stormwater district is providing water service and the district providing sewer or stormwater service experiences a delinquency in payment, the district or the municipality included within the boundaries of the sewer or stormwater district that is providing water service, upon the request of the district providing sewer or stormwater service to the delinquent account, shall terminate its water service to the customer having the delinquent sewer or stormwater account: Provided, however, That any termination of water service must comply with all rules and orders of the Public Service Commission: Provided further, That nothing contained within the rules of the Public Service Commission shall be deemed to require any agents or employees of the public service districts to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill.

(c) Any district furnishing sewer facilities within the district may require or may, by petition to the circuit court of the county in which the property is located, compel or may require the Bureau for Public Health to compel all owners, tenants, or occupants of any houses, dwellings, and buildings located near any sewer facilities where sewage will flow by gravity or be transported by other methods approved by the Bureau for Public Health, including, but not limited to, vacuum and pressure systems, approved under the provisions of §16-1-9 of this code, from the houses, dwellings, or buildings into the sewer facilities, to connect with and use the sewer facilities and to cease the use of all other means for the collection, treatment, and disposal of sewage and waste matters from the houses, dwellings, and buildings where there is gravity flow or transportation by any other methods approved by the Bureau for Public Health, including, but not limited to, vacuum and pressure systems, approved under the provisions of §16-1-9 of this code and the houses, dwellings, and buildings can be adequately served by the sewer facilities of the district and it is declared that the mandatory use of the sewer facilities provided for in this subsection is necessary and essential for the health and welfare of the inhabitants and residents of the districts and of the state. If the public service district requires the property owner to connect with the sewer facilities even when sewage from dwellings may not flow to the main line by gravity and the property owner incurs costs for any changes in the existing dwellings’ exterior plumbing in order to connect to the main sewer line, the public service district board shall authorize the district to pay all reasonable costs for the changes in the exterior plumbing, including, but not limited to, installation, operation, maintenance, and purchase of a pump or any other method approved by the Bureau for Public Health. Maintenance and operation costs for the extra installation should be reflected in the users charge for approval of the Public Service Commission. The circuit court shall adjudicate the merits of the petition by summary hearing to be held not later than 30 days after service of petition to the appropriate owners, tenants, or occupants.

(d) Whenever any district has made available sewer facilities to any owner, tenant, or occupant of any house, dwelling, or building located near the sewer facility and the engineer for the district has certified that the sewer facilities are available to and are adequate to serve the owner, tenant, or occupant and sewage will flow by gravity or be transported by other methods approved by the Bureau for Public Health from the house, dwelling, or building into the sewer facilities, the district may charge, and the owner, tenant, or occupant shall pay, the rates and charges for services established under this article only after 30 days’ notice of the availability of the facilities has been received by the owner, tenant, or occupant. Rates and charges for sewage services shall be based upon actual water consumption or the average monthly water consumption based upon the owner’s, tenant’s, or occupant’s specific customer class.

(e) The owner, tenant, or occupant of any real property may be determined and declared to be served by a stormwater system only after each of the following conditions is met: (1) The district has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community, as defined in 40 C. F. R. §122.26; (2) the district’s authority has been properly expanded to operate and maintain a stormwater system; (3) the district has made available a stormwater system where stormwater from the real property affects or drains into the stormwater system; and (4) the real property is located in the Municipal Separate Storm Sewer System’s designated service area. It is further hereby found, determined, and declared that the mandatory use of the stormwater system is necessary and essential for the health and welfare of the inhabitants and residents of the district and of the state. The district may charge and the owner, tenant, or occupant shall pay the rates, fees, and charges for stormwater services established under this article only after 30 days’ notice of the availability of the stormwater system has been received by the owner. An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant.

(f) All delinquent fees, rates, and charges of the district for either water facilities, sewer facilities, gas facilities, or stormwater systems or stormwater management programs are liens on the premises served of equal dignity, rank, and priority with the lien on the premises of state, county, school, and municipal taxes. Nothing contained within the rules of the Public Service Commission may require agents or employees of the public service districts to accept payment at the customer’s premises in lieu of discontinuing service for a delinquent bill. In addition to the other remedies provided in this section, public service districts are granted a deferral of filing fees or other fees and costs incidental to the bringing and maintenance of an action in magistrate court for the collection of delinquent water, sewer, stormwater, or gas bills. If the district collects the delinquent account, plus reasonable costs, from its customer or other responsible party, the district shall pay to the magistrate the normal filing fee and reasonable costs which were previously deferred. In addition, each public service district may exchange with other public service districts a list of delinquent accounts: Provided, That an owner of real property may not be held liable for the delinquent rates or charges for services or facilities of a tenant, nor may any lien attach to real property for the reason of delinquent rates or charges for services or facilities of a tenant of the real property unless the owner has contracted directly with the public service district to purchase the services or facilities.

(g) Anything in this section to the contrary notwithstanding, any establishment, as defined in §22-11-3 of this code, now or hereafter operating its own sewage disposal system pursuant to a permit issued by the Department of Environmental Protection, as prescribed by §22-11-11 of this code, is exempt from the provisions of this section.

(h) Notwithstanding any code provision to the contrary, a public service district may accept payment for all fees and charges due, in the form of a payment by a credit or check card transaction or a direct withdrawal from a bank account. The public service district may set a fee to be added to each transaction equal to the charge paid by the public service district for use of the credit or check card or direct withdrawal by the payor. The amount of the fee shall be disclosed to the payor prior to the transaction and no other fees for the use of a credit or check card or direct withdrawal may be imposed upon the payor and the whole of the charge or convenience fee shall be borne by the payor: Provided, That to the extent a public service district desires to accept payments in the forms described in this subsection and does not have access to the equipment or receive the services necessary to do so, the public service district shall first obtain three bids for services and equipment necessary to affect the forms of transactions described in this subsection and use the lowest qualified bid received. Acceptance of a credit or check card or direct withdrawal as a form of payment shall comport with the rules and requirements set forth by the credit or check card provider or banking institution.

§16-13A-9a. Limitations with respect to foreclosure.

No public service district shall foreclose upon the premises served by such district for delinquent fees, rates or charges for which a lien is authorized by sections nine or nineteen of this article except through the bringing and maintenance of a civil action for such purpose brought in the circuit court of the county wherein the district lies. In every such action, the court shall be required to make a finding based upon the evidence and facts presented that the district prior to the bringing of such action had exhausted all other remedies for the collection of debts with respect to such delinquencies. In no event shall foreclosure procedures be instituted by any such district or on its behalf unless such delinquency had been in existence or continued for a period of two years from the date of the first such delinquency for which foreclosure is being sought.

§16-13A-10. Budget.

The board shall establish the beginning and ending of its fiscal year, which period shall constitute its budget year, and at least thirty days prior to the beginning of the first full fiscal year after the creation of the district and annually thereafter the general manager shall prepare and submit to the board a tentative budget which shall include all operation and maintenance expenses, payments to a capital replacement account and bond payment schedules for the ensuing fiscal year. Such tentative budget shall be considered by the board, and, subject to any revisions or amendments that may be determined by the board, shall be adopted as the budget for the ensuing fiscal year. Upon adoption of the budget, a copy of the budget shall be forwarded to the county commission. No expenditures for operation and maintenance expenses in excess of the budget shall be made during such fiscal year unless unanimously authorized and directed by the board.

§16-13A-11. Accounts; audit.

The general manager, under direction of the board, shall install and maintain a proper system of accounts, in accordance with all rules, regulations or orders pertaining thereto by the Public Service Commission, showing receipts from operation and application of the same, and the board shall at least once a year cause such accounts to be properly audited: Provided, That such audit may be any audit by an independent public accountant completed within one year of the time required for the submission of the report: Provided, however, That if the district is required to have its books, records and accounts audited annually by an independent certified public accountant as a result of any covenant in any board resolution or bond instrument, a copy of such audit may be submitted in satisfaction of the requirements of this section, and is hereby found, declared and determined to be sufficient to satisfy the requirements of article nine, chapter six of this code pertaining to the annual audit report by the state tax commission. A copy of the audit shall be forwarded within thirty days of submission to the county commission and to the Public Service Commission.

The treasurer of each public service district shall keep and preserve all financial records of the public service district for ten years, and shall at all times have such records readily available for public inspection. At the end of his term of office, the treasurer of each public service district shall promptly deliver all financial records of the public service district to his successor in office. Any treasurer of a public service district who knowingly or willfully violates any provision of this section is guilty of a misdemeanor and, shall be fined not less than $100 nor more than $500 or imprisoned in the county jail not more than ten days, or both.

§16-13A-12. Disbursement of district funds.

No money may be paid out by a district except upon an order signed by the chairman and secretary of such board, or such other person or persons authorized by the chairman or secretary, as the case may be, to sign such orders on their behalf. Each order for the payment of money shall specify the purposes for which the amount thereof is to be paid, with sufficient clearness to indicate the purpose for which the order is issued, and there shall be endorsed thereon the name of the particular fund out of which it is payable and it shall be payable from the fund constituted for such purpose, and no other. All such orders shall be reflected in the minutes of the next meeting of the board.

§16-13A-13. Revenue bonds.

For constructing or acquiring any public service properties for the authorized purposes of the district, or necessary or incidental thereto, and for constructing improvements and extensions thereto, and also for reimbursing or paying the costs and expenses of creating the district, the board of any such district is hereby authorized to borrow money from time to time and in evidence thereof issue the bonds of such district, payable solely from the revenues derived from the operation of the public service properties under control of the district. Such bonds may be issued in one or more series, may bear such date or dates, may mature at such time or times not exceeding forty years from their respective dates, may bear interest at such rate or rates not exceeding eighteen percent per annum payable at such times, may be in such form, may carry such registration privileges, may be executed in such manner, may be payable at such place or places, may be subject to such terms of redemption with or without premium, may be declared or become due before maturity date thereof, may be authenticated in any manner, and upon compliance with such conditions, and may contain such terms and covenants as may be provided by resolution or resolutions of the board. Notwithstanding the form or tenor thereof, and in the absence of any express recital on the face thereof, that the bond is nonnegotiable, all such bonds shall be, and shall be treated as, negotiable instruments for all purposes. Bonds bearing the signatures of officers in office on the date of the signing thereof shall be valid and binding for all purposes notwithstanding that before the delivery thereof any or all of the persons whose signatures appear thereon shall have ceased to be such officers. Notwithstanding the requirements or provisions of any other law, any such bonds may be negotiated or sold in such manner and at such time or times as is found by the board to be most advantageous, and all such bonds may be sold at such price that the interest cost of the proceeds therefrom does not exceed nineteen percent per annum, based on the average maturity of such bonds and computed according to standard tables of bond values. Any resolution or resolutions providing for the issuance of such bonds may contain such covenants and restrictions upon the issuance of additional bonds thereafter as may be deemed necessary or advisable for the assurance of the payment of the bonds thereby authorized.

§16-13A-14. Items included in cost of properties.

The cost of any public service properties acquired under the provisions of this article shall be deemed to include the cost of the acquisition or construction thereof, the cost of all property rights, easements and franchises deemed necessary or convenient therefor and for the improvements and extensions thereto; for stormwater systems and associated stormwater management programs, those activities which include, but are not limited to, water quality improvement activities necessary to comply with all federal and state requirements; interest upon bonds prior to and during construction or acquisition and for six months after completion of construction or of acquisition of the improvements and extensions; engineering, fiscal agents and legal expenses; expenses for estimates of cost and of revenues, expenses for plans, specifications and surveys; other expenses necessary or incident to determining the feasibility or practicability of the enterprise, administrative expense, and such other expenses as may be necessary or incident to the financing herein authorized, and the construction or acquisition of the properties and the placing of same in operation, and the performance of the things herein required or permitted, in connection with any thereof.

§16-13A-15. Bonds may be secured by trust indenture.

In the discretion and at the option of the board such bonds may be secured by a trust indenture by and between the district and a corporate trustee, which may be a trust company or bank having powers of a trust company within or without the State of West Virginia, but no such trust indenture shall convey, mortgage or create any lien upon the public service properties or any part thereof. The resolution authorizing the bonds and fixing the details thereof may provide that such trust indenture may contain such provisions for protecting and enforcing the rights and remedies of bondholders as may be reasonable and proper, not in violation of law, including covenants setting forth the duties of the district and the members of its board and officers in relation to the construction or acquisition of public service properties and the improvement, extension, operation, repair, maintenance and insurance thereof, and the custody, safeguarding and application of all moneys, and may provide that all or any part of the construction work shall be contracted for, constructed and paid for, under the supervision and approval of consulting engineers employed or designated by the board and satisfactory to the original bond purchasers, their successors, assignees or nominees, who may be given the right to require the security given by contractors and by any depository of the proceeds of bonds or revenues of the public service properties or other money pertaining thereto be satisfactory to such purchasers, their successors, assignees or nominees. Such indenture may set forth the rights and remedies of the bondholders and such trustee.

§16-13A-16. Sinking fund for revenue bonds.

At or before the time of the issuance of any bonds under this article the board shall by resolution or in the trust indenture provide for the creation of a sinking fund and for monthly payments into such fund from the revenues of the public service properties operated by the district such sums in excess of the cost of maintenance and operation of such properties as will be sufficient to pay the accruing interest and retire the bonds at or before the time each will respectively become due and to establish and maintain reserves therefor. All sums which are or should be, in accordance with such provisions, paid into such sinking fund shall be used solely for payment of interest and for the retirement of such bonds at or prior to maturity as may be provided or required by such resolutions.

§16-13A-17. Collection, etc., of revenues and enforcement of covenants; default; suit, etc., by bondholder or trustee to compel performance of duties; appointment and powers of receiver.

The board of any such district shall have power to insert enforceable provisions in any resolution authorizing the issuance of bonds relating to the collection, custody and application of revenues of the district from the operation of the public service properties under its control and to the enforcement of the covenants and undertakings of the district. In the event there shall be default in the sinking fund provisions aforesaid or in the payment of the principal or interest on any of such bonds or, in the event the district or its board or any of its officers, agents or employees, shall fail or refuse to comply with the provisions of this article, or shall default in any covenant or agreement made with respect to the issuance of such bonds or offered as security therefor, then any holder or holders of such bonds and any such trustee under the trust indenture, if there be one, shall have the right by suit, action, mandamus or other proceeding instituted in the circuit court for the county or any of the counties wherein the district extends, or in any other court of competent jurisdiction, to enforce and compel performance of all duties required by this article or undertaken by the district in connection with the issuance of such bonds, and upon application of any such holder or holders, or such trustee, such court shall, upon proof of such defaults, appoint a receiver for the affairs of the district and its properties, which receive so appointed shall forthwith directly, or by his agents and attorneys, enter into and upon and take possession of the affairs of the district and each and every part thereof, and hold, use, operate, manage and control the same, and in the name of the district exercise all of the rights and powers of such district as shall be deemed expedient, and such receiver shall have power and authority to collect and receive all revenues and apply same in such manner as the court shall direct. Whenever the default causing the appointment of such receiver shall have been cleared and fully discharged and all other defaults shall have been cured, the court may in its discretion and after such notice and hearing as it deems reasonable and proper direct the receiver to surrender possession of the affairs of the district to its board. Such receiver so appointed shall have no power to sell, assign, mortgage, or otherwise dispose of any assets of the district except as hereinbefore provided.

§16-13A-18. Operating contracts.

The board may enter into contracts or agreements with any persons, firms or corporations for the operation and management of the public service properties within the district, or any part thereof, for such period of time and under such terms and conditions as shall be agreed upon between the board and such persons, firms or corporations. The board shall have power to provide in the resolution authorizing the issuance of bonds, or in any trust indenture securing such bonds, that such contracts or agreements shall be valid and binding upon the district as long as any of said bonds, or interest thereon, are outstanding and unpaid.

§16-13A-18a. . Sale, lease or rental of water, sewer, stormwater or gas system by district; distribution of proceeds.

In any case where a public service district owns a water, sewer, stormwater or gas system, and a majority of not less than sixty percent of the members of the public service board thereof deem it for the best interests of the district to sell, lease or rent such water, sewer, stormwater or gas system to any municipality or privately-owned water, sewer, stormwater or gas system, or to any water, sewer, stormwater or gas system owned by an adjacent public service district, the board may so sell, lease or rent such water, sewer, stormwater or gas system upon such terms and conditions as said board, in its discretion, considers in the best interests of the district: Provided, That such sale, leasing or rental may be made only upon: (1) The publication of notice of a hearing before the board of the public service district, as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in a newspaper published and of general circulation in the county or counties wherein the district is located, such publication to be made not earlier than twenty days and not later than seven days prior to the hearing; (2) approval by the county commission or commissions of the county or counties in which the district operates; and (3) approval by the Public Service Commission of West Virginia.

In the event of any such sale, the proceeds thereof, if any, remaining after payment of all outstanding bonds and other obligations of the district, shall be ratably distributed to any persons who have made contributions in aid of construction of such water, sewer, stormwater or gas system, such distribution not to exceed the actual amount of any such contribution, without interest, and any balance of funds thereafter remaining shall be paid to the county commission of the county in which the major portion of such water, sewer, stormwater or gas system is located to be placed in the general funds of such county commission: Provided, That no such distribution shall be required in the case of a sale between political subdivisions of the state.

§16-13A-19. Statutory mortgage lien created; foreclosure thereof.

There shall be and is hereby created a statutory mortgage lien upon such public service properties of the district, which shall exist in favor of the holders of bonds hereby authorized to be issued, and each of them, and the coupons attached to said bonds, and such public service properties shall remain subject to such statutory mortgage lien until payment in full of all principal of and interest on such bonds. Any holder of such bonds, of any coupons attached thereto, may, either at law or in equity, enforce said statutory mortgage lien conferred hereby and upon default in the payment of the principal of or interest on said bonds, may foreclose such statutory mortgage lien in the manner now provided by the laws of the State of West Virginia for the foreclosure of mortgages on real property.

§16-13A-20. Refunding revenue bonds.

The board of any district having issued bonds under the provisions of this article is hereby empowered thereafter by resolution to issue refunding bonds of such district for the purpose of retiring or refinancing such outstanding bonds, together with any unpaid interest thereon and redemption premium thereunto appertaining and all of the provisions of this article relating to the issuance, security and payment of bonds shall be applicable to such refunding bonds, subject, however, to the provisions of the proceedings which authorized the issuance of the bonds to be so refunded.

§16-13A-21. Complete authority of article; liberal construction; district to be public instrumentality; tax exemption.

This article is full and complete authority for the creation of public service districts and for carrying out the powers and duties of same as herein provided. The provisions of this article shall be liberally construed to accomplish its purpose and no procedure or proceedings, notices, consents or approvals, are required in connection therewith except as may be prescribed by this article: Provided, That all functions, powers and duties of the Public Service Commission of West Virginia, the bureau of public health, the Division of Environmental Protection and the environmental quality board remain unaffected by this article. Every district organized, consolidated, merged or expanded under this article is a public instrumentality created and functioning in the interest and for the benefit of the public, and its property and income and any bonds issued by it are exempt from taxation by the State of West Virginia, and the other taxing bodies of the state: Provided, however, That the board of any such district may use and apply any of its available revenues and income for the payment of what such board determines to be tax or license fee equivalents to any local taxing body and in any proceedings for the issuance of bonds of such district may reserve the right to annually pay a fixed or computable sum to such taxing bodies as such tax or license fee equivalent.

§16-13A-22. Validation of prior acts and proceedings of county courts for creation of districts, inclusion of additional territory, and appointment of members of district boards.

All acts and proceedings taken by any county court of this state purporting to have been carried out under the provisions of this article which have been taken, prior to the date this section takes effect, for the purpose of creating public service districts or for the purpose of subsequent inclusion of additional territory to existing public service districts, after notice published by any such county court having territorial jurisdiction thereof of its intention to include such additional territory after hearing thereon, are hereby validated, ratified, approved and confirmed notwithstanding any other lack of power (other than Constitutional) of any such county court to create such public service districts or to include additional territory to existing public service districts or irregularities (other than Constitutional) in such proceedings, relating to the appointment and qualification of more than three members to the board of any such public service district or the subsequent appointment of successors of any or all of such members, notwithstanding that no city, incorporated town or other municipal corporation having a population in excess of three thousand is included within the district, and the appointment and qualification of such members, and further including any irregularities in the petition for the creation of any public service district, irregularities in the description of the area embraced by such district, and irregularities in the notice and publication of notice for the hearing creating such district, prior to the date this section takes effect, is hereby validated, ratified, approved and confirmed; and, further, in such cases where more than three members of the board of such districts have been so appointed prior to the date this section takes effect then such county court shall appoint, and they are hereby authorized and empowered to appoint, successors to such members in the manner as otherwise provided by this article.

§16-13A-23. Validation of acts and proceedings of public service boards.

All acts and proceedings taken by any public service board the members of which were appointed, prior to the date this section takes effect, by any county court of this state having territorial jurisdiction thereof, are hereby validated, ratified, approved and confirmed, as to defects and irregularities which may otherwise exist on account of their appointment and qualification: Provided, however, That nothing herein contained shall be construed to excuse a criminal act.

§16-13A-24. Acceptance of loans, grants or temporary advances.

Any public service district created pursuant to the provisions of this article is authorized and empowered to accept loans or grants and procure loans or temporary advances evidenced by notes or other negotiable instruments issued in the manner, and subject to the privileges and limitations, set forth with respect to bonds authorized to be issued under the provisions of this article, for the purpose of paying part or all of the cost of construction or acquisition of water systems, sewage systems, stormwater systems or stormwater management systems or gas facilities, or all of these, and the other purposes herein authorized, from any authorized agency or from the United States of America or any federal or public agency or department of the United States or any private agency, corporation or individual, which loans or temporary advances, including the interest thereon, may be repaid out of the proceeds of the bonds authorized to be issued under the provisions of this article, the revenues of the said water system, sewage system, stormwater system or associated stormwater management system or gas facilities, or grants to the public service district from any authorized agency or from the United States of America or any federal or public agency or department of the United States or from any private agency, corporation or individual or from any combination of such sources of payment, and to enter into the necessary contracts and agreements to carry out the purposes hereof with any authorized agency or the United States of America or any federal or public agency or department of the United States, or with any private agency, corporation or individual. Any other provisions of this article to the contrary notwithstanding, interest on any such loans or temporary advances may be paid from the proceeds thereof until the maturity of such notes or other negotiable instrument.

§16-13A-25. Borrowing and bond issuance; procedure.

A public service district has plenary power to borrow money, enter into contracts for the provision of engineering, design or feasibility studies, issue or contract to issue revenue bonds or exercise any of the powers conferred by the provisions of section thirteen, twenty or twenty-four of this article. Upon written request of the public service board contemplating such transaction or project, the Public Service Commission shall provide technical support to the public service board, including, but not limited to, engineering, design and financial analysis of the proposed transaction or project.

§16-13B-1. Short title.

This article shall be known and may be cited as the "West Virginia Community Improvement Act."

§16-13B-2. Definitions.

For purposes of this article:

(a) "Assessment certificate" means a certificate issued by a board pursuant to section fifteen of this article to evidence an assessment levied against property abutting a wastewater or water project, or on which a flood relief project is completed or protects.

(b) "Assessment district" means a community improvement assessment district created by a governing body pursuant to section seven of this article.

(c) "Assessment fee" means the fee paid by a person or governmental agency owning property located within an assessment district, based on the assessment levied against the property pursuant to section ten of this article, to pay for the cost of a project abutting, constructed upon or protecting such property.

(d) "Board" means the community improvement board of each assessment district provided under section eight of this article.

(e) "Code" means the Code of West Virginia, 1931, as amended.

(f) "Cost" means, as applied to each wastewater, water or flood relief project financed, in whole or in part, with the proceeds from assessment certificates, all costs and expenses incurred by a county or municipality, and the respective assessment districts created under this article, that are reasonable and necessary for the planning, development, construction and carrying out of all works and undertakings necessary or incident to the completion of a project, including, without limitation, the cost and expense of all labor, work, supervision, inspection, equipment leased and materials furnished and used in completing the project, any interest charged on funds borrowed to finance the construction of a project, advertising expenses, and any engineering, legal, surveying, accounting or other professional fees incurred in connection with or otherwise relating to a project.

(g) "Flood relief project" means a project involving one or more of the following activities: (1) The moving, removing, renovating, relocation or demolition of, or any other actions taken to provide protection from flooding to, one or more buildings, structures and other permanent improvements located on property owned by any person, which the governing body of the county or municipality in which the project is completed, or any other governmental agency, has determined is within an area threatened by flooding; or (2) the acquisition of property which is located outside of an area threatened by flooding to serve as a site on which one or more buildings, structures and other permanent improvements which are located within an area that is threatened by flooding may be relocated, or on which new buildings, structures and other permanent improvements may be constructed, and the construction of such new buildings, structures and improvements if relocating existing buildings, structures and improvements is not feasible; or (3) the construction of levies or stream channel improvements to provide flood protection to specifically identified lots or parcels of land located within an area which a governing body or other governmental agency has determined is threatened by flooding, all so as to protect the health and safety of persons residing or engaged in business on such threatened property and to eliminate or minimize the risk of damage caused by flooding to such buildings, structures and permanent improvements.

(h) "Governing body" means, in the case of a county, the county commission, and in the case of a municipality, the mayor and council together, the council, the board of directors or other board or body of any municipality, by whatever name called, as the case may be, charged with the responsibility of enacting ordinances and determining the public policy of such municipality.

(i) "Governmental agency" means the state government or any agency, department, division or unit thereof; counties; municipalities; any watershed improvement districts, soil conservation districts, sanitary districts, public service districts, drainage districts, urban renewal authorities or regional governmental authorities established pursuant to this code and any other governmental agency, entity, political subdivision, public corporation or agency having the authority to acquire, construct, maintain or operate wastewater facilities; the United States government or any agency, department, division or unit thereof; and any agency, commission or authority established pursuant to an interstate compact or agreement.

(j) "Municipality" means a municipality as defined in section two, article one, chapter eight of this code.

(k) "Person" means an individual, firm, partnership, corporation, voluntary association or any other type of entity.

(l) "Project" means a flood relief project, wastewater project, water project or any combination thereof.

(m) "Public way" means any street, alley, right-of-way, easement or other interest in real estate, or any portion or combination thereof, along or across which a wastewater or water project is constructed.

(n) "Public service commission" means the Public Service Commission established under article one, chapter twenty-four of this code.

(o) "Recorder" means the recorder, clerk or other municipal officer, by whatever name called, charged with the responsibility of keeping the journal of the proceedings of the governing body of the municipality and other municipal records.

(p) "Utility" means a public utility as defined in article one, chapter twenty-four of this code.

(q) "Wastewater project" means the planning, acquisition, construction, improvement or extension of new or existing sewer lines, pumps and related equipment and facilities, and any land, public ways or other interests in real estate, whether located within or outside of an assessment district, necessary or incident to the transportation of sewage, industrial wastes or other wastes, wastewater, and the residue thereof, from property located within an assessment district to a wastewater facility located within or outside of an assessment district.

(r) "Wastewater facility" means all facilities used for or in connection with treating, neutralizing, disposing of, stabilizing, cooling, segregating or holding wastewater, including, without limitation, facilities for the treatment and disposal of sewage, industrial wastes or other wastes, wastewater, and the residue thereof, facilities for the temporary or permanent impoundment of wastewater, both surface and underground; and sanitary sewers or other collection systems, whether on the surface or underground, designed to transport wastewater together with the equipment and furnishings thereof and their appurtenances and systems, whether on the surface or underground including force mains and pumping facilities therefor.

(s) "Water project" means the planning, acquisition, construction, improvement or extension of water lines, pumps and related equipment and facilities, and any land, public ways or other interests in real estate, whether located within or outside of an assessment district, necessary or incident to the transportation and distribution of water from a water facility located within or outside of an assessment district to property located within an assessment district, all for the purpose of providing potable, sanitary water suitable for human consumption and use.

(t) "Water facility" means all facilities, land and equipment used for or in connection with the collection of water, both surface and underground, transportation of water, treatment of water and distribution of water all for the purpose of providing potable, sanitary water suitable for human consumption and use.

§16-13B-3. Power and authority of counties and municipalities relating to flood relief, wastewater and water projects.

(a) Every county and municipality is hereby empowered and authorized, in addition to any other rights, powers and authority conferred upon it elsewhere in this code, to:

(1) Create, modify and expand assessment districts in the manner hereinafter set forth in such county or municipality, and to develop, construct, extend or improve, or assist in the development, construction, extension or improvement of, a project located in such county or municipality;

(2) Acquire, by purchase, lease, right of eminent domain, gift or otherwise, such lands, public ways and other interests in real estate, or any other property, as may be necessary or incident to the completion of a project, and to convey such real estate and other property to an assessment district;

(3) Appoint the members of the community improvement board for each assessment district created by it hereunder;

(4) Enter into agreements with any person or governmental agency necessary or incident to the development, planning, construction or improvement of a project, or for the operation, maintenance or disposition of a project or for any other services required by a project;

(5) Expend funds to acquire, or construct part of a project on, property located outside of an assessment district but within the boundaries of such county or municipality, as the case may be, and for any work undertaken thereon, as may be necessary or incident to the completion of a project;

(6) Enter into agreements with one or more counties or municipalities to plan, develop, construct or improve a project jointly;

(7) Merge two or more assessment districts into one assessment district: Provided, That all such districts are located within the boundaries of the county or municipality, as the case may be; and

(8) Take any and all other actions consistent with the purpose of this article and not in violation of the Constitution of this state, as may be necessary or incident to the construction and completion of a project.

(b) Unless agreed to by a municipality, the power and authority hereby conferred on a county shall not extend into territory within the boundaries of any municipality: Provided, That notwithstanding any provision in this code to the contrary, the power and authority hereby conferred on counties may extend within the territory of a public service district created under section two, article thirteen-a of this chapter.

§16-13B-4. Determination of need and feasibility of creating an assessment district.

(a) The governing body of any county or municipality, on its own motion or upon the receipt of a petition signed by at least twenty-five percent of the total number of persons owning property located within the boundaries of an area described in the petition, by metes and bounds or otherwise in a manner sufficient to describe the area, and which requests that the area be constituted as an assessment district in accordance with this article, may authorize and cause at any time, or from time to time, a study to be prepared to determine the necessity and economic feasibility of creating an assessment district for such area and of developing, constructing, extending or improving a project within such proposed assessment district. All such studies shall be prepared or reviewed under the supervision of a professional engineer or such other person or governmental agency charged by the governing body to prepare or review the study. The study shall describe the boundaries of the proposed assessment district and the nature of the project proposed therefore; list the names and address of all owner of property located within the proposed assessment district; set forth the necessity and economic feasibility of the project and the findings in support of such determinations; and also include plans, drawings and specifications with respect to the project, an estimate of the cost of the project and the amount of the assessments required to be levied against each lot or parcel of land located within the assessment district to pay for the cost of the project. The estimate shall specify the interest rate used in the calculation of the assessments and such other data as may be necessary for owners of property within the proposed assessment district to estimate the proportionate part of the cost of the project that may be assessed against their property.

(b) In the case of an assessment district created, in whole or in part, to construct a wastewater or water project, the study shall also identify the utility or governmental agency operating the wastewater or water facility, as the case may be, which would serve the assessment district upon completion of the project, and confirm that such wastewater or water facility has the capacity to serve the proposed project.

(c) In the case of an assessment district created, in whole or in part, to construct a flood relief project as defined in subparagraph (1) or (2), subsection (g), section two of this article, the study shall also set forth the minimum number of property owners who must elect to have the cost of the proposed project assessed against their property for the project to be economically feasible, and an estimate of the assessments which may be levied against the property owned by such persons if only the minimum number of property owners elect to have the project completed.

(d) After reviewing the study prepared pursuant to this section and considering alternative methods of financing the proposed project, the governing body may by order or ordinance determine the necessity and economic feasibility of creating an assessment district and developing, constructing, improving or extending a project therein. If the governing body determines that the creation of an assessment district and construction of the project is necessary and economically feasible, it shall set a date for the public meeting required under section five of this article and shall cause the study to be filed with the clerk of the county commission or the recorder of the municipality, as the case may be, and with the executive secretary of the Public Service Commission, and made available for inspection by interested persons before the hearing.

(e) In determining the necessity and economic feasibility of an assessment district and the construction of a project, the governing body may rely, in whole or in part, on studies or reports prepared by or for any other governmental agency.

§16-13B-5. Notice to property owners before creation of assessment district and construction of project; form of notice; affidavit of publication.

(a) Before the adoption or enactment of an order or ordinance creating an assessment district, the governing body shall cause notice to be given to the owners of property abutting a proposed wastewater or water project, or to the owners of property to be protected by a proposed flood relief project, that such ordinance or order will be considered for adoption or enactment, as the case may be, at a public meeting of the governing body at a date, time and place named in the notice and that all persons at that meeting, or any adjournment thereof, shall be given an opportunity to protest or be heard concerning the adoption, enactment or rejection of the order or ordinance. At or after the meeting the governing body may amend, revise or otherwise modify the plans, drawings and specifications for the assessment district and project as it may deem appropriate after taking into account any comments received at such meeting.

(b) The notice required in this section shall be published at least thirty days prior to the date of the meeting as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the county or municipality in which the proposed assessment district is located. The notice shall be in the form of, or substantially in the form of, the following notice:

"NOTICE TO ALL PERSONS OWNING PROPERTY LOCATED WITHIN ................... (here describe the boundaries of the proposed assessment district) IN THE ...................... (county or municipality) OF .............. (name of county or municipality):

A proposal has been made to the ............................ (county commission, city council or other governing body) of the ................ (county or municipality) of .............. (name of county or municipality) to establish a community improvement assessment district under chapter sixteen, article thirteen-b of the Code of West Virginia to permanently improve ................ (here describe the portion of the public ways both within and outside of the proposed assessment district to be improved, in the case of wastewater or water project, or the lots or parcels of land which may be protected, in the case of a flood relief project) in ................. (name of county or municipality) by ............... (here provide general description of the project) as the ................ (county commission, city council or other governing body) may deem proper, and to assess the total cost (or, if the assessments are only necessary to pay for part of the total cost, the approximate percentage of the total cost) of such improvement on ............ (in the case of a wastewater or water project, the property abutting said portion of the public ways within the proposed assessment district, or, in the case of a flood relief project, the lots or parcels of land on which the project may be constructed or may protect).

The proposal to create an assessment district and to make such improvements, and the plans, drawings, specifications and estimates therefor, will be considered by the ................... (county commission, city council or other governing body) at a public meeting to be held on the ....... day of ................, .................., at .......m. at ............................. Any owner of property who may be affected by the creation of the above-described assessment district, and any person whose property is not located within said assessment district but wishes his property to be included, will be given an opportunity to protest or be heard at said meeting or any adjournment thereof:

............................ (name of clerk or recorder)

.................................. (official position)."

(c) An affidavit of publication of the notice made by the newspaper publisher, or a person authorized to do so on behalf of such publisher, and a copy of the notice shall be made part of the minutes of the governing body and spread on its records of the meeting described in the notice. The service of said notice upon all persons owning any interest in any property located within the proposed assessment district shall conclusively be deemed to have been given upon the completion of such newspaper publication.

§16-13B-6. Petition of property owners for creation of assessment district.

(a) After the meeting described in section five of this article, and before the governing body may adopt or enact an order or ordinance creating an assessment district, the governing body shall receive, within ninety days after the meeting, a petition in writing of (1) persons owning, in the case of a wastewater or water project, or both, not less than sixty percent of the frontage of the lots abutting on both sides of that portion of the public way located within the proposed assessment district on which the wastewater or water project or any part thereof may be constructed; (2) in the case of a flood relief project as defined in subparagraph (1) or (2), subsection (g), section two of this article, such percentage of property owners as the governing body shall have previously determined is necessary for such project to be economically feasible; or (3) in the case of a flood relief project as defined in subparagraph (3), subsection (g), section two of this article, persons owning not less than sixty percent of the lots which may receive flood relief protection from such a project, in each case requesting the creation of the assessment district and the completion of the project according to the plans, drawings and specifications submitted at the meeting, and agreeing to have their property assessed with the total cost of the project (or, if the governing body has previously determined that the assessments are only necessary to pay for part of the total cost, agreeing to have their property assessed with that part of the cost). The governing body may prescribe the form of the petition as it may deem appropriate, and the petition shall be held at all times in the office of the county clerk or the recorder, as the case may be, and shall be open to the public for inspection and execution during the normal business hours of such office.

(b) Upon receipt of the petition required under subdivision (2), subsection (a) of this section, and before the governing body may adopt or enact an order or ordinance creating an assessment district, the governing body shall establish, solely in the case of a proposed flood relief project as defied in subparagraph (1) or (2), subsection (g), section two of this article, a period which may not be less than thirty days or more than sixty days, during which any owner of property to be affected thereby may elect not to have the project undertaken with respect to his property, in which event the project shall not be undertaken on such property and such property shall not be subject to any assessments thereafter levied or any lien created pursuant to this article. Such election shall be submitted in writing to the governing body prior to the expiration of the election period so established.

(c) The governing body shall provide notice of the election period required in subsection (b) of this section to those persons whose property may be affected by such flood relief projects and shall set forth in the notice the property owner's election rights with respect thereto and an estimate of the assessments which may be levied against each lot or parcel of land so affected, based on the number of persons who signed the petition described in subsection (a) of this section, and shall also set forth the minimum number of persons who must elect to have the project completed to make the project economically feasible and the assessments which may be levied if not more than the minimum number of persons so elect. The notice shall be published as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the assessment district. After the expiration of the election period, if the number of property owners not opting out of the flood relief project is less than the minimum number of property owners necessary for the project to be economically feasible, the governing body may, by ordinance or order, terminate any further actions concerning the proposed flood relief project and assessment district.

§16-13B-7. Receipt of petition of property owners; ordinance or order authorizing creation of assessment district and construction of project.

Upon receipt of the petition required under section six of this article and, solely in the case of a flood relief project as defined in subparagraph (1) or (2), subsection (g), section two of this article, not earlier than the expiration of the election period required under section six of this article, the governing body, by ordinance or order, may create a community improvement assessment district and shall set forth in such ordinance or order, as the case may be, the boundaries of the assessment district and authorize the completion of the project therein in accordance with the study described in section four of this article.

§16-13B-8. Assessment district to be a public corporation and political subdivision; powers thereof; community improvement boards.

(a) From and after the date of the adoption or enactment of the order or ordinance creating an assessment district, it shall thereafter be a public corporation and political subdivision of this state, but without any power to levy or collect ad valorem taxes. Each assessment district is hereby empowered and authorized, in addition to any other rights, powers and authorities conferred upon it in this article or elsewhere in this code, to:

(1) Acquire, own and hold, in its corporate name, by purchase, lease, right of eminent domain, gift or otherwise, such property, both real and personal, public ways and other interests in real estate, or any other property, whether tangible or intangible, as may be necessary or incident to the construction and completion of a project;

(2) Construct and complete one or more projects, and assess the cost of all or any portion of a project on abutting property located in the assessment district, in the case of a wastewater or water project, or on the property protected by a flood relief project;

(3) Sue or be sued;

(4) Establish a bank account or accounts in its name;

(5) Enter into agreements or other transactions with any person or governmental agency necessary or incident to the development, planning, construction or improvement of a project, or for the operation, maintenance or disposition of a project or for any other services required by a project;

(6) Provide grants to any person owning property abutting a wastewater or water project, or on which a flood relief project is undertaken, in consideration of the completion by such person of a portion of the work necessary or incident to the completion of the project;

(7) Expend funds to acquire, or construct part of a project on property located outside of an assessment district, and for any work undertaken thereon, as may be necessary or incident to the completion of a project;

(8) Enter into agreements with one or more counties, municipalities or assessment districts to plan, develop, construct or improve a project jointly;

(9) Accept appropriations, gifts, grants, bequests and devises, and use or dispose of the same to carry out its corporate purpose;

(10) Make and execute contracts, releases, assignments, compromises, and other instruments necessary or convenient for the exercise of its powers, or to carry out its corporate purpose;

(11) Have a seal and alter the same;

(12) Issue assessment certificates to carry out and effectuate the purpose of this article;

(13) Borrow money to carry out and effectuate the purpose of this article and to issue its notes as evidence of any such borrowing in such principal amounts and upon such terms as shall be necessary to provide sufficient funds for achieving its corporate powers;

(14) Obtain options to acquire real property, or any interest therein, by purchase, lease or otherwise, which is found by the board to be suitable as a site, or part of a site, for the construction of a project; and

(15) Take any and all other actions consistent with the purpose of this article and not in violation of the Constitution of this state, as may be necessary or incident to the construction and completion of a project.

(b) The powers of each assessment district shall be vested in and exercised by a community improvement board which shall be composed of five members, four of whom shall be appointed by the governing body of the county or municipality in which the assessment district is located, and one of whom shall be the sheriff of the county or the treasurer of the municipality (or such other person serving in an equivalent capacity if there is no treasurer), as the case may be, in which the assessment district is located. At least one member of the board shall be a professional engineer and at least three members of the board shall be residents of the assessment district. No more than three members of the board may be from the same political party.

(c) The provisions of this subsection apply to the four members appointed by the governing body. They shall be appointed for overlapping terms of four years each and until their respective successors have been appointed and have qualified, except for the original appointments. For the purpose of original appointments, one member shall be appointed for a term of four years and until his or her successor has been appointed and qualified; one member shall be appointed for a term of three years and until his or her successor has been appointed and qualified; one member shall be appointed for a term of two years and until his or her successor has been appointed and qualified; and one member shall be appointed for a term of one year and until his or her successor has been appointed and qualified. Members may be reappointed for any number of terms. Before entering upon the performance of his or her duties, each member shall take and subscribe to the oath required by section five, article four of the Constitution of this state. Vacancies shall be filled by appointment by the governing body of the county or municipality creating the assessment district for the unexpired term of the member whose office shall be vacant and such appointment shall be made within thirty days of the occurrence of such vacancy. Any such member may be removed by the governing body which appointed such member in case of incompetency, neglect of duty, gross immorality or malfeasance in office. Members shall not be entitled to any compensation for their services.

(d) The board shall organize within thirty days following the first appointments and annually thereafter at its first meeting after January 1, of each year by selecting one of its members to serve as chairman, one to serve as treasurer and one to serve as secretary. The secretary shall keep a record of all proceedings of the board which shall be available for inspection as other public records, and the treasurer shall maintain records of all financial matters relating to the assessment district, which shall also be available for inspection as other public records. Duplicate records shall be filed with the clerk or recorder, as the case may be, of the county or municipality which created the assessment district and shall include the minutes of all board meetings. The secretary and treasurer shall perform such other duties pertaining to the affairs of the assessment district as shall be prescribed by the board.

(e) The members of the board, and the chairman, secretary and treasurer thereof, shall make available to the governing body responsible for appointing the board, at all times, all of its books and records pertaining to the assessment district's operation, finances and affairs, for inspection and audit. The board shall meet at least monthly.

(f) A majority of the members of the board constitutes a quorum and meetings shall be held at the call of the chairman.

(g) Staff, office facilities and costs of operation of the board shall be provided by the county or municipality which created the assessment district.

(h) The chairman shall preside at all meetings of the board and may vote as any other members of the board, but if he should be absent from any meeting the remaining members may select a temporary chairman, and if the member selected as chairman resigns as such or ceases for any reason to be a member of the board, the board shall select one of its members as chairman to serve until the next annual organizational meeting.

(i) The board shall by resolution determine its own rules of procedure, fix the time and place of its meetings and the manner in which special meetings may be called. The members of the board shall not be personally liable or responsible for any obligations of the assessment district or the board but are answerable only for willful misconduct in the performance of their duties.

(j) The official name of an assessment district created under the provisions of this article may contain the name of the county or municipality, as the case may be, in which it is located.

(k) Notwithstanding any provision in this code to the contrary, the power and authority hereby conferred on assessment districts may extend within the territory of a public service district created under section two, article thirteen-a of this chapter.

§16-13B-9. Provisions for construction of a project.

(a) After the creation of an assessment district and the appointment of the board thereof, the board shall provide by resolution for the construction of the project, and shall also provide in the same or subsequent resolutions for the supervision of such work by a professional engineer, governmental agency or any other person designated by the board. The board may provide for the construction of the project by one of the two following methods, or any combination thereof:

(1) If there exists another governmental agency with the experience, knowledge and authority to construct the project, the board may elect to enter into a contract with such agency for the construction of all or part of the project or for any other service necessary or incident to the construction of the project, in which case such governmental agency shall be responsible for entering into contracts, subject to the board's approval, with such other persons as may be necessary or incident to the construction of the project; or

(2) The board may elect to enter into one or more contracts with such contractors and other persons as may be necessary or incident to the construction of the project, in which case it shall provide notice to the public and appropriate contractor associations of the general nature of the project, and shall designate in such notice the place where detailed plans, drawings and specifications of the project may be reviewed, and call for sealed proposals for construction of the project by a date not earlier than ten days after the last of such publications. Such notice shall be published as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the assessment district. All contracts for work on any project, the expense of which will exceed $500, shall be let to the lowest responsible bidder therefor, and the board may impose such conditions as it may deem necessary upon the bidders with regard to bond and surety, guaranteeing the good faith and responsibility of such bidders, and the faithful performance of such work according to contract, or for any other purpose. The board may reject any and all bids, and if it rejects all bids notices shall be published as originally required before any other bids may be received. The board may let portions of the work necessary to complete a project under different contracts.

(b) The resolution described in subsection (a) of this section shall also provide for payment of the cost of the project. The board shall provide in such resolution for the payment by (1) persons owning property abutting a wastewater or water project, in the case of such a project; (2) persons owning property on which a flood relief project, as defined in subparagraph (1) or (2), subsection (g), section two of this article, is constructed, in the case of such a project; or (3) persons owning property protected by a flood relief project, as defined in subparagraph (3), subsection (g), section two of this article, in the case of such a project, of the cost of the work in equal installments payable over a period of not less than five years nor more than ten years from the date of assessment, with interest payable from the date of assessment at such rate or rates as the board may determine are necessary or appropriate, and shall fix the number of installments in which the amounts assessed shall be payable: Provided, That upon failure of the owner of the property assessed to pay any installment as and when due, and if such default continues for sixty days after receipt of written notice of the default, then at the option of the holder of the assessment certificates applicable to such property, the entire balance due may be declared immediately due and payable and the holder of the certificates may forthwith proceed to enforce the collection thereof in accordance with this article. Delivery of notice of default shall be deemed complete upon the delivery of such notice by certified mail, return receipt requested, directed to the address of the property owner in default as shown on the face of the assessment certificate, or such other address provided in writing to the holder of the certificate subsequent to the issuance thereof.

§16-13B-10. Notice to property owners of assessments; hearings, correcting and laying assessments; report on project completion; permits.

(a) After the execution of an agreement or agreements for the construction of a project with another governmental agency or the acceptance by the board of a bid by one or more contractors as contemplated by section nine of this article, but prior to the commencement of construction, the board shall cause the engineer, governmental agency or person charged by the board with the supervision of the project, to prepare a report describing each lot or parcel of land abutting the project in the case of a wastewater or water project, or each lot or parcel on which a flood relief project shall be undertaken or shall protect in the case of such a project; and setting forth the total cost of the project based on the contract with the governmental agency, or the accepted bid or bids, and all other costs incurred prior to the commencement of construction, and the respective amounts chargeable upon each lot or parcel of land which may be assessed and the proper amount to be assessed against the respective lots or parcels of land in accordance with sections eleven and twelve of this article, with a description of the lots and parcels of land as to ownership, frontage and location. If two or more different kinds of projects are involved, the report shall set forth the portion of the assessment attributable to each respective project. The board shall thereupon give notice to the owners of property to be assessed that on or after a date specified in the notice an assessment may be levied against the property: Provided, That construction of a project shall not commence until the assessment district has laid all assessments on the property to be benefitted by the project and has issued all assessment certificates necessary to evidence the assessments in accordance with section fifteen of this article. The notice shall state that the owner of assessed property, or other interested party, may on said date appear before the board to move the revision or correction of the proposed assessment, and shall show the total cost of the project, whether the assessments will pay for all or part of the total cost of the project, and the lots or parcels of property to be assessed and the respective amounts to be assessed against such lots or parcels, with a description of the respective lots and parcels of land as to ownership, frontage and location. The notice shall be published as a Class II-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of the code, and the publication area for such publication is the assessment district. On or after the date so advertised, the board may revise, amend, correct and verify the report and proceed by resolution to lay the assessments as corrected and verified.

(b) Upon completion of a project, or the completion of that portion of a project that provides water, wastewater or flood protection benefits to the property subject to the assessments, the board shall cause the engineer or committee charged by the board with the supervision of the project, to prepare a final report certifying the completion of the project and showing the total cost of the project and whether the cost is greater or less than the cost originally estimated. If the total cost of the project is less or greater than the cost shown in the report prepared prior to construction, the board may revise the assessment charged on each lot or parcel of land pursuant to subsection (a) of this section to reflect the total cost of the project as completed, and in so doing shall, in the case of an assessment increase only, (1) follow the same procedure with regard to notice and providing each owner of assessed property the right to appear before the board to move for the revision or correction of such proposed reassessment as required for the original assessment, and (2) issue such additional assessment certificates as may be necessary to evidence the amount by which the assessment applicable to each lot or parcel of land has increased. If an assessment is decreased, the board shall, by resolution and written notice to the sheriff of the county in which the assessment district is located, cause the next installment or installments of assessment fees then due and payable by each affected property owner to be reduced pro rata, and shall provide written notice to such property owners of the amount of such decrease by the deposit of such notice in the United States mail, postage prepaid. In such cases the board shall also transmit to the sheriff an amount of funds equal to the difference between the cost of the project upon which the assessments were originally laid and the cost of the project as completed, and the sheriff shall disburse such funds to the holders of the assessment certificates issued in connection with the project on a pro rata basis.

(c) Prior to the construction of a project, the board shall obtain all permits and licenses required by law for the construction and operation of the project: Provided, That the board is not required to obtain a certificate of public convenience from the Public Service Commission under article two, chapter twenty-four of this code: Provided, however, That prior to the construction of each project, the board shall apply to the Public Service Commission for authorization enabling the construction and shall submit with said application any certificate required by the division of public health, any certification or permit required by the Division of Environmental Protection, the contract for utility service, if a utility will be involved, a copy of the utility's applicable, existing rate tariff, a copy of the order or ordinance creating the board and a certificate of a qualified professional engineer that the utility providing service has the capacity to provide or treat, as the case may be. The Public Service Commission shall render its final decision on any application filed under the provisions of this section within (i) ninety days in the case of a project serving twenty-five or fewer residential customers, or (ii) one hundred twenty days in the case projects serving commercial customers or more than twenty-five residential customers, following the submission of such application and all information herein required.

§16-13B-11. Construction of projects; assessments; corner lots, etc.

(a) Each board is hereby empowered and authorized to order and cause to be constructed, within its respective assessment district, any project for the benefit of said assessment district or any part thereof. Upon the completion of a project or any part thereof, (1) the property located within the assessment district abutting on a wastewater or water project or abutting upon that portion of a public way within the assessment district in which such wastewater or water project shall be constructed, or (2) the property protected by the flood relief project, may be charged by the assessment district in which the project is located with all or any part of the cost thereof, including the cost of such wastewater or water project across public ways. No lot or parcel of land abutting any portion of a project which is located outside of an assessment district shall be subject to any assessment unless and until the owner of such lot or parcel receives any services provided by the project, in which event such lot or parcel may be subject to assessment under section twenty of this article.

(b) Assessments made with respect to wastewater or water projects shall be subject to the restrictions set forth in this subsection and subsection (c) of this section. In case of a corner lot, or acreage which has not been divided into lots, frontage which may be assessed shall be measured along the longest dimension thereof abutting on each public way in which a wastewater or water project is constructed, but if the project is constructed on two or more sides then such corner lot, or acreage which has not been divided into lots, shall be charged only with the side on which the project is first completed unless such lot or acreage is two hundred feet or more in depth measured from such first side, in which event the corner lot, or acreage which has not been divided into lots, shall be charged only with the footage in excess of two hundred feet. Any lot, or any acreage which has not been divided into lots, having a depth of two hundred feet or more and abutting on two or more public ways, one on the front and one in the rear of said lot, or said acreage which has not been divided into lots, shall be assessed on both of said public ways, if a project is constructed on both such public ways. Where a corner lot, or any acreage which has not been divided into lots, has been assessed on both ends, it shall not be assessed on the side, and where it has been assessed on the side, it shall not be assessed on either end.

(c) In case of corner lots, or any acreage which has not been divided into lots, where the cost of a wastewater or water project along one dimension is not assessed against the owner thereof, and in the case of lots, or acreage, less than two hundred feet deep abutting at each end on a public way in which a project is completed, the cost of the project along the dimension or end not assessed against the property owner shall in every case be apportioned and assessed against the other property abutting on the public way within the assessment district being improved, in the manner of apportionment of the cost of improvements in intersections.

§16-13B-12. Apportionment and assessment of cost.

(a) The cost of a wastewater or water project, including the cost of all improvements at and within intersections and the cost attributable to any portion of the project located outside an assessment district, shall be apportioned to, and assessed against and borne by the properties abutting upon all public ways located within the assessment district, in or upon which the improvements involved in the project shall have been made. Each lot or parcel of land located within the assessment district so abutting shall be assessed, subject to the provisions of section eleven of this article respecting assessment for improvements of corner lots, acreage not divided into lots and lots or acreage improved on more than one side or end, with that portion of the cost of the entire project, located both within and outside the assessment district, which is represented by the proportion which the abutting frontage in feet of such lot or parcel of land bears to the total abutting frontage in feet of all the lots or parcels of land abutting on the public ways so improved within the assessment district: Provided, That if the character of the improvements shall be substantially different upon different public ways or portions thereof, the cost may be equitably apportioned to the respective public ways, or portions thereof, in proportion to the character and cost of the respective improvements thereon and the part of the cost so apportioned to each respective public way, or portion thereof, shall be apportioned to and assessed against the respective lots or parcels of land abutting thereupon in the proportion as hereinabove provided: Provided, however, That property shall be assessed only to the extent it is benefited and if there is any property abutting on the portion of the public way located within the assessment district, so improved which the board in the resolution authorizing the project has determined will not be specially benefited by the improvements, or will not be specially benefited to the full extent of the cost of the project, or for other reasons which would not be liable to assessment for any of, or for some part of, the cost of the project, then the cost of such project abutting such part of said public way, or so much thereof as is so determined to be nonassessable, shall be apportioned among, assessed against and borne by the remaining property abutting upon the public ways located within the assessment district, improved in proportion, subject to the aforesaid provisions of section eleven of this article, to the frontage of such remaining abutting property as hereinabove provided: Provided further, That if there be property abutting the public way located in the assessment district, so improved, which is owned by the United States of America, and, for that reason, not legally subject to assessment, then the county or municipality shall pay the proportionate part of the cost of the improvement which otherwise would be assessable against such federally owned property.

(b) Solely in the case of a flood relief project as defined in subparagraph (1) or (2), subsection (g), section two of this article, that portion of the cost of the project incurred in the preparation of the studies and reports required under this article prior to the construction of the project and all other costs relating to the development and planning of the project and which are incurred prior to the commencement of construction of the project and not in the actual construction of the project on or protecting one lot or parcel of land, shall be apportioned equally to each lot or parcel of land benefited and protected by the project, and all construction costs and any development costs incurred solely in completing a flood relief project benefiting and protecting a specific lot or parcel of land, shall be apportioned solely to such parcel or lot.

(c) Solely in the case of a flood relief project as defined in subparagraph (3), subsection (g), section two of this article, the cost of the project shall be apportioned pro rata to each lot or parcel of land benefited and protected by the project on which a house, building or other structure is situate, based on the ratio which the total square footage of protected space in such house, building or other structure bears to the total square footage of space in all houses, buildings and other structures located on property benefited and protected by the project.

(d) In apportioning the cost of any project to any lot or parcel of land in any circumstances not expressly covered in this article, the cost shall be apportioned equitably, as determined by the board, in keeping with the concepts and principles expressed in this article and the special benefit to the property in question from the improvements made.

§16-13B-13. Assessment against property of public, charitable, eleemosynary, educational or religious institutions; duty of those in charge to cause assessments to be paid.

When any of the lots or parcels of land within an assessment district abutting the portion of the public way improved by a wastewater or water project consist of property owned or controlled by this state, any municipality, county, Board of Education or other public body, or consist of property owned by, or used for, a church, or a religious, charitable, educational or eleemosynary institution, for purposes not subject to taxation, such property shall nevertheless be assessed with its proper proportion of the cost of said improvement, and it shall be the duty of those persons having charge of the fiscal affairs of such owner or the management of any such property or institution to make proper arrangements for the payment of, and cause to be paid, such assessments as and when due and payable.

§16-13B-14. Method of paying for cost of project; how assessments may be evidenced.

The board shall determine and provide in the resolution laying the assessments, adopted in accordance with section ten of this article, the method of financing the cost of a project, for the cost of which assessments are levied as in this article provided, and such method may include the receipt of gifts, grants from any governmental agency or appropriations from the county or municipality in which the assessment district is located, or borrowing funds from any person or governmental agency, or any combination thereof: Provided, That any funds borrowed by an assessment district, including any interest accruing thereon, shall be repaid solely from the proceeds of the assessment certificates issued pursuant to section fifteen of this article and from the assessments evidenced thereby.

§16-13B-15. Assessment certificates; assignments; designation of registrar for assessment certificates.

(a) All assessments levied under this article shall be evidenced by assessment certificates issued by the assessment district in accordance with this section. The board may issue assessment certificates to any person or governmental agency financing the cost of a project, and may also issue assessment certificates in the name of the assessment district, on behalf of itself or as agent for any other person or governmental agency. The board shall issue the assessment certificates as soon as practicable after it has determined the method of financing the cost of the project and laid the assessments against the property, as provided in section ten of this article. The assessment certificates shall evidence on their face the assessments applicable to the property for which each such certificate has been issued and each installment of principal and interest payable, and a copy of each assessment certificate shall be provided to the owner of the property against which the assessment evidenced by the assessment certificate has been laid. Each assessment certificate shall be issued in registered form and shall show on the face thereof the name and address of the owner of the property to which the assessment certificate applies, the name and address of the person serving as the registrar for such certificate in accordance with subsection (c) of this section, and the name and address of the person to whom the certificate is issued. Assessment certificates shall be signed by the chairman and secretary of the board of the assessment district issuing the certificates, shall refer to the resolution laying the assessments and shall show the amount and date of the assessment and describe the property against which the assessment is laid, describing the same as to ownership, amount, frontage (solely in case of a wastewater and water project) and briefly as to location, and the mailing address of the owner thereof. Assessment certificates shall also show the dates on which principal and interest payments are due, shall set forth that the payment of all such installments shall be made to the sheriff of the county in which the assessment district is located, as provided in section seventeen of this article, and shall contain a provision that in the event there is default in the payment of any one of such installments and such default continues for a period of sixty days after written notice of such default, then all unpaid installments shall become due and payable at the election of the certificate holder and the holder may proceed to collect all of the unpaid balances of installments, with interest until paid.

(b) Each assessment certificate issued under this article shall be enforceable by the holder thereof, and shall be assignable by endorsement and delivery of the certificate and upon delivery to the registrar of the assessment certificates of a written notice of such assignment executed by the assignor and assignee, each of whose signatures shall be duly notarized.

(c) Prior to the issuance of any assessment certificates, the board shall, by resolution, designate a financial institution located in this state as the registrar for such certificates, who shall maintain a complete and accurate record of the names and addresses of the persons or governmental agencies to whom the assessment certificates are issued. Within ten days of the issuance of an assessment certificate or any revised assessment certificates in lieu thereof, the board of the assessment district issuing the same shall provide to such registrar a list of the names and addresses of the person or governmental agency to whom the certificates were issued, which shall be certified by the secretary of the board. The record of certificate holders maintained by the registrar shall be open to inspection by the sheriff of the county in which the assessment district is located and may be relied upon by the sheriff for purposes of disbursing assessment fees in accordance with section seventeen of this article or in otherwise determining the lawful holders of the assessment certificates.

§16-13B-16. No liability of state, county, municipality and assessment district.

Neither the state nor any county or municipality shall be liable on notes or other evidences of indebtedness of an assessment district or for the payment of any assessment fees evidenced by any assessment certificate, and such notes or other evidences of indebtedness and assessment certificates shall not be a debt of the state or any county or municipality, and such notes or other evidences of indebtedness and assessment certificates shall contain on the face thereof a statement to such effect. No assessment district shall be liable for the payment of any assessment fees evidenced by any assessment certificates issued pursuant to this article and assessment certificates shall contain on the face thereof a statement to such effect.

§16-13B-17. Payment of assessment fees; releases.

 (a) Payments of assessment fees or any installment thereof shall be made to the sheriff of the county in which the assessment district is located, who shall hold and disburse all such fees as agent for the assessment district in accordance with this section. The sheriff shall promptly deposit all assessment fees upon receipt thereof in a segregated account established by the sheriff for such purpose and shall maintain a record of the assessment fees so received. Within thirty days of receipt of assessment fees from any person or governmental agency, the sheriff shall disburse the assessment fees to the holder of the assessment certificate pursuant to which such assessment fees were paid, and within sixty days after the receipt of all assessment fees due for the calendar year in question, but in no event later than October 1, of such year, prepare and deliver to the board of each assessment district located in the county, a statement setting forth the aggregate amount of assessment fees received for such district and the name of any property owner who failed to pay the assessment fees due and payable for the period in question.

(b) On or before April 30 of each year in which assessments are owed with respect to any lot or parcel of property within an assessment district located in a county, the sheriff of the county shall send a notice to the person owning such lot or parcel setting forth the assessment fee due for such period and that such assessment fee shall be due and payable on or before June 1 of such year. In preparing and mailing such notices, the sheriff may rely on the information contained in the records maintained by the registrar of each assessment district, as provided in section fifteen of this article.

(c) If payment in full is made to the holder of a certificate, the holder shall deliver the certificate to the assessment district marked "paid" to evidence the payments made of principal and interest, and the assessment district shall thereupon deliver the certificate to the payor. On presentation to the board for cancellation of all certificates for the full assessment made against a specific lot or parcel of property assessed, the chairman of the board shall on request execute and deliver a release of the lien of such assessment.

§16-13B-18. Liens; recording notice of liens; suit for enforcement; priority.

The property abutting the portion of the public way located within the assessment district, so improved, in the case of a wastewater or water project, or the property improved or protected by a flood relief project, against which properties an assessment has been laid as herein provided, shall be subject to a lien, from the date of the resolution laying the assessment, for the payment of that portion of the cost of the project assessed against said property. A notice of the liens of said assessments referring to the assessing resolution, and setting forth a list of the property assessed, described respectively as to amounts of assessment and ownership, frontage (solely in case of a wastewater or water project) and location of the property, shall be certified, by the chairman and secretary of the board, to the clerk of the county commission of the county wherein the project is located. The county clerk shall record the notice of such lien in the appropriate trust deed book or other appropriate county lien book and index the same in the name of each owner of property assessed. From the date of an assessment, the holder of the assessment certificate shall have such lien and shall be entitled to enforce the same in its, his or their name to the extent of the amount, including principal and interest and any penalty due for any failure to pay an installment when due, of such assessments and against the property to which the assessment certificate applies, as to any assessment not paid as and when due. Such assessments shall be and constitute liens in the hands of the holders of said certificates upon the respective lots and parcels of land assessed and shall have priority over all other liens except those for land taxes due the state, county and municipality and except any liens for preexisting special assessments provided under this code. If any assessment is revised in accordance with section ten or twenty of this article, the lien created by this section shall extend to the assessment so revised and shall have the same priority as the priority of the lien created upon the laying of the original assessment. Such assessments and interest thereon shall be paid by the owners of the property assessed as and when the installments are due. The holders of any such assessment certificates may enforce the lien thereof in any proper suit, and when default in the payment, as and when due, of any assessment, principal or interest, or installment thereof, shall occur and such default shall have continued for more than sixty days after the receipt by the property owner of written notice of such default from the sheriff of the county in which the assessment district which issued the certificates is located, the holders of any such certificates may declare the whole unpaid balance due and payable and by proper civil action enforce the lien thereof, upon process issued and served according to law upon the owner or owners of the lots or parcels of land subject to said lien at the time such suit may be brought as shown by the records of the clerk of the county commission of the county in which said lots or parcels of land are located. The notice required under this section shall be complete when such notice is mailed by certified mail, return receipt requested, directed to the address shown on the records maintained by the registrar under section fifteen of this article.

§16-13B-19. Reassessment for void, irregular or omitted assessments.

In the case of the construction of any permanent improvements where an assessment has heretofore been laid or may hereafter be laid for the cost thereof, which said assessment is or shall be void or voidable by reason of errors, irregularities or defects in the proceedings under which such improvements were made, or in case such assessment shall have been made against the wrong person or property, or shall have been omitted to be made in a case where the same was proper, it shall be the duty of the board within five years after the completion of such improvements, or after any court shall have declared such assessment invalid, to cause notice to be given to any person or persons against whom the cost of said improvements might properly be or have been assessed, of its intention to lay such assessment and fixing a date, time and place at which the owner or owners may appeal and show case against the same. Said notice shall be served in the manner provided in this article for the giving of notices in assessment proceedings, or in any other manner provided by law. At the time and place specified in the notice aforesaid or at any time thereafter, the board shall proceed to lay and levy an assessment or assessments for the cost of such improvements as would have been lawful under proper proceedings at the time said improvements were completed, unless the owner or owners so notified shall show good cause against the same. The reassessment or reassessments so laid shall be a lien upon the property liable therefor in the manner hereinabove provided from the date of the original assessment, with interest therefrom, and proper assessment certificate may be issued, recordation had, and the payment thereof and the lien thereof may be enforced in the same manner and upon the same terms as would have been proper at the time of the completion of the said improvements had the assessments therefor been then properly laid and levied.

§16-13B-20. How additional territory may be added to assessment district.

(a) A governing body may, with respect to any assessment district created by it, modify, expand or extend the boundaries of the assessment district to develop, construct, improve or extend any project, or to enable persons residing or engaged in business on property located outside the assessment district to obtain the services provided by a wastewater or water facility, (1) by satisfying the same requirements provided in this article for the creation of the assessment district, or (2) upon the unanimous written agreement of persons owning all of the property to be added to the assessment district that such property be added to the district and assessed in accordance with subsection (b) of this section: Provided, That no property may be added to an assessment district for connection to a wastewater or water project unless it abuts the assessment district.

(b) Any property added to an assessment district shall be assessed for and bear a proportionate share of the cost of the project then remaining unpaid, consistent with the concepts and principles set forth in sections eleven and twelve of this article and the assessment so laid shall be a lien upon the property in the same manner hereinabove provided from the date such assessment is laid. Contemporaneously with the resolution laying the assessment against such property, all other property located in the assessment district shall be reassessed to reflect the addition of such property to the assessment district. In all such cases, the assessment district shall be the holder of the assessment certificates issued to evidence the assessments laid upon the added property, and all assessment fees received by the sheriff from such assessment certificates shall be applied, pro rata, to reduce the final installment of principal and interest due from the owners of all other property located in the assessment district as it existed prior to the addition of property to the district.

(c) If any property is connected to a wastewater or water project after the cost of the project has been paid in full and the transfer of the project to a utility or governmental agency pursuant to section twenty-one of this article, the owner of such property shall pay to the utility or governmental agency the same rates and charges paid by other customers of the utility or governmental agency for the services provided by the wastewater or water facility operated and maintained by it.

§16-13B-21. Operation and maintenance of wastewater and water projects; rates and charges therefor.

(a) Prior to the construction of a wastewater or water project, the assessment district in which the project shall be located shall enter into one or more agreements with a utility or governmental agency operating a wastewater or water facility within the service area covered by the assessment district for the operation and maintenance of the project and for the provision of wastewater or water services, as the case may be, and such utility or governmental agency shall thereupon be authorized and empowered to charge and collect from each person connected to the project such rates and charges customarily paid by customers of such utility or governmental agency for similar wastewater or water services. All such agreements shall have terms of duration equal to or greater than the period necessary for the cost of the project to be paid in full, and may otherwise contain such terms and conditions as may be mutually agreed to by the parties, and shall be presented as part of the application to the Public Service Commission required by section ten (c) hereof.

(b) Immediately upon the final payment of all assessment fees due under all assessment certificates issued in connection with a wastewater or water project constructed within an assessment district, the assessment district shall transfer and convey all of its right, title and interest in and to such project to the utility or governmental agency providing wastewater or water services, as the case may be.

§16-13B-22. Liberal construction.

This article being necessary for the public health, safety and welfare, it shall be liberally construed to effectuate the purpose hereof.

§16-13C-1. Definitions.

[Repealed.]

§16-13C-2. Designation of division of health as state instrumentality; rules; small systems; disadvantaged communities.

[Repealed.]

§16-13C-3. Drinking water treatment revolving fund; duties of division of health and water development authority; set-aside accounts.

[Repealed.]

§16-13C-4. Management of funds.

[Repealed.]

§16-13C-5. Remedies to enforce payment.

[Repealed.]

§16-13C-6. Construction of article.

[Repealed.]

§16-13D-1. Statement of purpose.

It is the purpose of this article, to permit a public agency, or more than one public agency to make the most efficient use of its or their powers relating to public water supplies, the transportation and treatment of wastewater, and the management of stormwater by enabling a public agency, or more than one public agency to cooperate with other public agencies on a basis of mutual advantage and thereby to provide services and facilities to participating public agencies and to provide for the establishment for the purpose of a quasi-governmental public corporation which shall be known as a regional water authority, a regional wastewater authority, a regional stormwater authority, or any combination thereof. The function of the regional water authority shall be to secure a source of water on a scale larger than is feasible for an individual public agency or agencies acting alone, and to sell water to public service districts, municipalities, publicly and privately owned water utilities, and others. The function of the regional wastewater authority shall be to enable a public agency or agencies to provide the most economical method of transportation and treatment of wastewater and to provide transportation and treatment services to public service districts, municipalities, publicly and privately owned wastewater utilities, and others. The function of the regional stormwater authority shall be to enable a public agency or agencies to provide storm, flood and surface water drainage management services to public service districts, municipalities, publicly and privately owned stormwater utilities, and others. The function of a regional authority that provides any combination of water, wastewater, or stormwater service shall be to enable a public agency or agencies to carry out the joint functions of a water, wastewater, or stormwater regional water authority.

In addition to the purposes for which it may have originally been created, any authority created pursuant to this article may enter into agreements with public agencies, privately owned utilities, and other authorities, for the provision of related services including, but not limited to the following: administration, operation and maintenance, billing, and collection.

§16-13D-2. Definitions.

For the purposes of this article:

(a) The term "authority" means any regional water authority, regional wastewater authority, regional stormwater authority, or any combination thereof organized pursuant to the provisions of this article;

(b) The term "public agency" means any municipality, county, public service district, or other political subdivision of this state; and

(c) The term "stormwater," "stormwater system," or "stormwater works" means a stormwater system in its entirety or any integral part thereof used to collect and dispose of stormwater and an associated stormwater management program. It includes all facilities, structures, and natural water courses used for collecting and conducting stormwater to, through, and from drainage areas to the points of final outlet, including, but not limited to, any and all of the following: inlets, conduits, outlets, channels, ponds, drainage easements, water quality facilities, catch basins, ditches, streams, gulches, flumes, culverts, syphons, retention or detention basins, dams, floodwalls, levies, pipes, flood control systems and pumping stations, and associated stormwater management program. The term "stormwater system" and "stormwater works" shall not include highways, road and drainage easements, and/or stormwater facilities constructed, owned and/or operated by the West Virginia Division of Highways.

§16-13D-3. Individual or joint exercise of powers by certain public agencies; agreements among agencies, contents; submission to Public Service Commission; filing of agreement; prohibition against competition; retirement of bonds.

(a) Any powers, privileges, or authority of a public agency of this state relating to public water supplies, or the transportation or treatment of wastewater, or the operation of a stormwater system may be exercised individually or jointly with any other public agency of this state, or with any agency of the United States to the extent that the laws of the United States permit. Any agency of the state government when acting individually or jointly with any public or private agency may exercise all of the powers, privileges, and authority conferred by this act upon a public agency.

(b) Any public agency may individually organize a regional water authority, regional wastewater authority, regional stormwater authority, or any combination thereof. Any public agency may enter into agreements with one or more other public agencies for the purpose of organizing a regional water authority, regional wastewater authority, regional stormwater authority, or any combination thereof. Appropriate action by ordinance, resolution, or otherwise pursuant to law of the governing bodies of the participating public agency or agencies required by the provisions of Chapter 8 and Chapter 16 of this code shall be necessary before any agreement may enter into force.

(c) For an agency acting individually, the organizational document for the authority shall specify the following:

(1) The precise organization, composition, and nature of the authority created thereby together with the powers delegated thereto;

(2) Its purpose or purposes;

(3) The manner of financing for the authority and of establishing and maintaining a budget therefor;

(4) The manner of acquiring, holding, and disposing of real and personal property of the authority; and

(5) Any other necessary and proper matters.

(d) Any agreement between two or more public agencies to organize an authority shall specify the following:

(1) Its duration;

(2) The precise organization, composition and nature of the authority created thereby together with the powers delegated thereto;

(3) Its purpose or purposes;

(4) The manner of financing for the authority and of establishing and maintaining a budget therefor;

(5) The permissible methods for partial or complete termination of the agreement and for disposing of property upon partial or complete termination;

(6) The manner of acquiring, holding, and disposing of real and personal property of the authority;

(7) Any other necessary and proper matters.

(e) Any agreement between two or more public agencies to organize an authority may be amended to include additional public agencies by consent of two-thirds of the signatories to the agreement, if no terms of agreement are changed, otherwise a new agreement with the new public agency shall be drawn. Where fewer than three public agencies come together to form an authority, both parties shall consent to the amendment of the agreement to include additional public agencies.

(f) Any agency acting individually to organize an authority and every agreement made hereunder shall be submitted to the Public Service Commission for its approval. The Public Service Commission shall, within 30 days of the filing date, notify the agency whether the agency has filed all required documentation regarding the organization or agreement that is required by the Commission. If the Commission determines that additional information is needed it will inform the agency of the information needed. Failure by the Public Service Commission to approve or disapprove an agency’s decision to individually organize an authority or an agreement submitted hereunder within 90 days of the date that the Commission has before it all of the necessary information from the agency shall constitute approval thereof: Provided, That the 90-day Commission review period may be extended upon request of the agency.

(g) Prior to taking effect, the organizational document of the agency acting individually or the agreement between two or more agencies made hereunder shall be filed with the clerk of the county commission of each county in which the agency acting individually, or in the case of an authority organized by agreement of two or more agencies, in the county where each member of the authority is located and the agreement then also shall be filed with the Secretary of State, accompanied by a certificate from the clerk of the county commission of the county, or counties, where filed, stating that the agreement has been filed in that county.

(h) A public agency which enters into an agreement made hereunder may not offer or provide water, wastewater, or stormwater services in competition with another public agency entering into the agreement.

(i) A public agency which enters into an agreement made hereunder may not withdraw from the agreement until such time as the outstanding bonded indebtedness of the authority is retired or the bond holders are otherwise protected.

§16-13D-4. Furnishing of funds, personnel or services by certain public agencies, agreements for purchase, sale, distribution, transmission, transportation, collection, disposal, and treatment of water, wastewater, or stormwater; terms and conditions.

Any public agency acting individually to organize an authority or entering into an agreement pursuant to this article may appropriate funds and may sell, lease, give, or otherwise supply to the authority created the personnel or services for the operation of the authority as may be within its legal power to furnish.

Subject to the prior approval of the Public Service Commission pursuant to §24-2-12 of this code, any public agency, whether or not a party to an agreement pursuant to this article, and any publicly or privately owned water distribution company may enter into contracts with any regional authority created pursuant to this article for the purchase of water from the authority or the sale of water to the authority, the treatment of water by either party, and the distribution or transmission of water by either party and any such authority may enter into the contracts. The Public Service Commission shall, within 30 days of the filing date, notify the parties to the contract whether they have filed all required documentation regarding the contract. If the Commission determines that additional information is needed it will inform the agency of the information needed. The Public Service Commission shall act on a filing submitted hereunder within 90 days of the date that the Commission has before it all necessary information from the parties to the contract. Failure of the Commission to act on the filing within the 90-day period shall constitute approval thereof: Provided, That the 90-day Commission review period may be extended upon request of the parties to the contract.

Any public agency, whether or not a party to an agreement pursuant to this act, and any publicly or privately owned wastewater transportation or treatment system may enter into contracts with any regional authority created pursuant to this article for the transportation and treatment of wastewater by either party and any authority may enter into the contracts, subject to the prior approval of the Public Service Commission pursuant to §24-2-12 of this code. The Public Service Commission shall, within 30 days of the filing date, notify the parties to the agreement whether they have filed all required documentation regarding the contract. If the Commission determines that additional information is needed it will inform the agency of the information needed. The Public Service Commission shall act on a filing submitted hereunder within 90 days of the date that the Commission has before it all necessary information from the parties to the contract. Failure by the Commission to act within the 90-day period shall constitute approval thereof: Provided, That the 90-day Commission review period may be extended on upon request of the parties to the contract.

Any public agency, whether or not a party to an agreement pursuant to this article, and any publicly or privately owned stormwater system may enter into contracts with any regional authority created pursuant to this article for the collection and disposition of stormwater by either party and any authority may enter into contracts.

Any contract may include an agreement for the purchase of water not actually received or the treatment of wastewater not actually treated, or the collection and disposition of stormwater not actually collected and disposed. No contract may be made for a period in excess of 40 years, but renewal options may be included therein. The obligations of any public agency under any contract shall be payable solely from the revenues produced from the public agency’s water, stormwater and wastewater system, and the Public Service Commission, in the case of a public agency whose rates are subject to its jurisdiction, shall permit the public agency to recover through its rates revenues sufficient to meet its obligations under the agreement.

§16-13D-5. Declaration of authority organization, when quasi-governmental public corporation.

Upon the approval of the Public Service Commission and filing with the Secretary of State, the Secretary of State shall declare the authority organized and give it the corporate name of regional water authority number ____ , regional wastewater authority number ____ , regional stormwater authority number ____, or any combination thereof, whichever is appropriate. Thereupon the authority shall be a quasi-governmental public corporation.

§16-13D-6. Governing body; appointments; terms of members, voting rights.

The governing body of the authority shall consist of not less than three persons selected by the governing body of the public agency. When the authority is organized by more than one public agency, each participating public agency shall appoint at least one member.

The governing body of the authority shall consist of at least one member of the following categories: (1) A professional engineer licensed by the State of West Virginia, (2) a certified public accountant licensed by the State of West Virginia, or (3) an attorney licensed and in good standing with the West Virginia State Bar. Each member of the board must be a rate-paying residential customer of the authority.

For purposes of this section, "rate-paying residential customer" means a person who: (1) In the case of water or wastewater service, is physically connected to and actively receiving residential utility services from the authority; or (2) in the case of stormwater service, has stormwater conveyed away from the residential property by facilities owned by the authority. Each member’s full term shall be not less than one year nor more than four years and initial terms shall be staggered in accordance with procedures set forth in the organization document or agreement provided for in §16-13D-3 of this code, and amendments thereto. In the case of an authority which is made up by the agreement of two public agencies, each public agency shall appoint at least two representatives to the governing body.

When the authority is organized by more than one public agency the manner of selection of the governing body and terms of office shall be set forth in the agreement provided for in §16-13D-3 of this code, and amendments thereto. The governing body of the authority shall elect one of its members as president, one as treasurer and one as secretary.

Each member shall have one vote in any matter that comes before the authority for decision. However, when the authority is organized by more than one public agency, the member agencies shall, in the original agreement establishing the authority, set forth any special weighing of the votes based upon population served, volumes of water purchased, volumes of wastewater treated, volumes of stormwater collected and disposed numbers of customers, or some other criterion, so as to maintain fairness in the decisions and operations of the authority.

§16-13D-7. Meetings of governing body; annual audit.

 The governing body of the authority shall meet as often as the needs of the authority require; but not less frequently than on a quarterly basis. The governing body shall cause to be made an annual audit of the financial records of the authority, the cost of said audit to be paid by the authority.

§16-13D-8. Powers of governing body.

For the purpose of operating as an authority as provided in this article, powers, authorities, and privileges of the authority shall include, but are not limited to, the following:

(1) To accept by gift or grant from any person, firm, corporation, trust, or foundation, or from this state or any other state or any political subdivision or municipality thereof, or from the United States, any funds or property or any interest therein for the uses and purposes of the authority and to hold title thereto in trust or otherwise and to bind the authority to apply the same according to the terms of the gift or grant;

(2) To sue and be sued;

(3) To enter into franchises, contracts and agreements with this or any other state or the United States or any municipality, political subdivision or authority thereof, or any of their agencies or instrumentalities, or any public or private person, partnership, association, or corporation of this state or of any other state or the United States, and this state and any municipality, political subdivision, authority, or any of their agencies or instrumentalities, and any public or private person, partnership, association, or corporation may enter into contracts and agreements with the authority for any term not exceeding 40 years for the planning, development, construction, acquisition, maintenance, or operation of any facility or for any service rendered to, for, or by the authority;

(4) To borrow money and evidence the same by warrants, notes, or bonds as hereinafter provided in this article, and to refund the same by the issuance of refunding obligations;

(5) To acquire land and interests in land by gift, purchase, exchange, or eminent domain, the power of eminent domain to be exercised within or without the boundaries of the authority in accordance with §54-2-1 et seq. of this code;

(6) To acquire by purchase or lease, construct, install, and operate reservoirs, pipelines, wells, check dams, pumping stations, water purification plants, and other facilities for the production, distribution, and utilization of water, transportation facilities, pump stations, lift stations, treatment facilities, and other facilities for the transportation and treatment of wastewater, and inlets, conduits, outlets, channels, ponds, drainage easements, water quality facilities, catch basins, ditches, streams, gulches, flumes, culverts, syphons, retention or detention basins, dams, floodwalls, levies, pipes, flood control systems, pumping stations, and treatment facilities and to own and hold the real and personal property as may be necessary to carry out the purposes of its organization subject to the advance approval of the Public Service Commission pursuant to Chapter 24 of this code for any proposed acquisition, construction, installation or operation. The Public Service Commission shall, within 30 days of a request for approval submitted hereunder, notify the authority whether its filing is complete. If the Commission determines that additional information is needed it will inform the agency of the information needed. Notwithstanding the timeframes for Commission approval of public utility projects set forth in Chapter 24, the Commission shall act on authority proposals within the following timeframes.

The Public Service Commission shall act on all proposals submitted hereunder by an authority that provides only water service or only wastewater service, or by an authority that does not seek a rate increase within 120 days of the date that the authority files with the Commission a complete application. Failure of the Public Service Commission to act within the 120-day period shall be deemed an approval of such proposal: Provided, That the Commission’s 120-day review period may be extended upon request of the authority.

The Public Service Commission shall act on all proposals submitted hereunder for which the authority seeks a rate increase and the authority provides water and wastewater services, water and stormwater services, wastewater and stormwater services, or water and wastewater and stormwater services, within 180 days of the date the authority files with the Commission the necessary information showing the basis of any project related rates, fees, and charges or other information as the Commission considers necessary: Provided, That the information shall include an explanation of the amount and basis for assigning and allocating total costs between the water operations, the wastewater operations, and if applicable the stormwater operations. Failure by the Commission to act within the 180-day period shall constitute approval thereof. Provided, however, That the 180-day Commission review period may be extended upon request of the authority.

(7) To have the general management, control, and supervision of all the business, affairs, property, and facilities of the authority, and of the construction, installation, operation, and maintenance of authority improvements, and to establish regulations relating thereto;

(8) To hire and retain agents, employees, engineers, and attorneys and to determine their compensation. The governing body shall select and appoint a general manager of the authority who shall serve at the pleasure of said governing body. The general manager shall have training and experience in the supervision and administration of the system or systems operated by the authority and shall manage and control the system under the general supervision of the governing body. All employees, servants and agents of the authority shall be under the immediate control and management of said general manager. The general manager shall perform all other duties as may be prescribed by the governing body and shall give the governing body a good and sufficient surety company bond in a sum to be set and approved by the governing body conditioned upon the satisfactory performance of the general manager’s duties. The governing body may also require that any other employees be bonded in such amount as it shall determine. The cost of the bonds shall be paid out of the funds of the authority;

(9) To adopt and amend rules and regulations not in conflict with the Constitution and laws of this state, necessary for the carrying on of the business, objects, and affairs of the governing body and of the authority;

(10) To have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted herein. The specific powers may not be considered as a limitation upon any power necessary or appropriate to carry out the purposes of this article.

§16-13D-9. Revenue bonds.

For constructing or acquiring any water supply, wastewater transportation, or treatment system, or stormwater system for the authorized purposes of the authority, or necessary or incidental thereto, and for constructing improvements and extensions thereto, and also for reimbursing or paying the costs and expenses of creating the authority, the governing body of any authority may borrow money from time to time and in evidence thereof issue the revenue bonds of the authority. The revenue bonds are hereby made a lien on the revenues produced from the operation of the authority’s system, but may not be general obligations of the public agency individually organizing the authority or public agencies participating in the agreement. All revenue bonds issued under this article shall be signed by the president of the governing body of the authority and attested by the secretary of the governing body of the authority and shall contain recitals stating the authority under which the bonds are issued and that they are to be paid by the authority from the net revenue derived from the operation of the authority’s system and not from any other fund or source and that the bonds are negotiable and payable solely from the revenues derived from the operation of the system under control of the authority: Provided, That in the case of a regional authority providing combined service, the statutory lien created hereby shall only be a lien on the revenues of that service funded by the proceeds of the sale of the bonds, it being understood that the combined authority shall maintain separate books and records for its operations. The bonds may be issued in one or more series, may bear the date or dates, may mature at the time or times not exceeding 40 years from their respective dates, may bear interest at a rate not exceeding two percent above the interest rate on treasury notes, bills or bonds of the same term as the term of the bond or bonds the week of closing on the bond or bonds as reported by the Treasury of the United States, may be payable at the times, may be in the form, may carry the registration privileges, may be executed in the manner, may be payable at the place or places, may be subject to the terms of redemption with or without premium, may be declared or become due before maturity date thereof, may be authenticated in any manner, and upon compliance with the conditions, and may contain the terms and covenants as may be provided by resolution or resolutions of the governing body of the authority. Notwithstanding the form or tenor thereof, and in the absence of any express recital on the face thereof, that the bond is nonnegotiable, all the bonds shall be, and shall be treated as, negotiable instruments for all purposes. Bonds bearing the signatures of officers in office on the date of the signing thereof shall be valid and binding for all purposes notwithstanding that before the delivery thereof any or all of the persons whose signatures appear thereon shall have ceased to be officers. Notwithstanding the requirements or provisions of any other law, any such bonds may be negotiated or sold in the manner and at the time or times as is found by the governing body to be most advantageous, and all such bonds may be sold at the price that the interest cost of the proceeds therefrom does not exceed three percent above the interest rate on treasury notes, bills or bonds of the same term as the term of the bond or bonds the week of closing on the bond or bonds as reported by the Treasury of the United States, based on the average maturity of the bonds and computed according to standard tables of bond values. Any resolution or resolutions providing for the issuance of the bonds may contain covenants and restrictions upon the issuance of additional bonds thereafter as may be considered necessary or advisable for the assurance of the payment of the bonds thereby authorized.

§16-13D-10. Items included in cost of properties.

The cost of any water supply, wastewater transportation, treatment system, or stormwater system acquired or constructed under this article shall be considered to include the cost of the acquisition or construction thereof, the cost of all property rights, easements and franchises considered necessary or convenient therefor and for the improvements and extensions thereto; interest upon bonds prior to and during construction or acquisition and for six months after completion of construction or of acquisition of the improvements and extensions; engineering, fiscal agents and legal expenses; expenses for estimates of cost and of revenues, expenses for plans, specifications and surveys; other expenses necessary or incident to determining the feasibility or practicability of the enterprise, administrative expense, and such other expenses as may be necessary or incident to the financing herein authorized, and the construction or acquisition of the properties and the placing of same in operation, and the performance of the things herein required or permitted, in connection with any thereof.

§16-13D-11. Bonds may be secured by trust indenture.

In the discretion and at the option of the governing body of the authority, the bonds may be secured by a trust indenture by and between the authority and a corporate trustee, which may be a trust company or bank having powers of a trust company within or without the State of West Virginia, but no trust indenture may convey, mortgage, or create any lien upon the water supply, wastewater transportation or treatment system, or stormwater system, or any part thereof of the authority or its member public agencies. The resolution authorizing the bonds and fixing the details thereof may provide that the trust indenture may contain provisions for protecting and enforcing the rights and remedies of bondholders as may be reasonable and proper, not in violation of law, including covenants setting forth the duties of the authority and the members of its governing body and officers in relation to the construction or acquisition of the water supply, wastewater transportation or treatment system, or stormwater system, and the improvement, extension, operation, repair, maintenance, and insurance thereof, and the custody, safeguarding, and application of all moneys, and may provide that all or any part of the construction work shall be contracted for, constructed and paid for, under the supervision and approval of consulting engineers employed or designated by the governing body and satisfactory to the original bond purchasers, their successors, assignees or nominees, who may be given the right to require the security given by contractors and by any depository of the proceeds of bonds or revenues of the water supply, the wastewater transportation or treatment system, or stormwater system, or other money pertaining thereto be satisfactory to the purchasers, their successors, assignees or nominees. The indenture may set forth the rights and remedies of the bondholders and the trustee.

§16-13D-12. Sinking fund for revenue bonds.

At or before the time of the issuance of any bonds under this article the governing body of the authority shall by resolution or in the trust indenture provide for the creation of a sinking fund and for monthly payments into the fund from the revenues of the water supply, wastewater transportation or treatment system, or stormwater system operated by the authority such sums in excess of the cost of maintenance and operation of the properties as will be sufficient to pay the accruing interest and retire the bonds at or before the time each will respectively become due and to establish and maintain reserves therefor. All sums which are or should be, in accordance with the provisions, paid into the sinking fund shall be used solely for payment of interest and for the retirement of bonds at or prior to maturity as may be provided or required by such resolutions.

§16-13D-13. Collection, etc., of revenues and enforcement of covenants; default; suit, etc., by bondholder or trustee to compel performance of duties; appointment and powers of receiver.

The governing body of any such authority may insert enforceable provisions in any resolution authorizing the issuance of bonds relating to the collection, custody, and application of revenues of the authority from the operation of the water supply, wastewater transportation or treatment system, or stormwater system under its control and to the enforcement of the covenants and undertakings of the authority. If there is a default in the sinking fund provisions or in the payment of the principal or interest on any of the bonds or, if the authority or its governing body or any of its officers, agents, or employees, shall fail or refuse to comply with this article, or shall default in any covenant or agreement made with respect to the issuance of the bonds or offered as security therefor, then any holder or holders of the bonds and any such trustee under the trust indenture, if there is one, may by suit, action, mandamus, or other proceeding instituted in the circuit court for the county or any of the counties wherein the authority extends, or in any other court of competent jurisdiction, enforce and compel performance of all duties required by this article or undertaken by the authority in connection with the issuance of the bonds, and upon application of any such holder or holders, or the trustee, the court shall, upon proof of the defaults, appoint a receiver for the affairs of the authority and its properties, which receiver so appointed shall forthwith directly, or by his or her agents and attorneys, enter into and upon and take possession of the affairs of the authority and each and every part thereof, and hold, use, operate, manage, and control the authority, and in the name of the authority exercise all of the rights and powers of the authority as is considered expedient, and the receiver may collect and receive all revenues and apply them in the manner as the court shall direct. Whenever the default causing the appointment of the receiver has been cleared and fully discharged and all other defaults have been cured, the court may and after the notice and hearing as it considers reasonable and proper direct the receiver to surrender possession of the affairs of the authority to its governing body. The receiver so appointed may not sell, assign, mortgage, or otherwise dispose of any assets of the authority except as hereinbefore provided.

§16-13D-14. Statutory mortgage lien created; foreclosure thereof.

There is hereby created a statutory mortgage lien upon the water supply, wastewater transportation or treatment system, or stormwater system of the authority, which shall exist in favor of the holders of bonds hereby authorized to be issued, and each of them, and the system shall remain subject to the statutory mortgage lien until payment in full of all principal of and interest on the bonds.

§16-13D-15. Rates and charges.

The governing body shall by appropriate resolution make provisions for the payment of the bonds by fixing rates, fees, and charges, for the use of all services rendered by the authority, which rates, fees, and charges shall be sufficient to pay the costs of operation, improvement, and maintenance of the authority’s water supply, wastewater transportation and/or treatment system, or stormwater system, to provide an adequate depreciation fund, provide an adequate sinking fund to retire the bonds and pay interest thereon when due, and to create reasonable reserves for those purposes. The fees, rates or charges shall be sufficient to allow for miscellaneous and emergency or unforeseen expenses. The authority shall maintain a working capital reserve in an amount of no less than one-eighth of all expenses incurred by the authority on an annual basis: Provided, That this working capital reserve shall be separate and distinct from, and in addition to: (1) any repair and replacement fund that may be required by bond covenants, and (2) any other funds held by the authority. The resolution of the governing body authorizing the issuance of revenue bonds may include agreements, covenants, or restrictions considered necessary or advisable by the governing body to effect the efficient operation of the system and to safeguard the interests of the holders of the revenue bonds and to secure the payment of the bonds and the interest thereon. The rates, fees, and charges for water, wastewater, or both, established by the authority shall be subject to review and approval by the Public Service Commission pursuant to Chapter 24 of this code.

The Public Service Commission shall, within 30 days of a rate filing, notify the authority whether its rate filing is complete. If the Commission determines that additional information is needed it will inform the authority of the information needed. Notwithstanding the timeframes for Commission review of rate applications set forth in Chapter 24, the Commission shall act on authority rate applications within the following timeframes:

(1) The Public Service Commission shall act on a rate filing by an authority that provides only water service or only wastewater service within 120 days of the date that the authority files with the Commission the necessary information showing the basis of the rates, fees, and charges or other information as the commission considers necessary. Failure of the Commission to act within the 120-day time period shall constitute approval thereof: Provided, That the 120-day period may be extended upon request of the authority.

(2) The Public Service Commission shall act on a rate filing by an authority that provides water and wastewater services, water and stormwater services, wastewater and stormwater services, or water and wastewater and stormwater services, within 180 days of the date that the authority files with the Commission the necessary information showing the basis of the rates, fees, and charges or other information as the Commission considers necessary: Provided, That the information shall include an explanation of the amount and basis for assigning and allocating total costs between the water operations, the wastewater operations, and if applicable the stormwater operations. Failure by the Commission to act within the 180-day period shall constitute approval thereof: Provided, however, That the 180-day Commission review period may be extended upon request of the authority.

Notwithstanding the provisions of any other law or charter to the contrary, any regional stormwater authority may provide storm, flood, and surface water drainage management services to areas located outside its jurisdiction from which stormwater affects or drains into the area served by the regional stormwater authority, and any regional stormwater authority may assess fees for providing storm, flood, and surface water draining management services to be paid by the owner of each and every lot, parcel of real estate or building that in any way uses or is served by the stormwater system. The Public Service Commission has no jurisdiction to regulate the rates charged for storm, flood, and surface water drainage management services.

§16-13D-16. Refunding revenue bonds.

The authority having issued bonds under the provisions of this article is hereby empowered thereafter by resolution to issue refunding bonds of such authority for the purpose of retiring or refinancing such outstanding bonds, together with any unpaid interest thereon and redemption premium thereunto appertaining and all of the provisions of this article relating to the issuance, security and payment of bonds shall be applicable to such refunding bonds, subject, however, to the provisions of the proceedings which authorized the issuance of the bonds to be so refunded.

§16-13D-17. Exemption of bonds from taxation.

The bonds and the interest thereon, together with all properties and facilities of the authority owned or used in connection with the water, wastewater system, or stormwater system, and all the moneys, revenues, and other income of the authority derived from the water, wastewater system, or stormwater system shall be exempt from all taxation by the state of West Virginia or any county, municipality, political subdivision, or agency thereof.

§16-13D-18. Bonds made legal investments.

Bonds issued under the provisions of this article shall be legal investments for banks, building and loan associations, and insurance companies organized under the laws of this state and for a business development corporation organized pursuant to chapter thirty-one, article fourteen of the Code of West Virginia.

§16-13D-19. Invalidity of part.

If any section or sections of this article be declared unconstitutional or invalid, this shall not invalidate any other section of this article.

§16-13D-20. Article to be liberally construed.

This article is necessary for the public health, safety and welfare and shall be liberally construed to effectuate its purposes.

§16-13D-21. Citation of article.

This article may be known and cited as the "Regional Water and Wastewater, and Stormwater Authority Act".

§16-13E-1. Short title.

This article shall be known and may be cited as the "West Virginia Community Enhancement Act".

§16-13E-2. Definitions.

For purposes of this article:

(a) "Assessment bonds" means special obligation bonds or notes issued by a community enhancement district which are payable from the proceeds of assessments.

(b) "Assessment" means the fee, including interest, paid by the owner of real property located within a community enhancement district to pay for the cost of a project or projects constructed upon or benefitting or protecting such property and administrative expenses related thereto, which fee is in addition to all taxes and other fees levied on the property.

(c) "Board" means a Community Enhancement Board created pursuant to this article.

(d) "Community enhancement district" or "district" means a community enhancement district created pursuant to this article.

(e) "Cost" means the cost of:

(1) Construction, reconstruction, renovation and acquisition of all lands, structures, real or personal property, rights, rights-of-way, franchises, easements and interests acquired or to be acquired by the district;

(2) All machinery and equipment, including machinery and equipment needed to expand or enhance county or city services to the district;

(3) Financing charges and interest prior to and during construction and, if deemed advisable by the district or governing body, for a limited period after completion of the construction;

(4) Interest and reserves for principal and interest, including costs of municipal bond insurance and any other type of financial guaranty;

(5) Costs of issuance in connection with the issuance of assessment bonds;

(6) The design of extensions, enlargements, additions and improvements to the facilities of any district;

(7) Architectural, engineering, financial and legal services;

(8) Plans, specifications, studies, surveys and estimates of costs and revenues;

(9) Administrative expenses necessary or incident to determining to proceed with any project; and

(10) Other expenses as may be necessary or incident to the construction, acquisition and financing of a project.

(f) "Development concept" means the following items, to the extent set forth or specified in the subject subdivision or land development plan and plat:

(1) The maximum aggregate number of lots or parcels into which the subject land is to be subdivided.

(2) The size and boundaries of the individual lots or parcels into which the subject land is to be subdivided.

(3) The density of the land development.

(4) Designation of use of the individual lots or parcels.

(5) The location of roads, streets, parking lots, sidewalks and other paved areas.

(6) The location of ingress and egress for the land development.

(7) Setback lines and distances and buildable areas.

(8) The finished layout and grade of the land.

(g) "Development concept vesting period" means the period commencing upon approval of the subject land development plan and plat by the planning commission and terminating on the maturity date of the subject assessment bonds or tax increment financing obligation. The development concept vesting period pertains only to the vested property right in a development concept that is established upon approval by the planning commission of a land development plan and plat in which a development concept is set forth or specified.

(h) "Five-year vesting period" means the five-year vesting period for an approved land development plan and plat provided under subsection (c), section twelve, article five, chapter eight-a of this code.

(i) "Governing body" means, in the case of a county, the county commission and in the case of a municipality, the mayor and council together, the council or the board of directors as charged with the responsibility of enacting ordinances and determining the public policy of such municipality.

(j) "Governmental agency" means the state government or any agency, department, division or unit thereof; counties; municipalities; any watershed enhancement districts, soil conservation districts, sanitary districts, public service districts, drainage districts, school districts, urban renewal authorities or regional governmental authorities established pursuant to this code.

(k) "Person" means an individual, firm, partnership, corporation, voluntary association or any other type of entity.

(l) "Project" means the design, construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, equipping, maintenance, repair (including replacements) and start-up operation of water source of supply, treatment, transmission and distribution facilities, sewage treatment, collection and transmission facilities, stormwater systems, police stations, fire stations, libraries, museums, schools, other public buildings, hospitals, piers, docks, terminals, drainage systems, culverts, streets, roads, bridges (including approaches, causeways, viaducts, underpasses and connecting roadways), motor vehicle parking facilities (including parking lots, buildings, ramps, curb-line parking, meters and other facilities deemed necessary, appropriate, useful, convenient or incidental to the regulation, control and parking of motor vehicles), public transportation, public recreation centers, public recreation parks, swimming pools, tennis courts, golf courses, equine facilities, motor vehicle competition and recreational facilities, flood protection or relief projects, or the grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing, widening, lighting or otherwise improving any street, avenue, road, highway, alley or way, or the building or renewing of sidewalks and flood protection; and the terms shall mean and include any project as a whole, and all integral parts thereof, including all necessary, appropriate, useful, convenient or incidental appurtenances and equipment in connection with any one or more of the above.

§16-13E-3. Power and authority of counties and municipalities to create and establish community enhancement districts.

(a) Every county and municipality is hereby empowered and authorized, in addition to any other rights, powers and authority conferred upon it elsewhere in this code, to create, modify and expand community enhancement districts in the manner hereinafter set forth in such county or municipality and to assist in the development, construction, acquisition, extension or improvement of a project or projects located in such county or municipality.

(b) Unless agreed to by a municipality, the power and authority hereby conferred on a county shall not extend into territory within the boundaries of any municipality: Provided, That notwithstanding any provision in this code to the contrary, the power and authority hereby conferred on counties may extend within the territory of a public service district created under section two, article thirteen-a of this chapter.

§16-13E-4. Petition for creation or expansion of community enhancement district; petition requirements.

(a) The owners of at least sixty-one percent of the real property, determined by acreage, located within the boundaries of the area described in the petition, by metes and bounds or otherwise in a manner sufficient to describe the area, may petition a governing body to create or expand a community enhancement district.

(b) The petition for the creation or expansion of a community enhancement district shall include, where applicable, the following:

(1) The proposed name and proposed boundaries of such district and a list of the names and addresses of all owners of real property within the proposed district;

(2) A detailed project description;

(3) A map showing the proposed project, including all proposed improvements;

(4) A list of estimated project costs and the preliminary plans and specifications for such improvements, if available;

(5) A list of nonproject costs and how they will be financed;

(6) A consultant study outlining the projected assessments, setting forth the methodology for determining the assessments and the methodology for allocating portions of an initial assessment against a parcel expected to be subdivided in the future to the various lots into which the parcel will be subdivided and demonstrating that such assessments will adequately cover any debt service on bonds issued to finance the project and ongoing administrative costs;

(7) A development schedule;

(8) A list of recommended members for the board;

(9) If the project includes water, wastewater or sewer improvements, written evidence from the utility or utilities that will provide service to the district, if any, that said utility or utilities:

(A) Currently has adequate capacity to provide service without significant upgrades or modifications to its treatment, storage or source of supply facilities, except facilities which the community enhancement district will provide as described in the petition;

(B) Will review and approve all plans and specifications for the improvements to determine that the improvements conform to the utility's reasonable requirements and, if the improvement consists of water transmission or distribution facilities, that the improvements provide for adequate fire protection for the district; and

(C) If built in conformance with said plans and specifications, will accept the improvements following their completion, unless such projects are to be owned by the district;

(10) If the project includes improvements other than as set forth in subdivision (9) of this subsection that will be transferred to another governmental agency, written evidence that such agency will accept such transfer, unless such projects are to be owned by the district;

(11) The benefits that can be expected from the creation of the district and the project; and

(12) A certification from each owner of real property within the proposed district who joins in the petition that he or she is granting an assessment against his or her property in such an amount as to pay for the costs of the project and granting a lien for said amount upon said property enforceable in accordance with this article.

(c) After reviewing the petition presented pursuant to this section, the governing body may by order or ordinance determine the necessity and economic feasibility of creating a community enhancement district and developing, constructing, acquiring, improving or extending a project therein. If the governing body determines that the creation of a community enhancement district and construction of the project is necessary and economically feasible, it shall set a date for the public meeting required under section five of this article and shall cause the petition to be filed with the clerk of the county commission or the clerk or recorder of the municipality, as the case may be, and be made available for inspection by interested persons before the meeting.

(d) Notwithstanding any other contrary provision of this article, nothing in this article shall modify:

(1) The jurisdiction of the Public Service Commission to determine the convenience and necessity of the construction of utility facilities, to resolve disputes between utilities relating to which utility should provide service to a district or otherwise to regulate the orderly development of utility infrastructure in the state; or

(2) The authority of the Infrastructure and Jobs Development Council as to the funding of utility facilities to the extent that loans, loan guarantees, grants or other funding assistance from a state infrastructure agency are involved.

§16-13E-5. Notice to property owners before creation or expansion of community enhancement district and construction or acquisition of project; form of notice; affidavit of publication.

(a) Before the adoption or enactment of an order or ordinance creating a community enhancement district, the governing body shall cause notice to be given to the owners of real property located within the proposed community enhancement district that such ordinance or order will be considered for adoption or enactment, as the case may be, at a public meeting of the governing body at a date, time and place named in the notice and that all persons at that meeting, or any adjournment thereof, shall be given an opportunity to protest or be heard concerning the adoption, enactment or rejection of the order or ordinance. At or after the meeting the governing body may amend, revise or otherwise modify the information in the petition for the community enhancement district or project as it may deem appropriate after taking into account any comments received at such meeting.

(b) The notice required in this section shall be published at least thirty days prior to the date of the meeting as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county or municipality in which the proposed community enhancement district is located. The notice shall be in the form of, or substantially in the form of, the following notice:

"NOTICE TO ALL PERSONS OWNING PROPERTY LOCATED WITHIN ................... (here describe the boundaries of the proposed community enhancement district) IN THE ...................... (county or municipality) OF .............. (name of county or municipality):

A petition has been presented to the ............................ (county commission, city council or other governing body) of the ................ (county or municipality) of .............. (name of county or municipality) requesting establishment of a community enhancement district under chapter sixteen, article thirteen-b of the Code of West Virginia to ................ (here describe the project both within and outside of the proposed community enhancement district to be financed, developed, constructed, acquired, extended or improved, or the lots or parcels of land which may be protected, in the case of a flood relief project) in ................. (name of county or municipality) by ............... (here provide general description of the project) as the ................ (county commission, city council or other governing body) may deem proper and to assess the total cost (or, if the assessments are only necessary to pay for part of the total cost, the approximate percentage of the total cost) of such improvement on the property. A copy of the petition is available in the office of the .......... (name of clerk or recorder) for review by the public during regular office hours.

The petition to create a community enhancement district and to make such improvements, and estimates therefor, will be considered by the ................... (county commission, city council or other governing body) at a public meeting to be held on the ....... day of ...................., ......................, at .......m. at ............................... Any owner of property whose property may be affected by the creation of the above-described community enhancement district, and any person whose property is not located within said community enhancement district but wishes his or her property to be included, will be given an opportunity, under oath, to protest or be heard at said meeting or any adjournment thereof:

............................ (name of clerk or recorder)

.................................. (official position)."

(c) An affidavit of publication of the notice made by the newspaper publisher, or a person authorized to do so on behalf of such publisher, and a copy of the notice shall be made part of the minutes of the governing body and spread on its records of the meeting described in the notice. The service of said notice upon all persons owning any interest in any property located within the proposed community enhancement district shall conclusively be deemed to have been given upon the completion of such newspaper publication.

(d) The petitioners shall bear the expense of publication of the notice and the meeting, as requested by subsection (e) of this section.

(e) After the public meeting and before the governing body may adopt or enact an order or ordinance creating a community enhancement district, the governing body shall mail a true copy of the proposed order or ordinance creating the community enhancement district to the owners of real property in said district. Unless waived in writing, any petitioning owner of real property shall have thirty days from mailing of the proposed ordinance or order in which to withdraw his or her signature from the petition in writing prior to the vote of the governing body on such ordinance or order. If any signatures on the petition are so withdrawn, the governing body may pass the proposed ordinance or order only upon certification by the petitioners that the petition otherwise continues to meet the requirements of this article. If all petitioning owners of real property waive the right to withdraw their signatures from the petition, then the governing body may immediately adopt or enact the ordinance or order.

§16-13E-6. Creation of community enhancement district; community enhancement district to be a public corporation and political subdivision; powers thereof; community enhancement boards.

(a) Each community enhancement district shall be created by adoption or enactment of an order or ordinance.

(b) From and after the date of the adoption or enactment of the order or ordinance creating a community enhancement district, it shall thereafter be a public corporation and political subdivision of this state, but without any power to levy or collect ad valorem taxes. Each community enhancement district is hereby empowered and authorized, in addition to any other rights, powers and authorities conferred upon it in this article or elsewhere in this code, to:

(1) Acquire, own and hold, in its corporate name, by purchase, lease, right of eminent domain, gift or otherwise, such property, both real and personal and other interests in real estate, or any other property, whether tangible or intangible, as may be necessary or incident to the planning, financing, development, construction, acquisition, extension, improvement and completion of a project;

(2) Design, plan, finance, develop, construct, acquire, extend, improve and complete one or more projects and assess the cost of all or any portion of a project on real property located within the community enhancement district;

(3) Sue or be sued;

(4) Establish a bank account or accounts in its name;

(5) Enter into agreements or other transactions with any person or governmental agency necessary or incident to the development, planning, construction, acquisition or improvement of a project or for the operation, maintenance or disposition of a project or for any other services required by a project;

(6) Annually, on or before June 7, certify to the sheriff of the county in which the property is located the assessments granted against all property in the district for inclusion in the tax ticket;

(7) Expend funds to acquire, or construct part of a project on property located outside of a community enhancement district, and for any work undertaken thereon, as may be necessary or incident to the completion of a project;

(8) Enter into agreements with one or more counties, municipalities, public service districts or community enhancement districts to plan, develop, construct, acquire or improve a project jointly;

(9) Accept appropriations, gifts, grants, bequests and devises and use or dispose of the same to carry out its corporate purpose;

(10) Make and execute contracts, releases, assignments, compromises and other instruments necessary or convenient for the exercise of its powers, or to carry out its corporate purpose;

(11) Have a seal and alter the same;

(12) Raise funds by the issuance and sale of assessment bonds;

(13) Obtain options to acquire real property, or any interest therein, by purchase, lease or otherwise, which is found by the board to be suitable as a site, or part of a site, for the construction of a project;

(14) Pledge funds generated by assessments in a district or proceeds from the sale of assessment bonds to payment of debt service on tax increment financing obligations issued under article eleven-b, chapter seven of this code for the period of time determined by the community enhancement board; and

(15) Take any and all other actions consistent with the purpose of this article and not in violation of the Constitution of this state as may be necessary or incident to the construction and completion of a project.

(c) The powers of each community enhancement district shall be vested in and exercised by a community enhancement board which shall be composed of five members, four of whom shall be appointed by the governing body of the county or municipality in which the community enhancement district is located and one of whom shall be the sheriff or his or her designee of the county or the treasurer or his or her designee of the municipality (or such other person serving in an equivalent capacity if there is no treasurer), as the case may be, in which the community enhancement district is located. At least three members of the board shall be residents of the assessment district: Provided, That should less than three persons reside within the boundaries of the community enhancement district, then at least three members of the board shall be residents of the county or municipality, as the case may be: Provided, however, That if no persons reside within the boundaries of the community enhancement district then at least three members must be approved by the owner or owners of the land. No more than three initial members of the board may be from the same political party.

(d) The four members appointed by the governing body shall be appointed for overlapping terms of four years each and thereafter until their respective successors have been appointed and have qualified. For the purpose of initial appointments, one member shall be appointed for a term of four years; one member shall be appointed for a term of three years; one member shall be appointed for a term of two years; and one member shall be appointed for a term of one year. Members may be reappointed for any number of terms. Before entering upon the performance of his or her duties, each member shall take and subscribe to the oath required by section five, article IV of the Constitution of this state. Vacancies shall be filled by appointment by the governing body of the county or municipality creating the assessment district for the unexpired term of the member whose office shall be vacant and such appointment shall be made within thirty days of the occurrence of such vacancy. Any such member may be removed by the governing body which appointed such member in case of incompetency, neglect of duty, gross immorality or malfeasance in office. Members shall be entitled to no more than $50 per meeting and reasonable expenses associated with their services.

(e) The board shall organize within thirty days following the first appointments and annually thereafter at its first meeting after January 1, of each year by selecting one of its members to serve as chairman, one to serve as treasurer and one to serve as secretary. The secretary, or his or her designee, shall keep a record of all proceedings of the board which shall be available for inspection as other public records and the treasurer, or his or her designee, shall maintain records of all financial matters relating to the community enhancement district, which shall also be available for inspection as other public records. Duplicate records shall be filed with the clerk or recorder, as the case may be, of the county or municipality which created the community enhancement district and shall include the minutes of all board meetings. The secretary and treasurer shall perform such other duties pertaining to the affairs of the community enhancement district as shall be prescribed by the board.

(f) The members of the board, and the chairman, secretary and treasurer thereof, shall make available to the governing body responsible for appointing the board, at all times, all of its books and records pertaining to the community enhancement district's operation, finances and affairs for inspection and audit. The board shall meet at least semiannually.

(g) A majority of the members of the board constitutes a quorum and meetings shall be held at the call of the chairman.

(h) Staff, office facilities and costs of operation of the board may be provided by the county or municipality which created the community enhancement district or by contract and said costs of operations shall be funded from assessments collected within the district.

(i) The chairman shall preside at all meetings of the board and shall vote as any other members of the board, but if he or she should be absent from any meeting the remaining members may select a temporary chairman, and if the member selected as chairman resigns as such or ceases for any reason to be a member of the board, the board shall select one of its members as chairman to serve until the next annual organizational meeting.

(j) The board shall, by resolution, determine its own rules of procedure, fix the time and place of its meetings and the manner in which special meetings may be called. The members of the board shall not be personally liable or responsible for any obligations of the assessment district or the board but are answerable only for willful misconduct in the performance of their duties.

(k) The official name of a community enhancement district created under the provisions of this article may contain the name of the county or municipality, as the case may be, in which it is located.

(l) Notwithstanding any provision in this code to the contrary, the power and authority hereby conferred on community enhancement districts may extend within the territory of a public service district created under section two, article thirteen-a of this chapter.

§16-13E-7. Provisions for construction of a project.

(a) After the creation of a community enhancement district and the appointment of the board thereof, the board shall provide by resolution for the construction of the project and shall also provide in the same or subsequent resolutions for the supervision of such work by a professional engineer, governmental agency or any other person designated by the board. The board may provide for the construction of the project by one of the two following methods or any combination thereof:

(1) If there exists a governmental agency with the experience, knowledge and authority to construct the project, the board may elect to enter into a contract with such agency for the construction of all or part of the project or for any other service necessary or incident to the construction of the project, in which case such governmental agency shall be responsible for entering into contracts, subject to the board's approval, with such other persons as may be necessary or incident to the construction of the project; or

(2) The board may elect to enter into one or more contracts with such contractors and other persons as may be necessary or incident to the construction of the project, in which case it shall solicit competitive bids. All contracts for work on any project, the expense of which will exceed $50,000, shall be awarded to the lowest qualified responsible bidder who shall furnish a sufficient performance and payment bond. The board may reject any and all bids and if it rejects all bids, notices shall be published as originally required before any other bids may be received. The board may let portions of the work necessary to complete a project under different contracts.

(b) The resolution described in subsection (a) of this section shall also provide for payment of the cost of the project.

(c) Prior to the construction of the project, the board shall obtain such permits and licenses required by law for the construction and operation of the project.

(d) Prior to bidding a water, wastewater or storm water component of a project, the board shall submit the final plans and specifications to the utility or utilities who will provide the water, wastewater or storm water service for review and written approval.

§16-13E-8. Notice to property owners of assessments; correcting and laying assessments; report on project completion; credits.

(a) Prior to the issuance of assessment bonds or pledging any amounts to payment of tax increment financing obligation debt service, the board shall cause a report to be prepared describing each lot or parcel of land located within the community enhancement district and setting forth the total cost of the project based on the contract with the governmental agency, the accepted bid or bids, or a cost estimate certified by a professional engineer, and all other costs incurred prior to the commencement of construction and the future administrative costs, and the respective amounts chargeable upon each lot or parcel of land and the proper amount to be assessed against the respective lots or parcels of land with a description of the lots and parcels of land as to ownership and location. If two or more different kinds of projects are involved, the report shall set forth the portion of the assessment attributable to each respective project. The board shall thereupon give notice to the owners of real property to be assessed that on or after a date specified in the notice an assessment will be deemed granted against the property. The notice shall state that the owner of assessed property, or other interested party, may on said date appear before the board to move the revision or correction of the proposed assessment and shall show the total cost of the project, whether the assessments will pay for all or part of the total cost of the project and the lots or parcels of property to be assessed and the respective amounts to be assessed against such lots or parcels, with a description of the respective lots and parcels of land as to ownership and location. The notice shall also be published as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of the code, and the publication area for such publication is the assessment district. On or after the date so advertised, the board may revise, amend, correct and verify the report and proceed by resolution to establish the assessments as corrected and verified and shall certify the same to the governing body which created the district.

(b) During the pendency of the project, the board may decrease the amount of the assessments certified to the county sheriff for collection following the June 7 certification of those assessments by the community enhancement district to the sheriff as provided by subdivision (6), subsection (b), section six of this article, upon a finding or determination by the community enhancement board that the decrease is necessary or appropriate as the total cost of the project is less than projected or that the need for the assessment amount has decreased under the circumstances, and so certify to the sheriff of the county where the property is located. The modified assessment shall be granted against all property in the district for inclusion in the tax ticket or the preparation of modified tax tickets by that sheriff for the affected parcels.

(c) Upon completion of a project, the board shall prepare a final report certifying the completion of the project and showing the total cost of the project and whether the cost is greater or less than the cost originally estimated. If the total cost of the project is less or greater than the cost shown in the report prepared prior to construction, the board may revise the assessment charged on each lot or parcel of land pursuant to subsection (a) of this section to reflect the total cost of the project as completed, and in so doing shall, in the case of an assessment increase only, follow the same procedure with regard to notice and providing each owner of assessed property the right to appear before the board to move for the revision or correction of such proposed reassessment as required for the original assessment. If an assessment is decreased, the board shall, by resolution and written notice to the sheriff of the county in which the community enhancement district is located, cause the next installment or installments of assessments then due and payable by each affected property owner to be reduced pro rata, and shall provide written notice to such property owners of the amount of such decrease by the deposit of such notice in the United States mail, postage prepaid.

(d) The value of the projects financed with the assessments shall be treated as a credit toward any impact fees related to the service or services provided levied under article twenty, chapter seven of this code.

§16-13E-9. Exemption of public property from assessments.

No lots or parcels of land owned or controlled by the United States, this state, any municipality, county, Board of Education or other public body shall be subject to any assessments.

§16-13E-10. Assessment bonds; sinking fund for assessment bonds; tax exemption.

(a) For constructing or acquiring any project authorized by this article, and also for reimbursing or paying the costs and expenses of creating the district, the board of any such district is hereby authorized to borrow money, from time to time, and in evidence thereof issue the bonds of such district, payable from the proceeds of the assessments granted under this article. Such bonds shall be issued in one or more series, may bear such date or dates, may mature at such time or times not exceeding thirty-five years from their respective dates, shall be fully registered as to principal and interest in the name of the bondholder with a certificate of authentication attached thereto, may bear interest at such rate or rates not exceeding eighteen percent per annum, may be payable at such times, may be executed in such manner, may be payable at such place or places, may be subject to such terms of redemption with or without premium, may be declared or become due before maturity date thereof, may be authenticated in any manner, and, upon compliance of such conditions, may contain such terms and covenants as provided by the resolution or resolutions of the board. All such bonds shall be, and shall be treated as, negotiable instruments for all purposes. Bonds bearing the signatures of officers and offices on the dates of the signing thereof shall be valid and binding for all purposes notwithstanding that before the delivery thereof any or all such persons whose signatures appear thereon shall have ceased to be such officers. Notwithstanding the requirements or provisions of any other law, any such bonds may be negotiated or sold in such manner at such time or times and at such prices or prices as is found by the board to be most advantageous. Any resolution or resolutions providing for the issuance of such bonds may contain covenants and restrictions upon the issuance of additional bonds thereafter as may be deemed necessary or advisable for the assurance of the payment of the bonds thereby authorized.

(b) At or before the time of issuance of any bonds under this article, the board shall by resolution provide for the creation of a sinking fund and for payments in succession fund from the assessments granted pursuant to this article in such amount as shall be sufficient to pay the accruing interest and retire the bonds at or before the time each will respectively become due and to establish or maintain reserves therefor. All sums which are or should be, in accordance with such provisions, paid into such sinking fund shall be used solely for payment of interest and for the retirement of such bonds at or prior to maturity as may be provided or required by such resolution.

(c) The property, including leased property, of the community enhancement district and bonds and any income or interest thereon issued by the community enhancement district are exempt from taxation by the State of West Virginia and other taxing bodies of the state.

§16-13E-10a. Extension of vesting period for land development plans and plats; approval of phases.

(a) The five-year vesting period is extended to the development concept vesting period with respect to the development concept if: (i) The land development will be wholly contained within a community enhancement district; and (ii) either:

(A) Such community enhancement district has been created and is in existence, and such facts have been communicated to the planning commission, at the time the planning commission approves the subject land development plan and plat (whether such plan and plat is denominated final, preliminary, phased preliminary, concept or otherwise); or

(B) Such community enhancement district is created after the initial approval of the subject land development plan and plat and the planning commission subsequently ratifies the approval of such plan and plat with the knowledge of the existence of the community enhancement district; and (iii) assessment bonds or tax increment financing obligations payable from or secured by, in whole, or in part, assessments against real property located within the district are issued within the five-year vesting period.

(b) Nothing herein shall be deemed to extend or otherwise modify the five-year vesting period with respect to items other than those included in the development concept.

(c) When a land development will be wholly contained within a community enhancement district, a land development plan and plat that otherwise pertains to and seeks approval of only a portion or phase of the land development may also contain the development concept for a greater portion, multiple phases or the entirety of the land development if the plan and plat expressly so provides. Approval of a land development plan and plat by the planning commission constitutes approval of, and the establishment of a vested property right in, the entire development concept contained in the land development plan and plat.

(d) This section shall apply to all community enhancement districts, regardless of whether created prior or subsequent to enactment of this section.

§16-13E-11. Indebtedness of assessment district.

No Constitutional or statutory limitation with respect to the nature or amount of or rate of interest on indebtedness which may be incurred by municipalities, counties or other public or governmental bodies shall apply to the indebtedness of a community enhancement district. No indebtedness of any nature of a community enhancement district shall constitute an indebtedness of any municipality or county creating and establishing such community enhancement district or a charge against any property of said municipalities or counties but shall be paid solely from the assessments which the community enhancement district is authorized to impose on the owners of the property within the district by this article. No indebtedness or obligation incurred by any community enhancement district shall give any right against any member of the governing body of any municipality or any member of the county commission of any county or any member of the community enhancement board of any community enhancement district.

§16-13E-12. Payment of assessments to sheriff; report to community enhancement district; collection of delinquent assessments.

The assessments imposed pursuant to this article will not be considered to be ad valorem taxes or the equivalent of ad valorem taxes under any other provision of this code: Provided, That for the exclusive purposes of collection of the assessments imposed under section eight of this article and enforcement of the assessment liens created by section thirteen of this article, the provisions of chapter eleven-a of this code shall apply as if the assessments were taxes as that term is defined in section one, article one of that chapter. The sheriff shall promptly deposit all assessments upon receipt thereof in a segregated account established by the sheriff for such purpose and shall maintain a record of the assessments so received. Each month, the sheriff shall pay all moneys collected for the community enhancement district into the district treasury or if the sheriff consents to a trustee for the benefit of bondholders if assessment bonds are issued by the community enhancement district. Payments to the community enhancement district shall be made in the time set forth in section fifteen, article one, chapter eleven-a of this code and the sheriff shall be entitled to take a commission for collection of the assessments on behalf of the community enhancement district, as provided in section seventeen of said article. For each tax year, the sheriff will prepare and deliver to the board of each community enhancement district located in the county, a statement setting forth the aggregate amount of assessments received for such district and the name of any property owner who failed to pay the assessments due and payable for the period in question. This report shall be due on or before August 1, of the following year. The sheriff is authorized to collect delinquent assessments and enforce the liens created in section thirteen of this article as if those assessments were delinquent real property taxes and the liens are tax liens using the enforcement tools provided in articles two and three, chapter eleven-a of this code.

§16-13E-13. Liens; recording notice of liens; priority; release of lien; notice to future property owners.

(a) With the exception of property exempt from assessment pursuant to section nine of this article, there shall be a lien on all real property located within the community enhancement district for the assessments imposed by section eight of this article, which lien shall attach on the date specified in the notice to property owners. A notice of the liens of said assessments referring to the assessing resolution and setting forth a list of the property assessed, described respectively as to amounts of assessment, ownership and location of the property, shall be certified, by the chairman and secretary of the board, to the clerk of the county commission of the county wherein the project is located. The county clerk shall record the notice of such lien in the appropriate trust deed book or other appropriate county lien book and index the same in the name of each owner of property assessed. From the date of an assessment, the trustee, for the benefit of bondholders if assessment bonds are issued by the community enhancement district, and/or the district shall have such lien and shall be entitled to enforce the same in its, his or their name to the extent of the amount, including principal and interest and any penalty due for any failure to pay an installment when due, of such assessments and against the property to which the assessment applies, as to any assessment not paid as and when due. The trustee or the district, as an alternative to the enforcement provision set forth in section twelve of this article, are granted all legal remedies as are necessary to collect the assessment. Such assessments shall be and constitute liens for the benefit of the community enhancement district or of the trustee, for the benefit of bondholders if assessment bonds are issued by the community enhancement district, upon the respective lots and parcels of land assessed and shall have priority over all other liens except those for land taxes due the state, county and municipality and except any liens for preexisting special assessments provided under this code. If any assessment is revised in accordance with this article, the lien created by this section shall extend to the assessment so revised and shall have the same priority as the priority of the lien created upon the laying of the original assessment. Such assessments and interest thereon shall be paid by the owners of the property assessed as and when the installments are due. Following the payment in full of any assessment bonds including any interest thereon, the chairman and secretary of the board shall execute a release of all liens and shall certify the same to county clerk for recordation.

(b) Following the grant of an assessment on property as provided in this article, the seller of such property shall provide reasonable disclosure to the buyer in the real estate contract that an assessment has been granted on the property, the amount of the assessment and the duration of the assessment.

§16-13E-14. Liberal construction.

This article being necessary for the public health, safety and welfare and economic development, it shall be liberally construed to effectuate the purpose hereof.

§16-14-1.

Repealed.

Acts, 2009 Reg. Sess., Ch. 175.

§16-14-2.

Repealed.

Acts, 2009 Reg. Sess., Ch. 175.

§16-14-3.

Repealed.

Acts, 2009 Reg. Sess., Ch. 175.

§16-14-4.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-5.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-6.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-7.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-8.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-9.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-10.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-11.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-12.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-13.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-14.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-15.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-16.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-14-17.

Repealed.

Acts, 1977 Reg. Sess., Ch. 102.

§16-15-1. Definitions.

The following terms, wherever used or referred to in this article, shall have the following respective meanings, unless in any case a different meaning clearly appears from the context:

(1) "Affiliate" means any corporation, entity, partnership, venture, syndicate or arrangement in which a housing authority participates by holding an ownership interest or participating in its governance, including both controlled and noncontrolled affiliates as herein defined.

(2) "Affordable housing" means dwelling units that may be rented or purchased, as the case may be, by persons of eligible income, as defined herein.

(3) "Annual sinking fund payment" means the amount of money specified in the resolution or resolutions authorizing term bonds as payable into a sinking fund during a particular calendar year for the retirement of term bonds at maturity after such calendar year, but shall not include any amount payable by reason only of the maturity of a bond.

(4) "Area of operation" means the geographical area within which a housing authority owns or operates housing developments or administers other housing programs including any city, county or combination thereof in which it was operating on the effective date of this article.

(5) "Arrangement" means a legal relationship with another party that may include, but not be limited to, a general or limited partnership; joint venture; syndicate or syndication; corporation; limited liability cooperative, corporation or partnership; an unincorporated association; a cooperative; a consortium; and all other structures, organizations, and forms of legal relationships with third parties.

(6) "Authority" or "housing authority" means a corporate body organized in accordance with the provisions of this article for the purposes, with the powers, and subject to the restrictions hereinafter set forth. Where the context requires or permits, this term shall be deemed to include regional housing authorities and/or controlled affiliates of a housing authority.

(7) "Bond" or "bonds" means any bonds, notes, interim certificates, debentures, or other obligations issued by an authority pursuant to this article.

(8) "City" means and includes any political subdivision of this state, whether incorporated or unincorporated, known as a city, municipality, town or village. With respect to the provisions of other sections of this article and their application to housing authorities of counties, the term "city" shall be construed as referring to a county unless a different meaning clearly appears from the context.

(9) "Clerk" means the clerk or recorder of the city or the clerk of the county, as the case may be, or the officer charged with the duties customarily imposed on the clerk or recorder.

(10) "Commissioner" means one of the members of the governing board of a housing authority appointed in accordance with the provisions of this article.

(11) "Community facilities" means lands, buildings and equipment, real and personal property suitable for recreational, or social assembly, for educational, health, or welfare purposes and other necessary activities for the use and benefit of the occupants of housing developments and the public.

(12) "Controlled affiliate" means any affiliate of a housing authority: (i) In which commissioners, officers, employees and agents of the authority constitute a majority of the governing body; or (ii) in which the authority holds a majority of the ownership interests.

(13) "Council" means the chief legislative body of the city.

(14) "County" means and includes any political subdivision of this state known as a county.

(15) "Development" or "housing development" means and includes all dwellings and associated appurtenances, including real and personal property, and all other facilities and improvements of every kind and description, which a housing authority may own or operate or in which it may hold an interest under the provisions of this article, all land upon which such dwellings, appurtenances, and facilities are situate; all work and activities undertaken by a housing authority or others relating to the creation of such property; all tangible and intangible personal property relating thereto, including all leases, licenses, agreements, and other instruments and all rights and obligations arising thereunder, establishing or confirming ownership, title, or right of use or possession in or to any such property by a housing authority, all as more particularly described and authorized in this article.

(16) "Farmers of low or moderate income" means persons or families who at the time of their admission to occupancy in a dwelling of the authority: (A) Live under unsafe and unsanitary housing conditions; (B) derive their principal income from operating or working upon a farm; and (C) had an aggregate average annual net income for the three years preceding their admission that was less than the amount determined by the authority to be necessary, within its area of operation, to enable them, without financial assistance, to obtain decent, safe and sanitary housing.

(17) "Governing body" means, in the case of a city, the council of the city, and in the case of a county, the county commission.

(18) "Government" means the state and federal governments and any subdivisions, authority or instrumentality, corporate or otherwise, of either of them.

(19) "Guest" means any person, not a resident of the development, who is present within the development, or within a dwelling in a development, as an invitee of or otherwise with the express or implied consent of a resident of the development or dwelling.

(20) "Hold an interest" means ownership or control of, or participation in an arrangement with respect to, a development by a housing authority or any affiliate thereof.

(21) "Low-cost housing" shall include any housing accommodations which are or are to be rented at not in excess of a maximum rate per room, or maximum average rate per room, which shall be specified or provided by the housing authority of the city in which such housing accommodations are or are to be located, or the Legislature, or a duly constituted agency of the state, or of the United States of America.

(22) "Mayor" means the chief executive of the city, whether the official designation of his office be mayor, city manager or otherwise: Provided, That the term "mayor" may also be the chief elected officer of the municipality regardless of whether or not the corporate charter provides for a city manager appointed by the city council who is the chief executive officer.

(23) "Noncontrolled affiliate" means affiliate in which a housing authority participates, but does not constitute a majority of the governing body nor have a majority ownership interest.

(24) "Obligee of the authority" or "obligee" means any bondholder, trustee or trustees for any bondholders, or lessor demising to an authority property used in connection with a housing development, or any assignee or assignees of the lessor's interest or any part thereof, and the federal government when it is a party to any contract with the authority.

(25) "Person" means a family and, where the context so requires, a household.

(26) "Persons of eligible income" means individuals or families as defined by a public housing authority within the applicable local, state and federal funding guidelines.

(27) "Public agency" means and includes: (i) Any county; city; village; township; any school, drainage, tax, improvement or other district; any department, division, or political subdivision of this state or another state; any housing authority, housing finance authority, or housing trust of this state or another state; and any other agency, bureau, office, authority, or instrumentality of this state or another state; (ii) any board, agency, commission, division or other instrumentality of a city or county; and (iii) any board, commission, agency, department, or other instrumentality of the United States, or any political subdivision or governmental unit of any of them.

(28) "Regional housing authority" means a housing authority formed by two or more cities, counties or housing authorities pursuant to the authority provided in sections three-a and three-b of this article.

(29) "Resident" means a person residing in a development of a housing authority, with the consent of such authority, according to its policies, rules and procedures.

(30) "Slum clearance" means the removal of housing conditions which shall be considered by the housing authority of the city in which such conditions exist to be unsanitary or substandard or a menace to public health.

(31) "State" means the State of West Virginia and its duly constituted government.

§16-15-1a.

Repealed.

Acts, 1998 Reg. Sess., Ch. 176.

§16-15-2. Legislative declaration of necessity for creation of housing authority corporations.

It is hereby declared as a matter of legislative determination that in order to promote and protect the health, safety, morals and welfare of the public, it is necessary in the public interest to provide for the creation of public corporate bodies to be known as housing authorities, and to confer upon and vest in said housing authorities all powers necessary or appropriate in order that they may engage in low and moderate cost housing development and slum clearance projects; and that the powers herein conferred upon the housing authorities, including the power to acquire and dispose of property, to remove unsanitary or substandard conditions, to construct and operate housing developments and to borrow, expend and repay moneys for the purpose herein set forth, are public objects essential to the public interest.

§16-15-3. City and county housing authorities created; when to transact business or exercise powers; determination of need for housing authority; resolution of governing body proof of establishment; appointment, term, expenses and removal of commissioners.

(a) In each city and in each county there is hereby created a housing authority which shall be a public body corporate and politic. No authority hereby created shall transact any business or exercise its powers hereunder until or unless the governing body of the city or the county, by proper resolution, determines that there is need for an authority: Provided, That nothing contained herein shall be construed as creating an additional housing authority in a city where a housing authority has been created pursuant to prior law, but each housing authority shall continue as a public body corporate and politic and shall have the area of operation defined in section one of this article for a city or county housing authority. Each housing authority created pursuant to this section shall adopt a name for all legal and operating purposes.

(b) The determination as to whether or not there is a need for an authority: (1) May be made by the governing body on its own motion; or (2) shall be made by the governing body upon the filing of a petition signed by twenty-five residents of the city or county asserting that there is need for an authority to function in the city or county and requesting that the governing body so declare. The governing body shall adopt a resolution declaring that there is need for a housing authority in the city or county if it finds: (1) That unsanitary or unsafe inhabited dwellings exist in the city or county; or (2) that there is a shortage of safe or sanitary dwellings in the city or county available to persons of low or moderate income at rental rates or purchase prices they can afford. In determining whether dwellings are unsafe or unsanitary the governing body may take into consideration the degree of overcrowding, the percentage of land coverage, the light, air, space and access available to the inhabitants of the dwellings, the size and arrangement of the rooms, the sanitary facilities, and the extent to which conditions exist in the dwellings which endanger life or property by fire or other cause.

(c) In any suit, action or proceeding involving the validity or enforcement of or relating to any contract of the authority, the authority shall be conclusively deemed to have become established and authorized to transact business and exercise its powers hereunder upon proof of the adoption of a resolution by the governing body declaring the need for the authority. An adopted resolution shall be deemed sufficient if it declares that there is need for an authority and finds in substantially the foregoing terms (no further detail being necessary) that either or both of the above-enumerated conditions exist. A copy of a resolution duly certified by the clerk shall be admissible in evidence in any suit, action or proceeding.

(d) When the governing body of a city adopts a resolution as aforesaid, it shall promptly notify the mayor of the adoption. Upon receiving the notice, the mayor shall appoint five persons as commissioners of the authority created for the city. When the governing body of a county adopts a resolution as aforesaid, it shall appoint five persons as commissioners of the authority created for the county. The commissioners who are first appointed shall be designated to serve for terms of one, two, three, four and five years, respectively, from the date of their appointment. Thereafter commissioners shall be appointed for a term of office of five years, except that all vacancies shall be filled for the unexpired term. No commissioner of an authority may be an officer or employee of the city or county for which the authority is created. A commissioner shall hold office until his or her successor has been appointed and has qualified, unless sooner removed according to this article. A certificate of the appointment or reappointment of any commissioner shall be filed with the clerk and shall be conclusive evidence of the due and proper appointment of a commissioner. A commissioner shall receive no compensation for his or her services, but he or she shall be entitled to the necessary expenses, including traveling expenses, incurred in the discharge of his or her duties.

(e) For inefficiency or neglect of duty or misconduct in office, a commissioner of an authority may be removed by the mayor or by the county commission. A commissioner shall be removed only after being given a copy of the charges and notice of a hearing. The charges shall be sent to the commissioner at least ten days prior to the hearing and shall notify the commissioner that he or she has an opportunity to be heard in person or by counsel. In the event of the removal of any commissioner, a record of the proceedings, together with the charges and findings thereon, shall be filed in the office of the clerk. The powers of each authority shall be vested in its commissioners.

§16-15-3a. Regional housing authorities.

(a) Any two or more cities or counties, or any combination thereof, may, by resolution of their separate governing bodies, establish a regional housing authority, by adopting a joint resolution declaring that there is a need for a regional housing authority to provide decent, safe and sanitary housing that is affordable to persons of low and moderate income residing in a multijurisdictional area and that this need would be more efficiently served by the establishment of a regional housing authority: Provided, That any authority in existence prior to the effective date of this article that is providing services outside of the city or county boundaries will continue to have jurisdiction in the areas where the authority is providing services on the effective date of this article.

(b) Upon adoption of a resolution by two or more cities or counties, or a combination thereof, a regional housing authority shall be established and, except as otherwise provided in this article, the regional housing authority shall have perpetual existence, unless dissolved in accordance with law. Each regional housing authority established pursuant to this section, shall adopt a name for all legal and operating purposes.

(c) A certified copy of the resolutions establishing a regional housing authority shall serve as conclusive evidence that the authority has been properly established, is authorized to transact business, and exercise its powers under this article.

(d) After a regional housing authority has been established, any additional city, county or housing authority may elect to participate as a member of the regional housing authority, upon adoption of a resolution to that effect: Provided, That a majority of the existing commissioners of the regional housing authority and all participating political subdivisions, by action of their respective governing bodies, shall consent to the additional member or members.

(e) Any city or county may withdraw from participation in the regional housing authority by resolution of its governing body. Any withdrawal from participation shall be subject to the following conditions:

(1) The regional housing authority has no bonds, notes, or other obligations outstanding, or adequate provision for payment of bonds, notes, or other obligations, by escrow or otherwise, has been made. Past performance without breach or default of an obligation secured only by one or more developments or the income thereof shall be deemed to be "adequate provision";

(2) The withdrawing city or county shall make adequate provision for the performance of all of its outstanding obligations and responsibilities as a participant in the regional housing authority;

(3) The withdrawing city or county shall give six months written notice to the regional housing authority and all other cities and counties participating therein; or

(4) The commissioner or commissioners appointed by the withdrawing city or county shall be deemed to have resigned as of the date upon which the withdrawal is effective. Vacancies on the board of commissioners created by withdrawal of a city or county shall be filled in such manner as the cities and counties remaining as participants shall agree.

Notwithstanding the withdrawal of any participating city or county, the legal title to and operating responsibility for any development located outside the area of operation of the regional housing authority remaining after such withdrawal has occurred shall continue to be vested in the regional housing authority, unless a different arrangement is made.

(f) If only one city or county remains as a participant in any regional housing authority, the regional housing authority shall become the housing authority of the remaining city or county at the discretion of its governing body, or the regional housing authority shall be dissolved and its assets and liabilities transferred to another existing housing authority or to a city or county or other public agency.

§16-15-3b. Consolidated housing authorities.

(a) Two or more cities or counties may, by joint resolution of their governing bodies, merge their housing authorities to establish a regional housing authority: Provided, That each city or county considering the merger shall hold a public hearing in its area of operation prior to adopting the joint resolution.

(b) The joint resolution must provide for:

(1) The transfer of assets and liabilities and the performance of all outstanding obligations and responsibilities;

(2) The membership, terms and manner of appointment of commissioners of the regional housing authority; and

(3) The preparation, adoption and implementation of a plan of merger.

(c) Consolidations by merger pursuant to this section are subject to all of the provisions of article eleven, chapter thirty-one-e of this code except where inconsistent with the provisions of this article and except as to those provisions of article eleven, chapter thirty-one-e which have no practical application.

(d) A regional housing authority established pursuant to this section acquires and succeeds to all rights, obligations, duties and privileges of the housing authorities of which it is a successor, and will be considered for all purposes a regional housing authority established pursuant to section three-a of this article and subject to all applicable provisions of this article.

§16-15-4. Persons prohibited from acquiring interest in property or contracts; disclosure of prior interest.

No commissioner or employee of an authority shall acquire any interest direct or indirect in any development or in any property included or planned to be included in any development, nor shall he or she have any interest direct or indirect in any contract or proposed contract for materials or services to be furnished or used in connection with any development. If any member or employee of any authority owns or controls an interest direct or indirect in any property included in any development, which was acquired prior to his or her appointment or employment, he or she shall disclose the same in writing to the authority. The disclosure shall be entered upon the minutes of the authority.

§16-15-5. Organization, officers and employees of housing authority.

As soon as possible after the establishment of an authority the commissioners shall organize for the transaction of business by choosing from among their number a chairman and a vice-chairman and by adopting bylaws and rules and regulations suitable to the purposes of this article. Three commissioners shall constitute a quorum for the purpose of organizing the authority and conducting the business thereof. The commissioners shall, from time to time, select and appoint such officers and employees, including engineering, architectural and legal assistants, as they may require for the performance of their duties, and shall prescribe the duties and compensation of each officer and employee.

§16-15-6. Commissioner to receive no compensation; reimbursement for necessary expenditures.

No commissioner shall receive any compensation whether in form of salary, per diem allowances or otherwise, for or in connection with his or her services as commissioner. Each commissioner shall, however, be entitled to reimbursement, to the extent of appropriations or other funds available therefor, for any necessary expenditures in connection with the performance of his or her general duties or in connection with the construction or operation of any development. The authority may allocate such expenses among its developments in such manner as it may consider proper.

§16-15-7. Authority a body corporate and politic; powers; investigations or examinations.

(a) An authority is a body both corporate and politic, exercising public powers, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this article, including the following powers in addition to others granted:

(1) To investigate living and housing conditions in the authority's area of operation and the means and methods of improving the conditions;

(2) To determine whether unsanitary or substandard housing conditions exist;

(3) To study and make recommendations concerning the city or county plan in relation to the problems of clearing, replanning, redevelopment and reconstruction of areas in which unsanitary or substandard conditions exist, and the providing of housing accommodations for persons of low and moderate income, and to cooperate with any city, county or regional planning agency, to prepare, carry out and operate developments;

(4) To provide for the construction, reconstruction, redevelopment, improvement, alteration or repair of any development or any part of a development;

(5) To take over by purchase, lease or otherwise any development undertaken by any government;

(6) To act as agent for the federal government in connection with the acquisition, construction, operation or management of a development or any part of a development;

(7) To arrange with the city or with a government for the furnishing, planning, replanning, opening or closing of streets, roads, roadways, alleys or other places or facilities, or for the acquisition by the city, county, state or federal government or any agency, instrumentality or subdivision thereof, of property, options or property rights or for the furnishing of property or services in connection with a development;

(8) To sell, lease or rent any of the housing or other accommodations of any of the lands, buildings, structures or facilities embraced in any development, and to establish and revise the rents or charges therefor;

(9) To enter upon any building or property in order to conduct investigations or to make surveys or soundings; to purchase, lease, obtain options upon, acquire by eminent domain or otherwise, sell, exchange, transfer, assign or mortgage any property real or personal or any interest therein;

(10) To acquire any property real or personal or any interest therein from any person, firm, corporation, or the city, county, state or federal government or any agency, instrumentality or subdivision thereof, by gift, grant, bequest or devise; to own, hold, clear and improve property; in its discretion, to insure or provide for the insurance of the property or operations of the authority against risks as the authority considers advisable;

(11) To borrow money upon its bonds, notes, debentures or other evidences of indebtedness, and to secure them by mortgages upon property held or to be held by it or by pledge of its revenues, or in any other manner;

(12) To invest any funds held in reserves or sinking funds, or any funds not required for immediate disbursement in property or securities in which savings banks may legally invest funds subject to their control;

(13) To sue and be sued;

(14) To have a seal, and to alter it;

(15) To have perpetual succession;

(16) To make and execute contracts and other instruments necessary or convenient to the exercise of the powers of the authority;

(17) To form and operate nonprofit corporations and other affiliates of every kind and description, which may be wholly or partially owned or controlled, for carrying out the purposes of this article and in connection with the exercise of any of the powers of a housing authority;

(18) To participate in cooperative arrangements with persons and for-profit entities whose purpose is solely that of pecuniary gain, as well as with nonprofit entities and persons who seek no pecuniary gain. The participation of a housing authority in any arrangement with other persons or entities, including for-profit persons and entities, may not cause any activity engaged in by the authority to be characterized as proprietary nor deprive the authority of any privilege or immunity otherwise existing under law;

(19) To participate as a general or limited partner, coventurer, shareholder, or otherwise as a principal, an investor, a lender, a guarantor, a contracting party, or in any other manner, all upon terms and conditions, and with rights and obligations, as the governing board of the housing authority shall, from time to time, in its discretion determine to be appropriate;

(20) To make and, from time to time, amend and repeal bylaws and rules not inconsistent with this article to carry into effect the powers and purposes of the authority;

(21) To conduct examinations and investigations and to hear testimony and take proof under oath at public or private hearings on any matter material for its information;

(22) To issue subpoenas requiring the attendance of witnesses or the production of documents and things, for the examination of witnesses who are out of the state or unable to attend before the authority, or excused from attendance;

(23) To pay, in whole or in part, for any person of eligible income the costs of preparation of any title instrument, deed of trust, note or security instrument, the costs of recording any title instrument, deed of trust, note or security instrument, and any impact fee levied pursuant to article twenty, chapter seven of this code, with the condition that in the event the person receiving a payment under this subdivision sells the property attributable to the payment within five years from receiving the payment, the person will repay the full amount of the payment to the authority; and

(24) To do all things necessary or convenient to carry out the powers given in this article.

(b) Any of the investigations or examinations provided for in this article may be conducted by the authority or by a committee appointed by it, consisting of one or more members thereof, or by counsel, or by an officer or employee specifically authorized by the authority to conduct it. Any member of the authority, its counsel, or any person designated by it to conduct an investigation or examination, shall have power to administer oaths, take affidavits and issue subpoenas.

§16-15-7a. Power of authority to include certain stipulations in contracts.

A housing authority, in addition to its other powers, shall have the power, notwithstanding any provisions of this code to the contrary, to include in any contract let in connection with a development, stipulations requiring that the contractor and any subcontractors comply with requirements as to minimum wages and maximum hours of labor, and comply with any conditions which the federal government may have attached to its financial aid of the development.

§16-15-7b. Joint undertakings by authorities; areas of operation.

(a) Any two or more authorities may join or cooperate with one another in the exercise of any or all of their powers for the purpose of financing, planning, undertaking, constructing or operating a housing development or developments located within the area of operation of any one or more such authorities or for the administration of other housing programs.

(b) The area of operation of a housing authority shall be one of the following:

(1) In the case of a housing authority established by a city, the authority's area of operation shall be the city and the area within ten miles from the territorial boundaries thereof. Depending upon the geographical location of the city, the area of operation may include portions of one or more counties. It may also include areas lying within the territorial boundaries of cities outside the city establishing the housing authority. In order to resolve territorial conflicts, the following rules shall apply:

(A) In the case of the housing authority's home county, it may operate outside of the area described in this subsection in the unincorporated areas of the home county without the need for the county's consent unless the home county has established its own housing authority. If the home county has established a housing authority, then the city's housing authority may operate outside the area described above only with the consent of the county housing authority;

(B) In the case of incorporated areas of a home county, the housing authority may only operate within the territorial boundaries thereof by consent of the other city and its housing authority, if any;

(C) In the case of unincorporated portions of counties other than the housing authority's home county, it may operate only with the consent of the governing body of the other county, regardless of whether the other county has established a housing authority;

(D) In the case of incorporated areas within other counties, it may operate only with the consent of the governing body of any city incorporating such areas, and, if the other city has also established its own housing authority, with the consent of the other housing authority;

(E) Notwithstanding any other provision of this section, a housing authority may, subject to the limitations stated in this article, provide rental assistance to persons residing outside the authority's area of operation as defined in this section.

For purposes of this section, the term "home county" means the county in which the city establishing the housing authority is situated.

(2) In the case of a housing authority established by a county, the authority's area of operation shall be all of the county except that portion which lies within the territorial boundaries of any city in which a housing authority has been established.

(3) In the case of a regional housing authority, the authority's area of operation shall be an area equivalent to the total areas of operation which the housing authorities, if created separately by political subdivisions establishing the regional housing authority, would have, when aggregated. The area of operation of a regional housing authority shall not include any area which lies within the territorial boundaries of any city or county in which a housing authority has been established and which city or county is not a participant in the regional authority: Provided, That the housing authority of the city or county and its governing body may consent to the operation of one or more developments by the regional housing authority within the city's or county's territorial boundaries.

(4) Whether due to changes in the boundaries of cities or counties which have established housing authorities, or the establishment of new housing authorities, or for any other reason, territories may exist that include the area of operation of two or more housing authorities. Such areas shall be areas of concurrent jurisdiction. No housing authority whose area of operation includes an area of concurrent jurisdiction shall construct, acquire or develop any new housing development within the area of concurrent jurisdiction without the written agreement of the other authority.

(5) Any housing development established by a housing authority pursuant to law shall continue to be maintained and operated by the housing authority establishing the development or its designee, unless the development is conveyed to another housing authority or to a city, county or other public agency or is otherwise disposed of in accordance with law.

(6) Notwithstanding the area of operation as defined herein, all housing authorities shall have the jurisdiction and authority to cooperate and contract with any other housing authorities and other public agencies within this state and any public agencies of any other state, with the federal government, and with any person, or entity, public or private, and wherever located, in order to carry out the purposes of this article. Such cooperation may include, but shall not be limited to, activities and operations conducted with the agreement of any public agency.

§16-15-8. Power to acquire lands, etc., by purchase or by right of eminent domain.

Whenever it shall be deemed necessary by an authority in connection with the exercise of its powers herein conferred to take or acquire any lands, structures or buildings or other rights, either in fee or as easements for any housing development or slum clearance, the authority may purchase the same directly or through its agent from the owner or owners thereof, or failing to agree with the owner or owners thereof, such authority may exercise the power of eminent domain in the manner provided for condemnation proceedings, in section eight, article one and sections nine and twelve, article two, chapter fifty-four of this code.

§16-15-9. Developments subject to ordinances, etc., of locality in which situated; restrictions on acquisition, etc., of property; securities need not be offered to sinking fund commission.

All developments of an authority shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the development is situated. No provisions with respect to the acquisition, operation or disposition of property by public bodies shall be applicable to an authority unless the Legislature shall specifically so state. No authority shall be required to offer its securities to the state sinking fund commission at any time, nor shall any authority be required to turn over any surplus or sinking funds to the state sinking fund commission.

§16-15-10. Amount and nature of indebtedness; rights of creditors.

Subject to the restrictions set forth in this article, the authority may incur any indebtedness and issue any obligations and give any security therefor which it may deem necessary or advisable in connection with any development undertaken by it. No statutory limitation with respect to the nature or amount of indebtedness which may be incurred by municipalities or other public bodies shall apply to indebtedness of an authority, unless the Legislature shall specifically so provide. No indebtedness of any nature of an authority shall constitute a debt or obligation of a municipality or the state or any other subdivision or authority or instrumentality thereof, or a charge against any property of such municipality, the state, or other subdivision, agency or instrumentality thereof. No obligation incurred by the authority shall give any right against any commissioner of such authority, but a commissioner shall be liable only for his own malfeasance. The rights of creditors of an authority shall be solely against such authority as a corporate body and shall be satisfied only out of property held by it in its corporate capacity, and the enforcement of such rights shall be subject to all the provisions of this article.

§16-15-11. Agreement with federal government providing for supervision and control of authority or development.

An authority may, in connection with the borrowing of funds, or otherwise, enter into any agreement with the federal government or any agency or subdivision thereof, providing for supervision and control of the authority or of any development, and containing such other covenants, terms and conditions as the authority may deem advisable.

§16-15-12. Report to mayor or county governing body.

At least once a year, an authority shall file with the mayor, or the county commission, as appropriate, a report of its activities for the preceding year, and shall make recommendations with reference to any legislation or other action as it deems necessary in order to carry out the purposes of this article.

§16-15-13. Community and economic development fund.

(a) The governing body of a housing authority may, by resolution, create a fund which may be available through gifts, contributions, grants, bequests, loans, loan proceeds or other sources. The fund shall be governed by and administered by the authority as a general purpose account separate and distinct from any other moneys, funds or accounts owned or managed by the housing authority in conjunction or cooperation with any local, state or federal governmental agency.

(b) The fund may be utilized to provide a source from which the authority may issue grants or loans to enhance community and economic development in the authority's area of operation. The grants and/or loans may include, but are not limited to, housing rehabilitation, redevelopment reconstruction, community improvement, home ownership, training and counseling for persons of eligible income, elimination of public health or safety hazards, repayment of the authority's bonds or loans and other like things which fulfill the purposes of this article.

(c) The authority shall have an audit of the fund preformed at the end of each fiscal year conducted in accordance with generally accepted accounting principles as part of the authority's annual audit established by the governing board.

§16-15-14. Tax and licensing exemptions.

(a) The authority shall be exempt from the payment of any taxes or fees to the state or any subdivision thereof, or to any officer or employee of the state or any subdivision thereof. The property of an authority shall be exempt from all local and municipal taxes. Bonds, notes, debentures and other evidences of indebtedness of an authority are declared to be issued for a public purpose and to be public instrumentalities and, together with interest thereon, shall be exempt from taxes.

(b) All representatives of a housing authority, acting within the scope of carrying out the business and conducting the affairs of a housing authority, shall be exempt from all licensing requirements imposed by any law with respect to the sale, rental or management of real property or the improvement or development thereof, including requirements imposing any fee or charge.

§16-15-15. Security for funds of authority deposited in bank.

In order to protect funds deposited by an authority, all banks, bankers, trust companies or other persons carrying on a banking business, organized under the laws of the state, are authorized to give to the authority an undertaking with such sureties as shall be approved by the authority, faithfully to keep and pay over upon the order of the authority any such deposits and agreed interest thereon, or in lieu of the said sureties, to deposit with the authority as collateral such securities and in such amounts as may be agreed upon with the authority pursuant to a collateral deposit agreement in form and terms satisfactory to the authority. The collateral to be deposited shall consist of securities in which savings banks may legally invest funds within their control.

§16-15-16.

Repealed.

Acts, 1941 Reg. Sess., Ch. 49.

§16-15-17. Policy of state as to rentals.

(a) It is hereby declared to be the policy of this state that each housing authority shall manage and operate its housing developments in an efficient manner so as to enable it to fix the rentals, leases or purchase prices for dwellings at the lowest possible rates consistent with its providing decent, safe and sanitary dwellings, and that no housing authority shall construct or operate any development for profit, or as a source of revenue to the city or county.

(b) It is the goal of this state to provide access to decent, safe, sanitary and affordable housing to its residents. The benefits of this article are not a matter of right, but of privilege. Persons accepting assistance under this article shall, by such acceptance thereof, recognize their responsibilities to the housing authorities providing such assistance and to other persons living in their vicinity. Persons accepting benefits are responsible for their own conduct and for the actions of other members of their households and of their guests. Housing authorities may impose and enforce occupancy standards and requirements to prohibit any criminal or other activity which threatens the health, safety or right to peaceful enjoyment of the premises or development by other residents. If eviction or lease termination are possible outcomes of the housing authority's enforcement of its occupancy standards, unless federal law or regulation provides otherwise, in any eviction or lease termination proceeding, there must be a finding of either: (1) The tenant's participation in; or (2) the tenant's knowledge of the participation of a member of the tenant's household or a tenant's guest in, criminal activities or other activities which threaten the health, safety or right to peaceful enjoyment of the premises or development by other residents. Unless, otherwise provided by federal law or regulation, any act done by a guest or member of a tenant's household is presumed to be known to the tenant. This presumption may be rebutted by clear and convincing evidence that the tenant could not reasonably have known that the act would occur or that the tenant took reasonable measures to prevent the act from occurring. In all cases of eviction or lease termination, the housing authority shall consider all circumstances surrounding the individual eviction, including the seriousness of the offense, extent of participation by household members, and effect of eviction on household members not involved. In appropriate cases, housing authorities may allow the tenant and the members of his or her household to remain. Even if there is no finding of knowledge, the tenant may be required to: (1) Prohibit any guest from visiting; and (2) remove any member of the household from the unit, if that individual participated in criminal activities or other activities which threaten the health, safety or right to peaceful enjoyment of the premises or development by other residents.

(c) An authority shall provide housing, rental, and other assistance to persons of low and moderate income, and assistance to properties and entities, in accordance with the provisions of this article, and, subject to standards and procedures adopted by the housing authority, to authorize the provision by housing authorities of supportive services and programs of every kind and description to advance the social, educational, and economic well-being and the economic and social self-sufficiency of persons receiving housing assistance under this article, so as to create wholesome living environments, eliminate long-term poverty, encourage gainful employment, develop social and economic self-sufficiency (including living independently of housing assistance), and enhance personal responsibility on the part of such persons;

(d) Housing authorities shall encourage the use of entrepreneurial methods and approaches and to stimulate and increase private sector initiatives and joint public-private sector initiatives by housing authorities in carrying out the purposes and provisions of this article.

(e) Housing authorities shall endeavor to increase the availability, from both public and private sector sources, of financing for the purchase of dwellings, and the financing for home improvements, and repairs for persons of low or moderate income; and to further endeavor to increase the availability of sources of equity and other financing for the development and operation by housing authorities and private sector entities of decent, safe, and sanitary rental housing that is affordable to persons of low and moderate income.

§16-15-18. Duties of authority and limitation of powers.

(a) In the operation or management of housing developments an authority shall at all times observe the following duties with respect to rentals, tenant selection and home ownership:

(1) It may rent or lease dwellings in the developments only to persons of eligible income and at rentals within the financial reach of the persons;

(2) It may rent or lease to a tenant housing consisting of the number of rooms, but no greater number, which it considers necessary to provide safe and sanitary accommodations to the proposed occupants, without overcrowding;

(3) Subject only to the limitations contained in this article or imposed by the federal government, an authority may lease or rent any dwellings, facilities or other real or personal property owned, controlled, or possessed by the authority, or with respect to which the authority has contractual rights permitting the lease or rental, for terms, upon conditions and lease terms and in exchange for rentals as the authority may from time to time in its discretion determine; further, and without limiting the foregoing, to establish rents in a manner and in amounts as the authority considers appropriate, including, but not limited to, rents based upon family income, (determined with adjustments and exclusions as the authority considers appropriate,) minimum rents, flat rents, graduated rents, rent ranges, and maximum rents, (any of which may vary among the authority's developments,) and to establish any other standards and conditions relating to rentals that the authority considers appropriate to carry out the purposes of this article;

(4) At and subsequent to an acquisition of occupied property, a housing authority may permit existing tenants in the property to remain in occupancy upon terms and conditions and for periods as the authority considers appropriate, notwithstanding that the tenants do not qualify as persons of eligible income;

(5) A housing authority may operate programs to increase home ownership by residents of its developments and by other persons of eligible income; and may acquire, rehabilitate, construct, reconstruct, sell, convey, lease, option, and take all other actions considered appropriate to achieve home ownership of dwellings and associated property by persons of eligible income. In connection with any program to encourage ownership, a housing authority may dispose of dwellings and other associated property in exchange or for fair market purchase prices, and upon terms and conditions, as the authority considers appropriate;

(6) To develop, acquire, own, lease and operate properties and facilities that are nonresidential in character, which are used for office, administrative, management, maintenance, commercial, or educational purposes, or providing services, or carrying out any other purpose authorized under this article; to acquire, own, lease, and operate properties and facilities that are both residential and nonresidential in character;

(7) To develop, acquire, own, or lease community facilities, and to provide such facilities to any public agency or to any person, agency, institution, or organization, public or private, for recreational, educational, health or welfare purposes for the benefit and use of the housing authority or occupants of its developments, or persons of eligible income, elderly or handicapped persons, or any combination of the foregoing; to operate or manage community facilities, itself, or as agent or any public agency, or any person, institution, or organization, public or private; and to receive compensation therefor, if any, as the parties may agree; community facilities may be utilized by private persons or organizations with or without charge, upon a determination by the authority that the utilization would be advisable to promote the public purposes of this article;

(8) To carry out plans, programs, contracts and agreements of every kind and description and to provide grants, loans, guarantees and other financial assistance to public or private persons or entities, whether nonprofit or for-profit, in order to rehabilitate, maintain, procure, and preserve existing affordable housing stocks in safe, decent and sanitary condition and to ensure that they remain affordable to persons of eligible income; and

(9) To pay, in whole or in part, for any person of eligible income the costs of preparation of any title instrument, deed of trust, note or security instrument, the costs of recording any title instrument, deed of trust, note or security instrument, and any impact fee levied pursuant to article twenty, chapter seven of this code, with the condition that in the event the person receiving a payment under this subdivision sells the property attributable to the payment within five years from receiving the payment, the person will repay the full amount of the payment to the housing authority.

(b) A housing authority shall conduct its affairs in accordance with sound financial and business practices, taking into account the nature of its activities and intended purpose. Therefore, a housing authority shall establish and charge rents no higher than it determines to be necessary to produce revenue which, together with all other available money, revenue, income and receipts of the authority from whatever source derived, will be sufficient:

(1) To pay when due all indebtedness of the authority;

(2) To pay all administrative and other costs of operating the authority's developments and programs of assistance;

(3) To pay the administrative and other costs of the maintenance, rehabilitation, renovation, repair, and replacement of the authority's developments and other property;

(4) To otherwise carry out its purposes under this article, including acquiring or creating additional housing developments and acquiring or improving property for other purposes authorized under this article, including community facilities, commercial facilities, and all other facilities and developments authorized under this article;

(5) To pay the costs of insurance, including the costs of claims, liabilities, losses and other expenses incurred in connection with any self-insurance program;

(6) To provide funds for all required payments in lieu of taxes;

(7) To make all payments required under and otherwise fully perform the authority's obligations under any contract, agreement, or arrangement entered into by the authority, including without limitation, those required in connection with any partnership or joint venture entered into by the authority;

(8) To perform the terms of any commitment or guarantee issued or given by the authority;

(9) To provide a reasonable return on the value of the property so as to enable the housing authority to continue to fulfill its duties, including, but not limited to, the acquisition of additional housing developments, land acquisition, acquisition or construction of buildings, equipment, facilities or other real or personal property for public purposes, including parks or other recreational, educational, welfare or community facilities within its area of operation;

(10) To accommodate economic factors which affect the financial stability and solvency of the authority's developments and programs;

(11) To pay the cost of actions occasioned by natural disasters and other emergencies; and

(12) To create and maintain operating and capital reserves that are reasonable and adequate to ensure the authority's ability to make all payments referred to herein and any other matter with respect to which the authority, in its discretion reasonably exercised, determines that the creation and maintenance of a reserve is appropriate.

Nothing in this section limits the amount which a housing authority may charge for nondwelling facilities or for dwelling facilities that are not rented to persons of eligible income: Provided, That the authority's actions do not conflict with the purposes of this article: Provided, however, That a housing authority may allow police officers and maintenance and management employees, not otherwise eligible for residence, to reside in its developments.

§16-15-19. Power to issue bonds; how bonds secured.

An authority shall have power to issue bonds from time to time, in its discretion, for any of its corporate purposes. An authority shall also have power to issue or exchange refunding bonds for the purpose of paying, retiring, extending or renewing bonds previously issued by it. An authority may issue such types of bonds as it may determine, including without limiting the generality of the foregoing, bonds on which the principal and interest are payable from income and revenues of the authority and from grants or contributions from the federal government or other source. Such income and revenues securing the bonds may be: Exclusively the income and revenues of the housing developments financed, in whole or in part, with the proceeds of such bonds; exclusively the income and revenues of certain designated housing developments, whether or not they are financed, in whole or in part, with the proceeds of such bonds; or the income and revenues of the authority generally. Any such bonds may be additionally secured by a pledge of any income or revenues of the authority, or a mortgage of any housing development, developments or other property of the authority.

§16-15-20. Bonds authorized by resolution; interest rate and life; forms; denominations; redemption; how payable; sale; signatures of commissioners or officers ceasing to be such before delivery; presumptions in suit, etc., involving validity.

(a) Bonds of an authority shall be authorized by its resolution and may be issued in one or more series and shall bear such date or dates, mature at such time or times, bear interest at such rate or rates, be in such denomination or denominations, be in such form, either coupon or registered, carry such conversion or registration privileges, have such rank or priority, be executed in such manner, be payable in such medium of payment, at such place or places, and be subject to such terms of redemption (with or without premium) as such resolution, its trust indenture or mortgage may provide. Bonds of a housing authority may be issued in zero coupon form or subject to federal taxation of interest thereon if the resolution authorizing issuance so provides.

(b) The bonds may be sold at public sale held after notice prior to such sale promulgated in the manner as the authority deems appropriate or, if the resolution authorizing issuance of the bonds so provides, they may be sold on a negotiated basis or at private sale without any public advertisement. At the discretion of the housing authority, the bonds may be sold at par, or at any discount or premium, as the resolution authorizing them provides. A housing authority issuing bonds may enter into agreements and arrangements with third parties for the marketing of its bonds as it shall deem appropriate.

(c) In case any of the commissioners or officers of the authority whose signatures appear on any bonds or coupons shall cease to be such commissioners or officers before the delivery of such bonds, such signatures shall, nevertheless, be valid and sufficient for all purposes, the same as if they had remained in office until such delivery. Any provisions of any law to the contrary notwithstanding, any bonds issued pursuant to this article shall be negotiable.

(d) In any suit, action or proceedings involving the validity or enforceability of any bond of an authority or the security therefor, any such bond reciting in substance that it has been issued by the authority to aid in financing a housing development to provide housing for persons of eligible income shall be conclusively deemed to have been issued for a housing development of such character, and the development shall be conclusively deemed to have been planned, located and constructed in accordance with the purposes and provisions of this article.

§16-15-21. Powers of authority in connection with the issuance of bonds, incurring obligations under leases and securing payment of bonds.

In connection with the issuance of bonds or the incurring of obligations under leases and in order to secure the payment of bonds or obligations, any authority, in addition to its other powers shall have power:

(1) To pledge all or any part of its gross or net rents, fees or revenues to which its right then exists or may thereafter come into existence;

(2) To mortgage all or any part of its real or personal property, then owned or thereafter acquired;

(3) To covenant against pledging all or any part of its rents, fees and revenues, or against mortgaging all or any part of its real or personal property, to which its right or title then exists or may thereafter come into existence or against permitting or suffering any lien on revenues or property; to covenant with respect to limitations on its right to sell, lease or otherwise dispose of any housing development or any part thereof; and to covenant as to what other, or additional debts or obligations may be incurred by it;

(4) To covenant as to the bonds to be issued and as to the issuance of bonds or otherwise, and as to the issuance of bonds in escrow or otherwise and as to the use and disposition of the proceeds thereof; to provide for the replacement of lost, destroyed or mutilated bonds; to covenant against extending the time for the payment of its bonds or interest thereon; and to redeem the bonds, and to covenant for their redemption and to provide the terms and conditions thereof;

(5) To covenant, subject to the limitations contained in this article, as to the rents, purchase prices, and fees to be charged in the operation of a housing development or developments, the amount to be raised each year or other period of time by rents, fees, and other revenues, and as to the use and disposition to be made thereof; to create or to authorize the creation of special funds for moneys held for construction or operating costs, debt service, reserves, or other purposes, and to covenant as to the use and disposition of the moneys held in such funds;

(6) To prescribe the procedure, if any, by which the terms of any contract with bondholders may be amended or abrogated, the amount of bonds the holders of which must consent thereto and the manner in which such consent may be given;

(7) To covenant as to use of any or all of its real or personal property; and to covenant as to the maintenance of its real and personal property, the replacement thereof, the insurance to be carried thereon and the use and disposition of insurance moneys;

(8) To covenant as to the rights, liabilities, powers and duties arising upon the breach by it of any covenant, condition, or obligation; and to covenant and prescribe as to events of default and terms and conditions upon which any or all of its bonds or obligations shall become or may be declared due before maturity, and as to the terms and conditions upon which the declaration and its consequences may be waived;

(9) To vest in a trustee or trustees or the holders of bonds or any proportion of them the right to enforce the payment of the bonds or any covenants securing or relating to the bonds; to vest in a trustee or trustees the right, in the event of a default by said authority, to take possession and, as long as the authority is in default, to retain possession and to use, operate and manage any housing development or part thereof, and to collect the rents and revenues arising therefrom and to dispose of such moneys in accordance with the agreement of the authority with said trustees; to provide for the powers and duties of a trustee or trustees and to limit the liabilities thereof; and to provide the terms and conditions upon which the trustee or trustees or the holders of bonds or any proportion of them may enforce any covenant or rights securing or relating to the bonds; and

(10) To exercise all or any part or combination of the powers herein granted; to make covenants other than and in addition to the covenants herein expressly authorized, of like or different character; to make covenants and to do any and all acts and things as may be necessary or convenient or desirable in order to secure its bonds, or, in the absolute discretion of said authority, as will tend to make the bonds more marketable notwithstanding that the covenants, acts or things may not be enumerated herein.

§16-15-22. Actions by obligee of authority to enforce performance of contracts and to enjoin unlawful acts.

An obligee of an authority shall have the right in addition to all other rights which may be conferred on the obligee, subject only to any contractual restrictions binding upon the obligee:

(1) By mandamus, suit, action or proceeding at law or in equity to compel said authority and the commissioners, officers, agents or employees thereof to perform each and every term, provision and covenant contained in any contract of said authority with or for the benefit of the obligee, and to require the carrying out of any or all covenants and agreements of the authority and the fulfillment of all duties imposed upon said authority by this article; and

(2) By suit, action or proceeding in equity, to enjoin any acts or things which may be unlawful, or the violation of any of the rights of an obligee of the authority.

§16-15-23. Surrender of possession of development to obligee upon default by authority; appointment of receiver; accounting.

An authority shall have power by its resolution, trust indenture, mortgage, lease or other contract to confer upon any obligee holding or representing a specified amount in bonds, or holding a lease, the right, in addition to all rights that may otherwise be conferred, upon the happening of an event of default as defined in such resolution or instrument, by suit, action or proceeding in any court of competent jurisdiction:

(1) To cause possession of any housing development or any part thereof to be surrendered to the obligee; possession may be retained by the bondholder or trustee so long as the authority shall continue in default;

(2) To obtain the appointment of a receiver of any housing development of the authority or any part thereof and of the rents and profits therefrom. If a receiver is appointed, he or she may enter and take possession of the housing development or any part thereof and, so long as the authority shall continue in default, operate and maintain same, and collect and receive all fees, rents, revenues, or other charges thereafter arising therefrom, and shall keep such moneys in a separate account or accounts and apply the same in accordance with the obligations of the authority as the court shall direct; and

(3) To require the authority and the commissioners thereof to account as if it and they were the trustees of an express trust.

§16-15-24. Housing authorities empowered to provide housing for farmers of low and moderate income.

Housing authorities created for counties and other authorities whose jurisdiction includes rural areas are specifically empowered and authorized to borrow money, accept grants and exercise their other powers to provide housing for farmers of low and moderate income. In connection with such developments, housing authorities may enter into leases or purchase agreements, accept such conveyances and rent or sell dwellings forming part of developments to or for farmers of low and moderate income, as the housing authority deems necessary in order to assure the achievement of the objectives of this article. Leases, agreements or conveyances may include such covenants as the housing authority deems appropriate regarding dwellings and the tracts of land described in any such instrument, which covenants shall be deemed to run with the land where the housing authority deems it necessary and the parties to such instrument so stipulate. Nothing contained in this section shall be construed as limiting any other powers of any housing authority.

§16-15-25. Application for low-cost housing for farmers.

The owner of any farm operated, or worked upon, by farmers of low and moderate income in need of safe and sanitary housing may file an application with a housing authority requesting that it provide for a safe and sanitary dwelling or dwellings for occupancy by farmers of low and moderate income. The applications shall be received and examined by housing authorities in connection with the formulation of developments or programs to provide housing for farmers of low and moderate income.

§16-16-1. Citation of article.

This article may be referred to as the "Housing Cooperation Law."

§16-16-2. Declaration of purpose and necessity.

It has been found and declared in the "Housing Authorities Law" (chapter ninety-three, acts of the Legislature, second extraordinary session, one thousand nine hundred thirty-three) that there exist in the state unsafe and unsanitary housing conditions and a shortage of safe and sanitary dwelling accommodations for persons of low income; that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities; and that the public interest requires the remedying of these conditions. It is hereby found and declared that the assistance herein provided for the remedying of the conditions set forth in the "Housing Authorities Law" constitutes a public use and purpose and an essential governmental function for which public moneys may be spent, and other aid given; that it is a proper public purpose for any state public body to aid any housing authority operating within its boundaries or jurisdiction or any housing project located therein, as the state public body derives immediate benefits and advantages from such an authority or project; and that the provisions hereinafter enacted are necessary in the public interest.

§16-16-3. Definitions.

The following terms, whenever used or referred to in this article, shall have the following respective meanings, unless a different meaning clearly appears from the context:

"Housing authority" shall mean any housing authority created pursuant to chapter ninety-three, acts of the Legislature, second extraordinary session, one thousand nine hundred thirty-three, and any amendments thereto.

"Housing project" shall mean any work or undertaking of a housing authority pursuant to such chapter, and any amendments thereto, or any similar work or undertaking of the federal government.

"State public body" shall mean any city, town, village, county, municipal corporation, commission, district, authority, other subdivision or public body of the state.

"Governing body" shall mean the council, board, commission, or other body having charge of the fiscal affairs of a state public body.

"Federal government" shall include the United States of America, the United States housing authority, or any other agency or instrumentality, corporate or otherwise, of the United States of America.

§16-16-4. Powers conferred upon state public bodies.

For the purpose of aiding and cooperating in the planning, undertaking, construction or operation of housing projects located within the area in which it is authorized to act, any state public body may, upon such terms, with or without consideration, as it may determine:

Dedicate, sell, convey or lease any of its interest in any property, or grant easements, licenses or any other rights or privileges therein to a housing authority or the federal government;

Cause parks, playgrounds, recreational, community, educational, water, sewer or drainage facilities, or any other works which it is otherwise empowered to undertake, to be furnished adjacent to or in connection with housing projects;

Furnish, dedicate, close, pave, install, grade, regrade, plan or replan streets, roads, roadways, alleys, sidewalks or other places which it is otherwise empowered to undertake;

Plan or replan, zone or rezone any part of such state public body; make exceptions from building regulations and ordinances; any city or town also may change its map;

Cause services to be furnished to the housing authority of the character which such state public body is otherwise empowered to furnish;

Enter into agreements with respect to the exercise by such state public body of its powers relating to the repair, closing or demolition of unsafe, insanitary, or unfit dwellings;

Employ (notwithstanding the provisions of any other law) any funds belonging to or within the control of such state public body, including funds derived from the sale or furnishing of property or facilities to a housing authority, in the purchase of the bonds or other obligations of a housing authority; and exercise all the rights of any holder of such bonds or other obligations;

Do any and all things necessary or convenient to aid and cooperate in the planning, undertaking, construction or operation of such housing project;

Incur the entire expense of any public improvements made by such state public body in exercising the powers granted in this article; and

Enter into agreements (which may extend over any period, notwithstanding any provision or rule of law to the contrary), with a housing authority respecting action to be taken by such state public body pursuant to any of the powers granted by this article. Any law or statute to the contrary notwithstanding, any sale, conveyance, lease or agreement provided for in this section may be made by a state public body without appraisal, public notice, advertisement or public bidding.

§16-16-5. City or county may lend or donate money to housing authority; reimbursement.

Any city or county located in whole or in part within the area of operation of a housing authority shall have the power from time to time to lend or donate money to such authority. A housing authority, when it has money available therefor, shall make reimbursements for all such loans made to it.

§16-16-6. How exercise of powers granted to state public body authorized.

The exercise by a state public body of the powers herein granted may be authorized by resolution of the governing body of such state public body adopted by a majority of the members of its governing body present at a meeting of said governing body, which resolution may be adopted at the meeting at which such resolution is introduced. Such a resolution or resolutions shall take effect immediately and need not be laid over or published or posted.

§16-16-7. Additional and supplemental powers conferred.

The powers conferred by this article shall be in addition and supplemental to the powers conferred by any other law.

§16-17-1. Declaration of legislative purpose.

It is hereby found and declared that the national defense program involves large increases in the military forces and personnel in this state, a great increase in the number of workers in already established manufacturing centers, and the bringing of a large number of workers and their families to new centers of defense industries in the state; that there is an acute shortage of safe and sanitary dwellings available to such persons and their families in this state which impedes the national defense program; that it is imperative that action be taken immediately to assure the availability of safe and sanitary dwellings for such persons to enable the rapid expansion of national defense activities in this state and to avoid a large labor turnover in defense industries which would seriously hamper their production; that the provisions hereinafter enacted are necessary to assure the availability of safe and sanitary dwellings for persons engaged in national defense activities which otherwise would not be provided at this time; and that such provisions are for the public use and purpose of facilitating the national defense program in this state. It is further declared to be the purpose of this article to authorize housing authorities to do any and all things necessary or desirable to secure the financial aid of the federal government, or to cooperate with or act as agent of the federal government, in the expeditious development and the administration of projects to assure the availability when needed of safe and sanitary dwellings for persons engaged in national defense activities.

§16-17-2. Housing authorities authorized to develop and administer safe and sanitary housing for persons engaged in national defense activities.

Any housing authority may undertake the development and administration of projects to assure the availability of safe and sanitary dwellings for persons engaged in national defense activities whom the housing authority determines would not otherwise be able to secure safe and sanitary dwellings within the vicinity thereof, but no housing authority shall initiate the development of any such project pursuant to this article after December 31, 1943.

In the ownership, development or administration of such projects, a housing authority shall have all the rights, powers, privileges and immunities that such authority has under any provision of law relating to the ownership, development or administration of slum clearance and housing projects for persons of low income, in the same manner as though all the provisions of law applicable to slum clearance and housing projects for persons of low income were applicable to projects developed or administered to assure the availability of safe and sanitary dwellings for persons engaged in national defense activities as provided in this article, and housing projects developed or administered hereunder shall constitute "projects" as that term is used in chapter ninety-three, acts of the Legislature of West Virginia, second extraordinary session, 1933, and any amendments thereto: Provided, That during the period (herein called the "national defense period") that a housing authority finds (which finding shall be conclusive in any suit, action or proceeding) that within its authorized area of operation, or any part thereof, there is an acute shortage of safe and sanitary dwellings which impedes the national defense program in this state, and the the necessary safe and sanitary dwellings would not otherwise be provided when needed for persons engaged in national defense activities, any project developed or administered by such housing authority (or by any housing authority cooperating with it) in such area pursuant to this article, with the financial aid of the federal government (or as agent for the federal government as hereinafter provided), shall not be subject to the rentals and tenant selection limitations contained in any other act: And provided further, That during the national defense period, a housing authority may make payments in such amounts as it finds necessary or desirable for any services, facilities, works, privileges or improvements furnished for or in connection with any such projects. In the development or the administration of projects hereunder, or in otherwise carrying out the purposes hereof, a housing authority of a city may exercise its powers within the territorial boundaries of said city and an area within five miles from said boundaries excluding the area within the territorial boundaries of any other city which has heretofore established a housing authority. After the national defense period, any such projects owned and administered by a housing authority shall be administered for the purposes and in accordance with the provisions of chapter ninety-three, acts of the Legislature of West Virginia, second extraordinary session, 1933, and any amendments thereto, except as otherwise provided in the preceding sentence of this section two.

§16-17-3. Cooperation of housing authority with federal government; sale of housing projects to government.

A housing authority may exercise any or all of its powers for the purpose of cooperating with, or acting as agent for, the federal government in the development or administration of projects by the federal government to assure the availability of safe and sanitary dwellings for persons engaged in national defense activities, and may undertake the development or administration of any such project for the federal government. In order to assure the availability of safe and sanitary housing for persons engaged in national defense activities, a housing authority may sell (in whole or in part) to the federal government any housing project developed for persons of low income but not yet occupied by such persons; such sale shall be at such price and upon such terms as the housing authority shall prescribe, and shall include provision for the satisfaction of all debts and liabilities of the authority relating to such project.

§16-17-4. Rights and powers of public bodies to cooperate with housing authorities or federal government.

Any city, county or other public body shall have the same rights and powers to cooperate with housing authorities, or with the federal government, with respect to the development or administration of projects to assure the availability of safe and sanitary dwellings for persons engaged in national defense activities, that such city, county or other public body has under any provisions of law for the purpose of assisting the development or administration of slum clearance or housing projects to persons of low income.

§16-17-5. Bonds, notes, contracts, etc., of housing authorities validated.

All bonds, notes, contracts, agreements and obligations of housing authorities heretofore issued or entered into relating to financing or undertaking (including cooperating with or acting as agent of the federal government) in the development or administration of any project to assure the availability of safe and sanitary dwellings for persons engaged in national defense activities, are hereby validated and declared legal in all respects, notwithstanding any defect or irregularity therein or any want of statutory authority.

§16-17-6. Article constitutes independent authorization; housing authority not subject to limitations and requirements of other laws.

This article shall constitute an independent authorization for a housing authority to undertake the development or administration of projects to assure the availability of safe and sanitary dwellings for persons engaged in national defense activities as provided in this article, and for a housing authority to cooperate with, or act as agent for, the federal government in the development or administration of similar projects by the federal government. In acting under this authorization, a housing authority shall not be subject to any limitations, restrictions or requirements of other laws (except those relating to land acquisition) prescribing the procedure or action to be taken in the development or administration of any public works, including slum clearance and housing projects for persons of low income or undertakings or projects of municipal or public corporations or political subdivisions or agencies of the state. A housing authority may do any and all things necessary or desirable to cooperate with, or act as agent for, the federal government, or to secure financial aid, in the expeditious development or in the administration of projects to assure the availability of safe and sanitary dwellings for persons engaged in national defense activities and to effectuate the purposes of this article.

§16-17-7. Definitions.

(a) "Persons engaged in national defense activities," as used in this article, shall include: Enlisted men in the military and naval services of the United States and employees of the war and navy departments assigned to duty at military or naval reservations, posts or bases; and workers engaged or to be engaged in industries connected with and essential to the national defense program; and shall include the families of the aforesaid persons who are living with them.

(b) "Development," as used in this article, shall mean any and all undertakings necessary for the planning, land acquisition, demolition, financing, construction or equipment in connection with a project (including the negotiation or award of contracts therefor), and shall include the acquisition of any project (in whole or in part) from the federal government.

(c) "Administration," as used in this article, shall mean any and all undertakings necessary for management, operation or maintenance, in connection with any project, and shall include the leasing of any project (in whole or in part) from the federal government.

(d) "Federal government," as used in this article, shall mean the United States of America or any agency or instrumentality, corporate or otherwise, of the United States of America.

(e) The development of a project shall be deemed to be "initiated," within the meaning of this article, if a housing authority has issued any bonds, notes or other obligations with respect to financing the development of such project of the authority, or has contracted with the federal government with respect to the exercise of powers hereunder in the development of such project of the federal government for which an allocation of funds has been made prior to December 31, 1943.

(f) "Housing authority," as used in this article, shall mean any housing authority established or hereafter established pursuant to chapter ninety-three, acts of the Legislature of West Virginia, second extraordinary session, 1933, and any amendments thereto.

§16-17-8. Additional and supplemental powers conferred.

The powers conferred by this article shall be in addition and supplemental to the powers conferred by any other law, and nothing contained herein shall be construed as limiting any other powers of a housing authority.

§16-18-1. Short title.

This article shall be known and may be cited as the "Urban Renewal Authority Law."

§16-18-2. Findings and declaration of necessity.

It is hereby found and declared that there exist in localities throughout the state, slum and blighted areas (as herein defined) which constitute a serious and growing menace, injurious and inimical to the public health, safety, morals and welfare of the residents of the state; that the existence of such areas contributes substantially and increasingly to the spread of disease and crime, necessitating excessive and disproportionate expenditures of public funds for the preservation of the public health and safety, for crime prevention, correction, prosecution, punishment and the treatment of juvenile delinquency and for the maintenance of adequate police, fire and accident protection and other public services and facilities, constitutes an economic and social liability, substantially impairs or arrests the sound growth of communities and retards the provision of housing accommodations; that this menace is beyond remedy and control solely by regulatory process in the exercise of the police power and cannot be dealt with effectively by the ordinary operations of private enterprise without the aids herein provided; that the elimination of slum conditions or conditions of blight, the acquisition and preparation of land in or necessary to the development of slum or blighted areas and its sale or lease for development or redevelopment in accordance with general plans and redevelopment plans of communities and any assistance which may be given by any state public body in connection therewith, are public uses and purposes for which public money may be expended and private property acquired; and that the necessity in the public interest for the provisions hereinafter enacted is hereby declared as a matter of legislative determination.

§16-18-3. Definitions.

The following terms, wherever used or referred to in this article, shall have the following meanings, unless a different meaning is clearly indicated by the context:

“Area of operation” means in the case of a municipality, the area within such municipality and the area within five miles of the territorial boundaries thereof, except that the area of operation of a municipality under this article shall not include any area which lies within the territorial boundaries of another municipality unless a resolution shall have been adopted by the governing body of such other municipality declaring a need therefor; and in the case of a county, the area within the county, except that the area of operation in such case shall not include any area which lies within the territorial boundaries of a municipality unless a resolution shall have been adopted by the governing body of such municipality declaring a need therefor; and in the case of a regional authority, shall mean the area within the communities for which such regional authority is created: Provided, That a regional authority shall not undertake a redevelopment project within the territorial boundaries of any municipality unless a resolution shall have been adopted by the governing body of such municipality declaring that there is a need for the regional authority to undertake such development project within such municipality. No authority shall operate in any area of operation in which another authority already established is undertaking or carrying out a redevelopment project without the consent, by resolution, of such other authority.

“Authority”, “slum clearance and redevelopment authority”, or “urban renewal authority” means a public body, corporate and politic, created by or pursuant to section four of this article or any other public body exercising the powers, rights, and duties of such an authority as hereinafter provided.

“Blighted area” means an area, other than a slum area, which by reason of the predominance of defective or inadequate street layout, faulty lot layout in relation to size, adequacy, accessibility or usefulness, insanitary or unsafe conditions, deterioration of site improvement, diversity of ownership, tax or special assessment delinquency exceeding the fair value of the land, defective or unusual conditions of title, improper subdivision or obsolete platting, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs or arrests the sound growth of the community, retards the provision of housing accommodations or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare in its present condition and use.

“Blighted property” means a tract or parcel of land that, by reason of abandonment, dilapidation, deterioration, age or obsolescence, inadequate provisions for ventilation, light, air or sanitation, high density of population and overcrowding, tax delinquency, deterioration of site or other improvements, or the existence of conditions that endanger life or property by fire or other causes, or any combination of such factors, is detrimental to the public health, safety, or welfare.

“Bonds” means any bonds, including refunding bonds, notes, interim certificates, debentures, or other obligations issued by an authority pursuant to this section.

“Community” means any municipality or county in the state.

“Clerk” means the clerk or other official of the municipality or county who is the custodian of the official records of such municipality or county.

“Federal government” is the United States of America or any agency or instrumentality, corporate or otherwise, of the United States of America.

“Governing body” means the council or other legislative body charged with governing the municipality or the county court or other legislative body charged with governing the county.

“Mayor” means the officer having the duties customarily imposed upon the executive head of a municipality.

“Municipality” means any incorporated city, town, or village in the state.

“Obligee” means any bondholder, agents, or trustees for any bondholders, or lessor demising to the authority property used in connection with a redevelopment project, or any assignee or assignees of such lessor’s interest or any part thereof, and the federal government when it is a party to any contract with the authority.

“Person” means any individual, firm, partnership, corporation, company, association, joint stock association, or body politic, and shall include any trustee, receiver, assignee, or other similar representative thereof.

“Public body” means the state or any municipality, county, township, board, commission, authority, district, or any other subdivision or public body of the state.

“Real property” includes all lands, including improvements and fixtures thereon, and property of any nature appurtenant thereto, or used in connection therewith, and every estate, interest, and right, legal or equitable, therein, including terms for years and liens by way of judgment, mortgage, or otherwise and the indebtedness secured by such liens.

“Redeveloper” means any person, partnership, or public or private corporation or agency which shall enter or propose to enter into a redevelopment contract.

“Redevelopment contract” means a contract entered into between an authority and a redeveloper for the redevelopment of an area in conformity with a redevelopment plan.

“Redevelopment plan” means a plan for the acquisition, clearance, reconstruction, rehabilitation, or future use of a redevelopment project area.

“Redevelopment project” means any work or undertaking:

(1) To acquire pursuant to the limitations contained in §54-1-2(11) of this code slum areas or blighted areas or portions thereof, including lands, structures, or improvements, the acquisition of which is necessary or incidental to the proper clearance, development, or redevelopment of such slum or blighted areas or to the prevention of the spread or recurrence of slum conditions or conditions of blight;

(2) To clear any such areas by demolition or removal of existing buildings, structures, streets, utilities, or other improvements thereon and to install, construct, or reconstruct streets, utilities, and site improvements essential to the preparation of sites for uses in accordance with a redevelopment plan;

(3) To sell, lease, or otherwise make available land in such areas for residential, recreational, commercial, industrial or other use or for public use or to retain such land for public use, in accordance with a redevelopment plan; and

(4) Preparation of a redevelopment plan, the planning, survey and other work incident to a redevelopment project, and the preparation of all plans and arrangements for carrying out a redevelopment project.

“Slum area” means an area in which there is a predominance of buildings or improvements or which is predominantly residential in character and which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals, or welfare.

“Unblighted property” means a property that is not a blighted property.

§16-18-4. Creation of urban renewal authority.

(a) There is hereby created in each community (as herein defined) a public body corporate and politic, to be known as the "urban renewal authority" of the community: Provided, however, That such authority shall not transact any business or exercise its powers hereunder until or unless the governing body shall approve (by resolution, as herein provided) the exercise in such community of the powers, functions and duties of an authority under this article: Provided further, That, if it deems such action to be in the public interest, the governing body may, instead of such resolution, adopt a resolution approving the exercise of such powers, functions and duties by the community itself or by the housing authority, if one exists or is subsequently established in the community, and in such event, the community or housing authority, as the case may be, shall be vested with all the powers, functions, rights, duties and privileges of an urban renewal and redevelopment authority under this article.

(b) The governing body of a community shall not adopt a resolution pursuant to subsection (a) above unless it finds:

(1) That one or more slum or blighted areas (as herein defined) exist in such community, and

(2) That the redevelopment of such area or areas is necessary in the interest of the public health, safety, morals or welfare of the residents of such community.

(c) If the governing body of each of two or more communities declares, by resolution, that there is a need for one urban renewal and redevelopment authority to be created for all of such communities, and has made the finding required by paragraph (b), a public body, corporate and politic, to be known as a regional slum clearance and redevelopment authority (herein referred to as regional authority or authority) shall thereupon exist for all of such communities and may exercise the powers and other functions of an authority under this article in such communities.

(d) The area of operation of a regional authority shall be increased from time to time to include one or more additional communities if the governing body of each of such additional communities adopts the resolution described in paragraph (c) and makes the findings required by paragraph (b), and the commissioners of the regional authority consent to the inclusion within its area of operation of such additional communities.

(e) When the governing body of a municipality adopts a resolution as aforesaid, it shall promptly notify the mayor of such adoption. If the resolution adopted is one approving the exercise of powers hereunder by an urban renewal and redevelopment authority, the mayor, by and with the advice and consent of the governing body shall appoint a board of commissioners of the authority created for such municipality which shall consist of no less than five commissioners nor more than seven, and when the governing body of a county adopts such a resolution, said body shall appoint a board of commissioners of the authority created for such county which shall consist of no less than five commissioners nor more than seven. The commissioners who are first appointed pursuant to this article shall be designated to serve for terms of one, two, three and four years, and three of said commissioners for five years, respectively, from the date of their appointment, but thereafter commissioners shall be appointed as aforesaid for a term of office of five years except that all vacancies shall be filled for the unexpired term.

(f) If a regional authority is created as herein provided, one person shall be appointed as a commissioner of such authority for each community for which such authority is created. When the area of operation of a regional authority is increased to include an additional community or communities as herein provided, one additional person shall be appointed as a commissioner of such authority for each such additional community. Each such commissioner appointed for a municipality shall be appointed by the mayor thereof, by and with the advice and consent of the governing body, and each such commissioner appointed for a county shall be appointed by the governing body thereof. The first appointment of commissioner of a regional authority may be made at or after the time of the adoption of the resolution declaring the need for such authority or declaring the need for the inclusion of such community in the area of operation of such authority. The commissioners of a regional authority and their successors shall be appointed as aforesaid for terms of five years except that all vacancies shall be filled for the unexpired terms.

If the area of operation of a regional authority consists at any time of an even number of communities, the commissioners of the regional authority already appointed in the manner described above shall appoint the additional commissioner whose term of office shall be as provided for a commissioner of a regional authority except that such terms shall end at any earlier time that the area of operation of the regional authority shall be changed to consist of an odd number of communities. The commissioners of such authority already appointed in the manner described above shall likewise appoint each person to succeed such additional commissioner: Provided, That the term of office of such person begins during the terms of office of the commissioners appointing him. A certificate of the appointment of any such additional commissioner of such regional authority shall be filed with the other records of the regional authority and shall be conclusive evidence of the due and proper appointment of such additional commissioner.

(g) A commissioner of an authority shall receive no compensation for his services, but shall be entitled to the necessary expenses, including traveling expenses, incurred in the discharge of his duties. Each commissioner shall hold office until his successor has been appointed and has qualified. A certificate of the appointment or reappointment of any commissioner shall be filed with the municipal or county clerk, as the case may be, and such certificate shall be conclusive evidence of the due and proper appointment of such commissioner.

The powers hereunder vested in each urban renewal and redevelopment authority shall be exercised by the board of commissioners thereof. A majority of the commissioners shall constitute a quorum of such board for the purpose of conducting business and exercising the powers of the authority and for all other purposes. Action may be taken by the board upon a vote of a majority of the commissioners present, unless in any case the bylaws of the authority shall require a larger number. Meetings of the board of an authority may be held anywhere within the perimeter boundaries of the area of operation of the authority. Any persons may be appointed as commissioners of the authority if they reside within such area, and are otherwise eligible for such appointments under this article.

The commissioners of an authority shall elect a chairman and vice chairman from among the commissioners. An authority may employ an executive director, technical experts and such other officers, agents and employees, permanent and temporary, as it may require, and shall determine their qualifications, duties and compensation. For such legal services as it may require, an authority may, with the approval of the mayor (or of the governing body in the case of a county), call upon the chief law officer of the communities within its area of operation or it may employ its own counsel and legal staff. An authority may delegate to one or more of its agents or employees such powers or duties as it may deem proper.

(h) For inefficiency or neglect of duty or misconduct in office, a commissioner of an authority may be removed by the official or public body which appointed such commissioner, but a commissioner shall be removed only after a hearing and after he shall have been given a copy of the charges at least ten days prior to such hearing and have had an opportunity to be heard in person or by counsel. In the event of the removal of any commissioner, a record of the proceedings, together with the charges and findings thereof, shall be filed in the office of the municipal or county clerk, as the case may be.

(i) In any suit, action or proceeding involving the validity or enforcement of or relating to any contract of or bonds issued by an authority, the authority shall be conclusively deemed to have become established and authorized to transact business and exercise its powers hereunder upon proof of the adoption of the appropriate resolution prescribed in subsection (a) or (c) above. Each such resolution shall be deemed sufficient if it authorizes the exercise of powers hereunder by the authority or other public body and finds in substantially the terms provided in subsection (b) (no further details being necessary) that the conditions therein enumerated exist. A copy of such resolution duly certified by the municipal or county clerk, as the case may be, shall be admissible in evidence in any suit, action or proceeding.

(j) No commissioner or employee of an authority shall voluntarily acquire any interest, direct or indirect, in any redevelopment project or in any property included or planned by the authority to be included in any such project, or in any contract or proposed contract in connection with any such project. Where the acquisition is not voluntary such commissioner or employee shall immediately disclose such interest in writing to the authority and such disclosure shall be entered upon the minutes of the authority. A commissioner or employee who owns or controls any interest, direct or indirect, in such property shall not participate in any action by the authority affecting the property. If any commissioner or employee of an authority owned or controlled within the preceding two years an interest, direct or indirect, in any property included or planned by the authority to be included in any redevelopment project, he immediately shall disclose such interest in writing to the authority and such disclosure shall be entered upon the minutes of the authority. Upon such disclosure such commissioner or employee shall not participate in any action by the authority affecting such property. Any violation of the provisions of this section shall constitute misconduct in office.

§16-18-5. Powers of an authority.

An authority shall constitute a public body corporate and politic, exercising public and essential governmental functions, and having all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this article, including the following powers in addition to others herein granted:

(a) To sue and to be sued; to have a seal and to alter the same at pleasure; to have perpetual succession; to make and execute contracts and other instruments necessary or convenient to the exercise of the powers of the authority; and to make and from time to time amend and repeal bylaws, rules and regulations, not inconsistent with this article, to carry out the provisions of this article.

(b) To prepare or cause to be prepared and recommend redevelopment plans to the governing body of the community or communities within its area of operation and to undertake and carry out redevelopment projects within its area of operation.

(c) To arrange or contract for the furnishing or repair, by any person or agency, public or private, of services, privileges, works, streets, roads, public utilities or other facilities for or in connection with a redevelopment project; and (notwithstanding anything to the contrary contained in this article or any other provision of law), to agree to any conditions that it may deem reasonable and appropriate attached to federal financial assistance and imposed pursuant to federal law relating to the determination of prevailing salaries or wages or compliance with labor standards, in the undertaking or carrying out of a redevelopment project, and to include in any contract let in connection with such a project, provisions to fulfill such of said conditions as it may deem reasonable and appropriate.

(d) Within its area of operation, to purchase, lease, obtain options upon, acquire by gift, grant, bequest, devise, eminent domain or otherwise, any real or personal property or any interest therein, together with any improvements thereon, necessary or incidental to a redevelopment project; to hold, improve, clear or prepare for redevelopment any such property; to sell, lease, exchange, transfer, assign, subdivide, retain for its own use, mortgage, pledge, hypothecate or otherwise encumber or dispose of any real or personal property or any interest therein; to enter into contracts with redevelopers of property containing covenants, restrictions and conditions regarding the use of such property for residential, commercial, industrial, recreational purposes or for public purposes in accordance with the redevelopment plan and such other covenants, restrictions and conditions as the authority may deem necessary to prevent a recurrence of slum or blighted areas or to effectuate the purposes of this article; to make any of the covenants, restrictions or conditions of the foregoing contracts covenants running with the land, and to provide appropriate remedies for any breach of any such covenants or conditions, including the right in the authority to terminate such contracts and any interest in the property created pursuant thereto; to borrow money and issue bonds and provide security for loans or bonds; to insure or provide for the insurance of any real or personal property or operations of the authority against any risks or hazards, including the power to pay premiums on any such insurance; and to enter into any contracts necessary to effectuate the purposes of this article. No statutory provision with respect to the acquisition, clearance or disposition of property by other public bodies shall restrict an authority or other public body exercising powers hereunder, in such functions, unless the Legislature shall specifically so state.

(e) To invest any funds held in reserves or sinking funds or any funds not required for immediate disbursement, in property or securities in which savings banks may legally invest funds subject to their control; to redeem its bonds at the redemption price established therein or to purchase its bonds at less than redemption price, all bonds so redeemed or purchased to be cancelled.

(f) To acquire real property in an urban renewal area prior to approval of an urban renewal plan, or approval of any modifications of the plan, demolish and remove any structure on the property, and pay all costs related to the acquisition, demolition or removal, including any administrative or relocation expense, provided it shall be deemed necessary by an authority, and with the approval of the local governing body which shall assume the responsibility to bear any loss that may arise as the result of the exercise of the authority under this section, in the event that the real property is not made part of the urban renewal project.

(g) To borrow money and to apply for and accept advances, loans, grants, contributions and any other form of financial assistance from the federal government, the state, county, municipality or other public body or from any sources, public or private, for the purposes of this article, to give such security as may be required and to enter into and carry out contracts in connection therewith; an authority, notwithstanding the provisions of any other law, may include in any contract for financial assistance with the federal government for a redevelopment project such conditions imposed pursuant to federal law as the authority may deem reasonable and appropriate and which are not inconsistent with the purposes of this article.

(h) Acting through one or more commissioners or other persons designated by the authority, to conduct examinations and investigations and to hear testimony and take proof under oath at public or private hearings on any matter material for its information; to administer oaths, and to issue commissions for the examination of witnesses who are outside of the state or unable to attend before the authority, or excused from attendance; to make available to appropriate agencies or public officials (including those charged with the duty of abating or requiring the correction of nuisances or like conditions or of demolishing unsafe or insanitary structures or eliminating slums or conditions of blight within its area of operation) its findings and recommendations with regard to any building or property where conditions exist which are dangerous to the public health, safety, morals or welfare.

(i) Within its area of operation, to make or have made all surveys, appraisals, studies and plans (but not including the preparation of a general plan for the community) necessary to the carrying out of the purposes of this article and to contract or cooperate with any and all persons or agencies, public or private, in the making and carrying out of such surveys, appraisals, studies and plans.

(j) To prepare plans and provide reasonable assistance for the relocation of families displaced from a redevelopment project area to permit the carrying out of the redevelopment project, to the extent essential for acquiring possession of and clearing such area or parts thereof.

(k) To make such expenditures as may be necessary to carry out the purposes of this article; and to make expenditures from funds obtained from the federal government without regard to any other laws pertaining to the making and approval of appropriations and expenditures.

(l) To exercise all or any part or combination of powers herein granted.

§16-18-6. Preparation and approval of redevelopment plans.

(a) An authority shall not acquire real property for a redevelopment project unless the governing body of the community in which the redevelopment project area is located has approved the redevelopment plans, as prescribed in subsection (i) below.

(b) An authority shall not prepare a redevelopment plan for a redevelopment project area unless the governing body of the community in which such area is located has, by resolution, declared such area to be a slum or blighted area in need of redevelopment.

(c) An authority shall not recommend a redevelopment plan to the governing body of the community in which the redevelopment project area is located until a general plan for the development of the community has been prepared.

(d) The authority may itself prepare or cause to be prepared a redevelopment plan or any person or agency, public or private, may submit such a plan to an authority. A redevelopment plan shall be sufficiently complete to indicate its relationship to definite local objectives as to appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities and other public improvements and the proposed land uses and building requirements in the redevelopment project area, and shall include without being limited to:

(1) The boundaries of the redevelopment project area, with a map showing the existing uses and conditions of the real property therein;

(2) A land use plan showing proposed uses of the area;

(3) Information showing the standards of population densities, land coverage and building intensities in the area after redevelopment;

(4) A statement of the proposed changes, if any, in zoning ordinances or maps, street layouts, street levels or grades, building codes and ordinances;

(5) A site plan of the area; and

(6) A statement as to the kind and number of additional public facilities or utilities which will be required to support the new land uses in the area after redevelopment.

(e) Prior to recommending a redevelopment plan to the governing body for approval, an authority shall submit such plan to the planning commission of the community in which the redevelopment project area is located for review and recommendations as to its conformity with the general plan for the development of the community as a whole. The planning commission shall submit its written recommendations with respect to the proposed redevelopment plan to the authority within thirty days after receipt of the plan for review. Upon receipt of the recommendations of the planning commission or, if no recommendations are received within said thirty days, then without such recommendations, an authority may recommend the redevelopment plan to the governing body of the community for approval.

(f) Prior to recommending a redevelopment plan to the governing body for approval, an authority shall consider whether the proposed land uses and building requirements in the redevelopment project area are designed with the general purpose of accomplishing, in conformance with the general plan, a coordinated, adjusted and harmonious development of the community and its environs which will, in accordance with present and future needs, promote health, safety, morals, order, convenience, prosperity and the general welfare, as well as efficiency and economy in the process of development; including, among other things, adequate provision for traffic, vehicular parking, the promotion of safety from fire, panic and other dangers, adequate provision for light and air, the promotion of the healthful and convenient distribution of population, the provision of adequate transportation, water, sewerage and other public utilities, schools, parks, recreational and community facilities and other public requirements, the promotion of sound design and arrangement, the wise and efficient expenditure of public funds, the prevention of the recurrence of insanitary or unsafe dwelling accommodations, slums, or conditions of blight, and the provision of adequate, safe and sanitary dwelling accommodations.

(g) The recommendation of a redevelopment plan by an authority to the governing body shall be accompanied by the recommendations, if any, of the planning commission concerning the redevelopment plan; a statement of the proposed method and estimated cost of the acquisition and preparation for redevelopment of the redevelopment project area and the estimated proceeds or revenues from its disposal to redevelopers; a statement of the proposed method of financing the redevelopment project; and a statement of a feasible method proposed for the relocation of families to be displaced from the redevelopment project area.

(h) The governing body of the community shall hold a public hearing on any redevelopment plan or substantial modification thereof recommended by the authority, after public notice thereof by publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the community. Public notice shall also include notice by certified letter, return receipt requested to each property owner of record of all affected properties of the proposed project. The notice shall include:

(1) Notice of the public hearing time, date and location;

(2) The right to have an inspection by the municipal authority to determine if the property is blighted or unblighted;

(3) The inspection procedures; and

(4) The rights the property owner has pursuant to section six-a of this article relating to unblighted properties in blighted or slum areas.

The last publication shall be at least ten days prior to the date set for the hearing. The notice shall describe the time, date, place and purpose of the hearing and shall also generally identify the area to be redeveloped under the plan. All interested parties shall be afforded at such public hearing a reasonable opportunity to express their views respecting the proposed redevelopment plan. The municipal authority shall consider reasonable alternatives for the redevelopment project that will minimize the use of eminent domain against any properties that are not blighted.

(i) Following such hearing, the governing body may approve a redevelopment plan if it finds that said plan is feasible and in conformity with the general plan for the development of the community as a whole: Provided, That if the redevelopment project area is a blighted area, the governing body must also find that a shortage of housing of sound standards and designs, adequate for family life, exists in the community; the need for housing accommodations has been or will be increased as a result of the clearance of slums in other areas under redevelopment; the conditions of blight in the redevelopment project area and the shortage of decent, safe and sanitary housing cause or contribute to an increase in and spread of disease and crime and constitute a menace to the public health, safety, morals or welfare; and that the development of the blighted area for predominantly residential uses is an integral part of and essential to the program of the community for the elimination of slum areas. A redevelopment plan which has not been approved by the governing body when recommended by the authority may again be recommended to it with any modifications deemed advisable.

(j) A redevelopment plan may be modified at any time by the authority: Provided, That if modified after the lease or sale of real property in the redevelopment project area, the modification must be consented to by the redeveloper or redevelopers of such real property or his successor, or their successors in interest affected by the proposed modification. Where the proposed modification will substantially change the redevelopment plan as previously approved by the governing body the modification must similarly be approved by the governing body.

§16-18-6a. Municipal nonblighted property in slum or blight areas.

(a) The municipal authority shall have the burden to show that a property is blighted. If the property owner does not allow the authority to conduct an inspection of the property to determine whether it is appropriate to deem the property blighted or unblighted, then it is a rebuttable presumption that the property is blighted.

(b) When any area has been declared to be slum and blighted, pursuant to the provisions of this article, if a private property within that area is found to not be a blighted property, then to condemn the property pursuant to article two, chapter fifty four of the code, the municipal authority must demonstrate, in addition to all other lawful condemnation requirements, that the project or program requiring the clearance of the slum and blighted area:

(1) Cannot proceed without the condemnation of the private property at issue;

(2) That the private property shown not to be blighted cannot be integrated into the proposed project or program once the slum and blighted area surrounding such property is taken and cleared;

(3) That the condemnation of the unblighted property is necessary for the clearance of an area deemed to be slum or blighted;

(4) That other alternatives to the condemnation of the unblighted property are not reasonably practical;

(5) That every reasonable effort has been taken to ensure that the unblighted property and its owners have been given a reasonable opportunity to be included in the redevelopment project or plan without the use of eminent domain;

(6) That no alternative site within the slum and blighted area is available for purchase by negotiation that might substitute as a site for the unblighted property;

(7) That the redevelopment project or plan could not be restructured to avoid the taking of the unblighted property;

(8) That the redevelopment project or plan could not be carried out without the use of eminent domain; and

(9) That there is specific use for the unblighted property to be taken and a plan to redevelop and convert the unblighted property from its current use to the stated specific use basically exists.

(c) In any case when the municipal authority has decided to pursue condemnation, the property owner shall have the right to seek review in the circuit court within the county wherein the property lies. Prior to authorizing condemnation as provided pursuant to article two, chapter fifty-four of the code, the court must find that the property is blighted, or if unblighted, that the authority has met the requirements of subsection (b) of this section.

(d) All of the rights and remedies contained in article three, chapter fifty-four of this code concerning relocation assistance are available to the private property owner whose unblighted property is being condemned, and if the property to be condemned contains a business owned by the property owner, the property owner is entitled to the amount, if any, which when added to the acquisition cost of the property acquired by the condemning authority, equals the reasonable cost of obtaining a comparable building or property having substantially the same characteristics of the property sought to be taken.

§16-18-7. Disposal of property in redevelopment project.

(a) An authority may sell, lease, exchange or otherwise transfer real property or any interest therein in a redevelopment project area to any redeveloper for residential, recreational, commercial, industrial or other uses or for public use in accordance with the redevelopment plan, subject to such covenants, conditions and restrictions as it may deem to be in the public interest or to carry out the purposes of this article: Provided, That such sale, lease, exchange or other transfer, and any agreement relating thereto, may be made only after, or subject to, the approval of the redevelopment plan by the governing body of the community. Such real property shall be sold, leased or transferred at its fair value for uses in accordance with the redevelopment plan notwithstanding such value may be less than the cost of acquiring and preparing such property for redevelopment. In determining the fair value of real property for uses in accordance with the redevelopment plan, an authority shall take into account and give consideration to the uses and purposes required by such plan; the restrictions upon, and the covenants, conditions and obligations assumed by the redeveloper of, such property; the objectives of the redevelopment plan for the prevention of the recurrence of slum or blighted areas; and such other matters as the authority shall specify as being appropriate. In fixing rentals and selling prices, an authority shall give consideration to appraisals of the property for such uses made by land experts employed by the authority.

(b) An authority shall publish the following notice as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the community. The notice shall be published prior to the consideration of any redevelopment contract proposal, and shall invite proposals from, and make available all pertinent information to private redevelopers or any persons interested in undertaking the redevelopment of an area, or any part thereof, which the governing body has declared to be in need of redevelopment. Such notice shall identify the area, and shall state that such further information as is available may be obtained at the office of the authority. The authority shall consider all redevelopment proposals and the financial and legal ability of the prospective redevelopers to carry out their proposals and may negotiate with any redevelopers for proposals for the purchase or lease of any real property in the redevelopment project area. The authority may accept such redevelopment contract proposal as it deems to be in the public interest and in furtherance of the purposes of this article: Provided, That the authority has, not less than thirty days prior thereto, notified the governing body in writing of its intention to accept such redevelopment contract proposal. Thereafter, the authority may execute such redevelopment contract in accordance with the provisions of subsection (a) and deliver deeds, leases and other instruments and take all steps necessary to effectuate such redevelopment contract. In its discretion, the authority may, without regard to the foregoing provisions of this subsection, dispose of real property in a redevelopment project area to private redevelopers for redevelopment under such reasonable competitive bidding procedures as it shall prescribe, subject to the provisions of subsection (a).

(c) In carrying out a redevelopment project, an authority may:

(1) Convey to the community in which the project is located, such real property as, in accordance with the redevelopment plan, is to be laid out into streets, alleys, and public ways;

(2) Grant servitudes, easements and rights-of-way, for public utilities, sewers, streets and other similar facilities, in accordance with the redevelopment plan; and

(3) Convey to the municipality, county or other appropriate public body, such real property as, in accordance with the redevelopment plan, is to be used for parks, schools, public buildings, facilities or other public purposes.

(d) An authority may temporarily operate and maintain real property in a redevelopment project area pending the disposition of the property for redevelopment, without regard to the provisions of subsections (a) and (b) above, for such uses and purposes as may be deemed desirable even though not in conformity with the redevelopment plan.

§16-18-8. Eminent domain.

(a) An authority shall have the right to acquire by the exercise of the power of eminent domain, pursuant to the limitations contained in subdivision (11), section two, article one, chapter fifty-four, any real property which it may deem necessary for a redevelopment project or for its purposes under this article after the adoption by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes. An authority may exercise the power of eminent domain in the manner provided for condemnation proceedings, in chapter fifty-four of the Code of West Virginia, 1931, as amended, or it may exercise the power of eminent domain in the manner now or which may be hereafter provided by any other statutory provisions for the exercise of the power of eminent domain. Property already devoted to a public use may be acquired in like manner: Provided, That no real property belonging to the municipality, the county or the state may be acquired without its consent.

(b) When an authority has found and determined by resolution that certain real property described therein is necessary for a redevelopment project or for its purposes under this article, the resolution shall be conclusive evidence that the acquisition of such real property is necessary for the purposes described therein.

§16-18-8a. Relocation of public utility lines or facilities to accommodate urban redevelopment or slum clearance projects.

In the event any urban renewal authority or other public body shall determine that any public utility line or facility located upon, across or under any portion of a street, avenue, highway, road or other public place or way shall be temporarily or permanently readjusted, removed, relocated, changed in grade or otherwise altered (each and all hereinafter for convenience referred to as "relocation") in order to accommodate any urban redevelopment or slum clearance project undertaken pursuant to the provisions of this article, the cost of such relocation shall be borne by the urban renewal authority or other public body making the same necessary.

For purposes of this section, the term "cost of relocation" shall include the entire amount paid by such utility, exclusive of any right-of-way costs incurred by such utility, properly attributable to such relocation after deducting therefrom any increase in the value of the new line or facility and salvage derived from the old line or facility.

The cost of relocating utility lines or facilities, as defined herein, in connection with any federal-aid urban redevelopment or slum clearance project is hereby declared to be a cost of such project.

Under no circumstances whatever shall the foregoing provisions of this section be applicable to any conventional urban renewal project, urban redevelopment or slum clearance project or neighborhood development project for which an application for federal funding shall have been made prior to the effective date of this section.

§16-18-9. Acquisition and development of undeveloped vacant land.

Upon a determination, by resolution, of the governing body of the community in which such land is located that the acquisition and development of undeveloped vacant land, not within a slum or blighted area, is essential to the proper clearance or redevelopment of slum or blighted areas or a necessary part of the general slum clearance program of the community, the acquisition, planning, preparation for development or disposal of such land shall constitute a redevelopment project which may be undertaken by the authority in the manner provided in the foregoing sections. The determination by the governing body shall be in lieu of the declaration required by section six-b above but shall not be made until the governing body finds that there is a shortage of decent, safe and sanitary housing in the community; that such undeveloped vacant land will be developed for predominantly residential uses; and that the provision of dwelling accommodations on such undeveloped vacant land is necessary to accomplish the relocation, in decent, safe and sanitary housing in the community, of families to be displaced from slum or blighted areas which are to be redeveloped: Provided, however, That in the undertaking of redevelopment projects on a regional or unified metropolitan basis, involving the acquisition and development of undeveloped vacant land in one community as an adjunct to the redevelopment of slum or blighted areas in another community, each determination or finding required in this subsection shall be made by the governing body of the community with respect to which the determination or finding relates.

§16-18-10. Bonds.

(a) An authority shall have power to issue bonds from time to time in its discretion for any of its corporate purposes including the payment of principal and interest upon any advances for surveys and plans for redevelopment projects. An authority shall also have power to issue refunding bonds for the purpose of paying or retiring or in exchange for bonds previously issued by it. An authority may issue such types of bonds as it may determine, including (without limiting the generality of the foregoing) bonds on which the principal and interest are payable:

(1) Exclusively from the income, proceeds and revenues of the redevelopment project financed with the proceeds of such bonds; or

(2) Exclusively from the income, proceeds and revenues of any of its redevelopment projects whether or not they are financed in whole or in part with the proceeds of such bonds: Provided, That any such bonds may be additionally secured by a pledge of any loan, grant or contributions, or parts thereof, from the federal government or other sources, or a mortgage of any redevelopment project or projects of the authority.

(b) Neither the commissioners of an authority nor any person executing the bonds shall be liable personally on the bonds by reason of the issuance thereof. The bonds and other obligations of the authority (and such bonds and obligations shall so state on their face) shall not be a debt of the municipality, the county or the state and neither the municipality, the county nor the state shall be liable thereon, nor in any event shall such bonds or obligations be payable out of any funds or properties other than those of said authority acquired for the purposes of this article. The bonds shall not constitute an indebtedness within the meaning of any Constitutional or statutory debt limitation or restriction. Bonds of an authority are declared to be issued for an essential public and governmental purpose and to be public instrumentalities and, together with interest thereon and income therefrom, shall be exempt from all taxes. Such bonds need not be offered by the authority to the state sinking fund commission at any time and an authority shall not be required to turn over any surplus or sinking funds to the state sinking fund commission.

(c) Bonds of an authority shall be authorized by its resolution and may be issued in one or more series and shall bear such date or dates, be payable upon demand or mature at such time or times, bear interest at such rate or rates, not exceeding twelve per centum per annum, be in such denomination or denominations, be in such form either coupon or registered, carry such conversion or registration privileges, have such rank or priority, be executed in such manner, be payable in such medium of payment, at such place or places, and be subject to such terms of redemption (with or without premium) as such resolution, its trust indenture or mortgage may provide.

(d) The bonds shall be sold at not less than par at public sale held after notice published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be the area of operation. Such publication shall be made at least ten days prior to such sale. The notice may be published in such other medium of publication as the authority may determine: Provided, That such bonds may be sold to the federal government at private sale at not less than par, and, in the event less than all of the bonds authorized in connection with any project or projects are sold to the federal government, the balance of such bonds may be sold at private sale at not less than par at an interest cost to the authority of not to exceed the interest cost to the authority of the portion of the bonds sold to the federal government.

(e) In case any of the commissioners or officers of the authority whose signatures appear on any bonds or coupons shall cease to be such commissioners or officers before the delivery of such bonds, such signatures shall, nevertheless, be valid and sufficient for all purposes, the same as if such commissioners or officers had remained in office until such delivery. Any provision of any law to the contrary notwithstanding, any bonds issued pursuant to this article shall be fully negotiable.

(f) In any suit, action or proceedings involving the validity or enforceability of any bond of an authority or the security therefor, any such bond reciting in substance that it has been issued by the authority to aid in financing a redevelopment project, as herein defined, shall be conclusively deemed to have been issued for such purpose and such project shall be conclusively deemed to have been planned, located and carried out in accordance with the purposes and provisions of this article.

§16-18-11. Powers in connection with issuance of bonds or incurring obligations under leases.

(a) In connection with the issuance of bonds or the incurring of obligations under leases and in order to secure the payment of such bonds or obligations, an authority, in addition to its other powers, shall have power:

(1) To pledge all or any part of its gross or net rents, fees or revenues to which its right then exists or may thereafter come into existence.

(2) To mortgage all or any part of its real or personal property, then owned or thereafter acquired.

(3) To covenant against pledging all or any part of its rents, fees and revenues, or against mortgaging all or any part of its real or personal property, to which its right or title then exists or may thereafter come into existence or against permitting or suffering any lien on such revenues or property; to covenant with respect to limitations on its right to sell, lease or otherwise dispose of any redevelopment project or any part thereof; and to covenant as to what other, or additional debts or obligations may be incurred by it.

(4) To covenant as to the bonds to be issued and as to the issuance of such bonds in escrow or otherwise, and as to the use and disposition of the proceeds thereof; to provide for the replacement of lost, destroyed or mutilated bonds; to covenant against extending the time for the payment of its bonds or interest thereon; and to covenant for the redemption of the bonds and to provide the terms and conditions thereof.

(5) To covenant (subject to the limitations contained in this article) as to the amount of revenues to be raised each year or other period of time by rents, fees and other revenues, and as to the use and disposition to be made thereof; to create or to authorize the creation of special funds for moneys held for operating costs, debt service, reserves, or other purposes, and to covenant as to the use and disposition of the moneys held in such funds.

(6) To prescribe the procedure, if any, by which the terms of any contract with bondholders may be amended or abrogated, the amount of bonds the holders of which must consent thereto and the manner in which such consent may be given.

(7) To covenant as to the use, maintenance and replacement of any or all of its real or personal property, the insurance to be carried thereon and the use and disposition of insurance moneys, and to warrant its title to such property.

(8) To covenant as to the rights, liabilities, powers and duties arising upon the breach by it of any covenants, condition or obligation; and to covenant and prescribe as to events of default and terms and conditions upon which any or all of its bonds or obligations shall become or may be declared due before maturity, and as to the terms and conditions upon which such declaration and its consequences may be waived.

(9) To vest in any obligees of the authority the right to enforce the payment of the bonds or any covenants securing or relating to the bonds; to vest in any obligee or obligees holding a specified amount in bonds the right, in the event of a default by said authority, to take possession of and use, operate and manage any redevelopment project or any part thereof, title to which is in the authority, or any funds connected therewith, and to collect the rents and revenues arising therefrom and to dispose of such moneys in accordance with the agreement of the authority with such obligees; to provide for the powers and duties of such obligees and to limit the liabilities thereof; and to provide the terms and conditions upon which such obligees may enforce any covenant or rights securing or relating to the bonds.

(10) To exercise all or any part or combination of the powers herein granted; to make such covenants (other than and in addition to the covenants herein expressly authorized) and to do any and all such acts and things as may be necessary or convenient or desirable in order to secure its bonds, or, in the absolute discretion of said authority, as will tend to make the bonds more marketable notwithstanding that such covenants, acts or things may not be enumerated herein.

(b) An authority shall have power by its resolution, trust indenture, mortgage, lease or other contract to confer upon any obligee holding or representing a specified amount in bonds, the right (in addition to all rights that may otherwise be conferred), upon the happening of an event of default as defined in such resolution or instrument, by suit, action or proceeding in any court of competent jurisdiction:

(1) To cause possession of any redevelopment project or any part thereof, title to which is in the authority, to be surrendered to any such obligee;

(2) To obtain the appointment of a receiver of any redevelopment project of said authority or any part thereof, title to which is in the authority, and of the rents and profits therefrom. If such receiver be appointed, he may enter and take possession of, carry out, operate and maintain such project or any part thereof and collect and receive all fees, rents, revenues, or other charges thereafter arising therefrom, and shall keep such moneys in a separate account or accounts and apply the same in accordance with the obligations of said authority as the court shall direct; and

(3) To require said authority and the commissioner, officers, agents and employees thereof to account as if it and they were the trustees of an express trust.

§16-18-12. Rights of obligee.

An obligee of an authority shall have the right in addition to all other rights which may be conferred on such obligee, subject only to any contractual restrictions binding upon such obligee:

(a) By mandamus, suit, action or proceeding at law or in equity to compel said authority and the commissioners, officers, agents or employees thereof to perform each and every term, provision and covenant contained in any contract of said authority with or for the benefit of such obligee, and to require the carrying out of any or all such covenants and agreements of said authority and the fulfillment of all duties imposed upon said authority by this article; and

(b) By suit, action or proceeding in equity, to enjoin any acts or things which may be unlawful, or the violation of any of the rights of such obligee of said authority.

§16-18-13. Bonds as legal investments.

All public officers, municipal corporations, political subdivisions and public bodies; all banks, trust companies, bankers, savings banks and institutions, building and loan associations, savings and loan associations, investment companies and other persons carrying on a banking business; all insurance companies, insurance associations, and other persons carrying on an insurance business; and all executors, administrators, curators, trustees, and other fiduciaries may legally invest any sinking funds, moneys, or other funds belonging to them or within their control in any bonds or other obligations issued by an authority pursuant to this article or by any public housing or redevelopment authority or commission, or agency or any other public body in the United States for redevelopment purposes, when such bonds and other obligations are secured by an agreement between the issuing agency and the federal government in which the issuing agency agrees to borrow from the federal government and the federal government agrees to lend to the issuing agency, prior to the maturity of such bonds or other obligations, moneys in an amount which (together with any other moneys irrevocably committed to the payment of interest on such bonds or other obligation) will suffice to pay the principal of such bonds or other obligations with interest to maturity thereon, which moneys under the terms of said agreement are required to be used for the purpose of paying the principal of and the interest on such bonds or other obligations at their maturity, and such bonds and other obligations shall be authorized security for all public deposits. It is the purpose of this section to authorize any persons, political subdivisions and officers, public or private, to use any funds owned or controlled by them for the purchase of any such bonds or other obligations. However, nothing contained in this section with regard to legal investments shall be construed as relieving any person of any duty of exercising reasonable care in selecting securities.

§16-18-14. Conveyance to federal government on default.

In any contract for financial assistance with the federal government the authority may obligate itself (which obligation shall be specifically enforceable and shall not constitute a mortgage, notwithstanding any other laws) to convey to the federal government possessions of or title to the redevelopment project and land therein to which such contract relates which is owned by the authority, upon the occurrence of a substantial default (as defined in such contract) with respect to the covenants or conditions to which the authority is subject; such contract may further provide that in case of such conveyance, the federal government may complete, operate, manage, lease, convey or otherwise deal with the redevelopment project in accordance with the terms of such contract: Provided, That the contract requires that, as soon as practicable after the federal government is satisfied that all defaults with respect to the redevelopment project have been cured and that the redevelopment project will thereafter be operated in accordance with the terms of the contract, the federal government shall reconvey to the authority the redevelopment project as then constituted.

§16-18-15. Property of authority exempt from taxes and from levy and sale by virtue of an execution.

(a) All property including funds of an authority shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall judgment against an authority be a charge or lien upon its property: Provided, however, That the provisions of this section shall not apply to or limit the right of obligees to foreclose or otherwise enforce any mortgage of an authority or the right of obligees to pursue any remedies for the enforcement of any pledge or lien given by an authority on its rents, fees, grants or revenues.

(b) The property of an authority is declared to be public property used for essential public and governmental purposes and such property and an authority shall be exempt from all taxes of the municipality, the county, the state or any political subdivision thereof: Provided, That with respect to any property in a redevelopment project, the tax exemption provided herein shall terminate when the authority sells, leases or otherwise disposes of such property to a redeveloper for redevelopment.

§16-18-16. Cooperation by public bodies.

(a) For the purpose of aiding and cooperating in the planning, undertaking or carrying out of a redevelopment project located within the area in which it is authorized to act, any public body may, upon such terms, with or without consideration, as it may determine:

(1) Dedicate, sell, convey or lease any of its interest in any property, or grant easements, licenses or any other rights or privileges therein to an authority;

(2) Cause parks, playgrounds, recreational, community, educational, water, sewer or drainage facilities, or any other works which it is otherwise empowered to undertake, to be furnished in connection with a redevelopment project;

(3) Furnish, dedicate, close, vacate, pave, install, grade, regrade, plan or replan streets, roads, sidewalks, ways or other places, which it is otherwise empowered to undertake;

(4) Plan or replan, zone or rezone any part of the public body or make exceptions from building regulations and ordinances if such functions are of the character which the public body is otherwise empowered to perform;

(5) Cause administrative and other services to be furnished to the authority of the character which the public body is otherwise empowered to undertake or furnish for the same or other purposes;

(6) Incur the entire expense of any public improvements made by such public body in exercising the powers granted in this section;

(7) Do any and all things necessary or convenient to aid and cooperate in the planning or carrying out of a redevelopment plan;

(8) Lend, grant or contribute funds to an authority;

(9) Employ any funds belonging to or within the control of such public body, including funds derived from the sale or furnishing of property, service, or facilities to an authority, in the purchase of the bonds or other obligations of an authority and, as the holder of such bonds or other obligations, exercise the rights connected therewith; and

(10) Enter into agreements (which may extend over any period, notwithstanding any provision or rule of law to the contrary), with an authority respecting action to be taken by such public body pursuant to any of the powers granted by this article. If at any time title to, or possession of, any redevelopment project is held by any public body or governmental agency, other than the authority, authorized by law to engage in the undertaking, carrying out or administration of redevelopment projects, including any agency or instrumentality of the United States of America, the provisions of such agreements shall inure to the benefit of and may be enforced by such public body or governmental agency.

(b) Any sale, conveyance, lease or agreement provided for in this section may be made by a public body without appraisal, public notice, advertising or public bidding.

§16-18-17. Grant of funds by community.

Any community located in whole or in part within the area of operation of an authority may grant funds to an authority for the purpose of aiding such authority in carrying out any of its powers and functions under this article. To obtain funds for this purpose, the community may levy taxes or may issue and sell its bonds. Any bonds to be issued by the community pursuant to the provisions of this section shall be issued in the manner and within the limitations except as herein otherwise provided, prescribed by the laws of this state for the issuance and authorization of such bonds for public purposes generally.

§16-18-18. Cooperation between authorities.

Any two or more authorities may join or cooperate with one another in the exercise of any or all of the powers conferred hereby for the purpose of planning, undertaking or financing a redevelopment project or projects located within the area or areas of operation of any one or more of said authorities. When a redevelopment project or projects are planned, undertaken or financed on a regional or unified metropolitan basis, the terms "governing body" and "community" as used in this article shall mean the governing bodies of the appropriate communities and the appropriate communities cooperating in the planning, undertaking or financing of such project or projects.

§16-18-19. Report.

At least once a year, an authority shall file with the mayor (or with the governing body, in the case of a county) a report of its activities for the preceding year, and shall make recommendations with reference to such additional legislation or other action as it deems necessary in order to carry out the purposes of this article.

§16-18-20. Title of purchaser.

Any instrument executed by an authority and purporting to convey any right, title or interest in any property under this article shall be conclusive evidence of compliance with the provisions of this article insofar as title or other interest of any bona fide purchasers, lessees or transferees of such property is concerned.

§16-18-21. Separability of provisions.

Notwithstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provision of this article, or the application thereof to any person or circumstances, is held invalid, the remainder of the article and the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.

§16-18-22. Inconsistent provisions.

Insofar as the provisions of this article are inconsistent with the provisions of any other law, the provisions of this article shall be controlling.

§16-18-23. Additional and supplemental powers conferred.

The powers conferred by this article shall be in addition and supplemental to the powers conferred by any other law.

§16-18-24. Additional legislative findings.

It is hereby found and declared that (a) there exist in communities of this state slum, blighted, and deteriorated areas which constitute a serious and growing menace, injurious to the public health, safety, morals and welfare of the residents of the state, and the findings and declarations heretofore made in this article with respect to slum and blighted areas are hereby affirmed and restated, (b) certain slum, blighted, or deteriorated areas, or portions thereof, may require acquisition and clearance, as provided in this article, since the prevailing condition of decay may make impracticable the reclamation of the area by conservation or rehabilitation, but other areas or portions thereof may, through the means provided in this article, as amended, be susceptible of conservation or rehabilitation in such a manner that the conditions and evils hereinbefore enumerated may be eliminated, remedied or prevented, and that salvable slum and blighted areas can be conserved and rehabilitated through appropriate public action and the cooperation and voluntary action of the owners and tenants of property in such areas, and (c) all powers conferred by this article, as amended, are for public uses and purposes for which public money may be expended and such other powers exercised, and the necessity in the public interest for the provisions of this article, as amended, is hereby declared as a matter of legislative determination. A community, to the greatest extent it determines to be feasible in carrying out the provisions of this article, as amended, shall afford maximum opportunity, consistent with the sound needs of the community as a whole, to the rehabilitation or redevelopment of areas by private enterprise.

§16-18-25. Urban renewal projects.

In addition to its authority under any other section of this article, an authority is hereby authorized to plan and undertake urban renewal projects. As used in this article, an urban renewal project may include undertakings and activities for the elimination (and for the prevention of the development or spread) of slums or blighted, deteriorated, or deteriorating areas and may involve any work or undertaking for such purpose constituting a redevelopment project or any rehabilitation or conservation work, or any combination of such undertaking or work. Such undertaking and work may include (1) carrying out plans for a program of voluntary or compulsory repair and rehabilitation of buildings or other improvements; (2) acquisition of real property and demolition, removal, or rehabilitation of buildings and improvements thereon where necessary to eliminate unhealthful, insanitary or unsafe conditions, lessen density, reduce traffic hazards, eliminate obsolete or other uses detrimental to the public welfare, or to otherwise remove or prevent the spread of blight or deterioration, or to provide land for needed public facilities; (3) installation, construction, or reconstruction of streets, utilities, parks, playgrounds, and other improvements necessary for carrying out the objectives of the urban renewal project; and (4) the disposition, for uses in accordance with the objectives of the urban renewal project, of any property or part thereof acquired in the area of such project: Provided, That such disposition shall be in the manner prescribed in this article for the disposition of property in a redevelopment project area.

Notwithstanding any other provisions of this article, where the local governing body certifies that an area is in need of redevelopment or rehabilitation as a result of a flood, fire, hurricane, earthquake, storm or other catastrophe respecting which the Governor of the state has certified the need for disaster assistance under Public Law 875, Eighty-first Congress, or other federal law, the local governing body may approve an urban renewal plan and an urban renewal project with respect to such area without regard to any provisions of this article requiring public hearings or requiring that the urban renewal plan conform to a general plan for the community as a whole, or that the urban renewal area be a slum area, or a blighted, deteriorated, or deteriorating area, or that the urban renewal area be predominantly residential in character or be developed or redeveloped for residential uses.

§16-18-26. Urban renewal plan.

Any urban renewal project undertaken pursuant to the preceding section shall be undertaken in accordance with an urban renewal plan for the area of the project. As used in this article, an "urban renewal plan" means a plan, as it exists from time to time, for an urban renewal project, which plan (1) shall conform to the general plan for the community as a whole, except as provided for disaster areas, and (2) shall be sufficiently complete to indicate such land acquisition, demolition and removal of structures, redevelopment, improvements, and rehabilitation as may be proposed to be carried out in the area of the urban renewal project, zoning and planning changes, if any, land uses, maximum densities, building requirements, and the plan's relationship to definite local objectives representing appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities, and other public improvements. An urban renewal plan shall be prepared and approved pursuant to the same procedure as provided in this article with respect to a redevelopment plan. Where real property acquired by a community is to be transferred in accordance with the urban renewal plan, any contract for such transfer and the urban renewal plan (or such part or parts of such contract or plan as the authority may determine) may be recorded in the land records of the county in such manner as to afford actual or constructive notice thereof.

§16-18-27. Powers with respect to urban renewal.

A community or a public agency created under this article, shall have all the powers necessary or convenient to undertake and carry out urban renewal plans and urban renewal projects, including the authority to acquire and dispose of property, to issue bonds and other obligations, to borrow and accept grants from the federal government or other source and to exercise the other powers which this article confers on an authority with respect to redevelopment projects. In connection with the planning and undertaking of any urban renewal plan or urban renewal project, the authority, the community, and all public and private officers, agencies, and bodies shall have all the rights, powers, privileges, and immunities which they have with respect to a redevelopment plan or redevelopment project, in the same manner as though all of the provisions of this article applicable to a redevelopment plan or redevelopment project were applicable to an urban renewal plan or urban renewal project: Provided, That for such purpose the word "redevelopment" as used in this article (except in this section and in the definition of "redevelopment project" in section three shall mean "urban renewal," and the word "slum" and the word "blighted" as used in this article (except in this section and in the definitions in section three) shall mean "blighted, deteriorated, or deteriorating," and the finding prescribed in subsection (b) of section four with respect to a blighted area shall not be a required: Provided further, That any disaster area referred to in section twenty-five (b) shall constitute a "blighted area." In addition to the surveys and plan which an authority is otherwise authorized to make, an authority is hereby specifically authorized to make (i) plans for carrying out a program of voluntary repair and rehabilitation of buildings and improvements, (ii) plans for the enforcement of laws, codes, and regulations relating to the use of land and the use and occupancy of buildings and improvements, and to the compulsory repair, rehabilitation, demolition, or removal of buildings and improvements, (iii) plans for the relocation of persons (including families, business concerns and others) displaced by an urban renewal project, (iv) preliminary plans outlining urban renewal activities for neighborhoods to embrace two or more urban renewal areas, and (v) preliminary surveys to determine if the undertaking and carrying out of an urban renewal project are feasible. The authority is authorized to make relocation payments to or with respect to persons (including families, business concerns and others) displaced by an urban renewal project, for moving expenses and losses of property for which reimbursement of compensation is not otherwise made, including the making of such payments financed by the federal government. The authority is also authorized to develop, test, and report methods and techniques, and carry out demonstrations and other activities, for the prevention and the elimination of slums and urban blight.

§16-18-28. Assistance to urban renewal project by communities and other public bodies.

Any community or other public body is hereby authorized (without limiting any provisions in the preceding section to do any and all things necessary to aid and cooperate in the planning and undertaking of an urban renewal project in the area in which such community or public body is authorized to act, including the furnishing of such financial and other assistance as the community or public body is authorized by this article to furnish for or in connection with a redevelopment plan or redevelopment project. An authority is hereby authorized to delegate to a community or other public body any of the powers or functions of the authority with respect to the planning or undertaking of an urban renewal project in the area in which such community or public body is authorized to act, and such community or public body is hereby authorized to carry out or perform such powers or functions for the authority. Any public body is hereby authorized to enter into agreements (which may extend over any period, notwithstanding any provision or rule of law to the contrary) with any other public body or bodies respecting action to be taken pursuant to any of the powers granted by this article, including the furnishing of funds or other assistance in connection with an urban renewal plan or urban renewal project.

§16-18-29. Authority of governing body to prepare workable program; article confers additional and supplemental powers.

The governing body of the community, or such public officer or public body as it may designate, is hereby authorized to prepare a workable program (which may include an official plan of action, as it exists from time to time for effectively dealing with the problem of urban slums and blighted, deteriorated, or deteriorating areas within the community and for the establishment and preservation of a well-planned community with well-organized residential neighborhoods of decent homes and suitable living environment for adequate family life) for utilizing appropriate private and public resources to eliminate, and prevent the development or spread of, slums and urban blight and deterioration, to encourage needed urban rehabilitation, to provide for the redevelopment of blighted, deteriorated, or slum areas, or to undertake such of the aforesaid activities or other feasible activities as may be suitably employed to achieve the objectives of such a program.

The powers conferred by this article shall be in addition and supplemental to the powers conferred by any other law.

§16-19-1. Short title.

This article may be cited as the "Revised Anatomical Gift Act."

§16-19-2. Applicability.

This article applies to an anatomical gift or to an amendment to, revocation of or refusal to make an anatomical gift, whenever made.

§16-19-3. Definitions.

As used in this article:

"Adult" means an individual who is at least 18 years of age.

"Agent" means an individual:

(1) Authorized by a medical power of attorney to make health care decisions on behalf of a prospective donor; or

(2) Expressly authorized by any other record signed by the donor to make an anatomical gift on his or her behalf.

"Anatomical gift" means a donation of all or part of a human body, to take effect after the donor’s death, for the purpose of transplantation, therapy, research, or education.

"Authorized person" means a person other than the donor who is authorized to make an anatomical gift of the donor’s body or part by §16-19-4 or §16-19-9 of this code.

 "Certification of death" means a written pronouncement of death by an attending physician. Certification is required before an attending physician can allow removal of any part from the decedent’s body for transplant purposes.

"Decedent" means a deceased individual whose body is or may be the source of an anatomical gift. The term "decedent" includes a stillborn infant and, subject to restrictions imposed by law other than this article, a fetus.

"Disinterested witness" means a witness other than the spouse, child, parent, sibling, grandchild, grandparent, or guardian of, or another adult who exhibited special care and concern for, an individual who has made, amended, revoked, or refused to make an anatomical gift. The term "disinterested witness" does not include a person to whom an anatomical gift may pass pursuant to §16-19-11 of this code.

"Document of gift" means a donor card or other record used to make an anatomical gift. The term includes a statement or symbol on a driver’s license, identification card, hunting or fishing license, or donor registry.

"Donor" means an individual whose body or part is the subject of an anatomical gift.

"Donor registry" means a database that contains records of anatomical gifts and amendments to, or revocations, of anatomical gifts.

"Driver’s license" means a license or permit issued by the Division of Motor Vehicles to operate a vehicle.

"Eye bank" means a person licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of human eyes or portions of human eyes.

"Guardian" means a person appointed by a court to make decisions regarding the support, care, education, health, or welfare of an individual. The term "guardian" does not include guardian ad litem.

"Hunting or fishing license" means a license issued by the Division of Natural Resources pursuant to §20-2-1 et seq. of this code, for hunting and fishing in the state of West Virginia.

 "Hospital" means a facility licensed as a hospital under the law of any state or a facility operated as a hospital by the United States, a state, or a subdivision of a state.

"Identification card" means an identification card issued by the Division of Motor Vehicles pursuant to §17B-2-1 of this code.

"Know" means to have actual knowledge. It does not include constructive notice and other forms of imputed knowledge.

"Medical examiner" means an individual appointed pursuant to §61-12-3 et seq. of this code to perform death investigations and to establish the cause and manner of death. The term "medical examiner" includes any person designated by the medical examiner to perform any duties required by this article.

"Minor" means an individual who is under 18 years of age.

"Organ procurement organization" means a nonprofit entity designated by the Secretary of the United States Department of Health and Human Services as an organ procurement organization pursuant to 42 U.S.C. §273(b).

"Parent" means another person’s natural or adoptive mother or father whose parental rights have not been terminated by a court of law.

"Part" means an organ, an eye, or tissue of a human being. The term does not include the whole body.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

"Physician" means an individual authorized to practice medicine or osteopathy under the law of any state.

"Physician assistant" has the meaning provided in §30-3E-1 of this code.

"Procurement organization" means an eye bank, organ procurement organization, or tissue bank.

"Prospective donor" means an individual who is dead or near death and has been determined by a procurement organization to have a part that could be medically suitable for transplantation, therapy, research, or education. The term "prospective donor" does not include an individual who has made a refusal.

"Reasonably available" means able to be contacted by a procurement organization without undue effort and willing and able to act in a timely manner consistent with existing medical criteria necessary for the making of an anatomical gift.

"Recipient" means an individual into whose body a decedent’s part has been or is intended to be transplanted.

"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

"Revocation" means the affirmative declaration of the potential donor’s withdrawal of their decision to make or not make a document of gift. It does not have the same meaning as a refusal but only establishes that the potential donor chooses not to make an affirmative declaration of their wishes.

"Refusal" means a record created under §16-19-7 of this code that expressly states an individual’s intent to bar other persons from making an anatomical gift of his or her body or part.

"Sign" means to execute or adopt a tangible symbol or attach to or logically associate with the record an electronic symbol, sound or process, with the present intent to authenticate or adopt a record.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

"Surrogate" means an individual 18 years of age or older who is reasonably available, is willing to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care decisions, and is identified or selected by the attending physician or advanced nurse practitioner in accordance with §16-30-1 et seq. of this code as the person who is to make those decisions in accordance with the provisions of this article.

"Technician" means an individual qualified to remove or process parts by an organization that is licensed, accredited, or regulated under federal or state law. The term "technician" includes an enucleator, i.e., an individual who removes or processes eyes or parts of eyes.

"Tissue" means a portion of the human body other than an organ or an eye. The term "tissue" does not include blood unless the blood is donated for the purpose of research or education.

"Tissue bank" means a person that is licensed, accredited, or regulated under federal or state law to engage in the recovery, screening, testing, processing, storage, or distribution of tissue.

"Transplant hospital" means a hospital that furnishes organ transplants and other medical and surgical specialty services required for the care of transplant patients.

§16-19-4. Who may make anatomical gift before donor's death.

Subject to section eight of this article, an anatomical gift may be made during the life of the donor for the purpose of transplantation, therapy, research or education by:

(1) The donor, if the donor is an adult;

(2) The donor, if the donor is a minor and is emancipated or sixteen (16) years of age or older;

(3) An agent of the donor, unless the medical power of attorney or other record prohibits the agent from making an anatomical gift;

(4) A parent of the donor, if the donor is an unemancipated minor; or

(5) The donor's guardian.

§16-19-5. Manner of making anatomical gift before donor’s death.

(a) A donor may make an anatomical gift:

(1) By authorizing a statement or symbol to be imprinted on his or her driver’s license, identification card, or hunting or fishing license indicating that he or she has made an anatomical gift;

(2) In a will;

(3) During a terminal illness or injury, by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness; or

(4) As provided in subsection (b) of this section.

(b) (1) A donor or a person authorized by §16-9-4 of this code may make a gift by:

(A) A donor card or other record signed by the donor or the authorized person; or

(B) Authorizing a statement or symbol indicating that the donor has made an anatomical gift to be included on a donor registry.

(2) If the donor or the authorized person is physically unable to sign a record, another individual may sign at the direction of the donor or the authorized person if the document of gift:

(A) Is witnessed and signed by at least two adults, at least one of whom is a disinterested witness; and

(B) Contains a statement that it has been signed and witnessed as required by paragraph (A) of this subdivision.

(c) Revocation, suspension, expiration, or cancellation of a driver’s license or identification card upon which an anatomical gift is indicated does not invalidate the gift.

(d) An anatomical gift made by will takes effect upon the donor’s death regardless of whether the will is probated. Invalidation of the will after the donor’s death does not invalidate the gift.

§16-19-6. Amending or revoking anatomical gift before donor's death.

(a) Subject to section eight of this article, a donor or a person authorized pursuant to section four of this article may amend or revoke an anatomical gift by:

(1) (A) A record signed and dated by the donor or the authorized person.

(B) If the donor or the authorized person is physically unable to sign a record, another individual may sign at the direction of the donor or the authorized person if the document of gift:

(i) Is witnessed and signed by at least two adults, at least one of whom is a disinterested witness; and

(ii) Contains a statement that it has been signed and witnessed as required by subparagraph (i) of this paragraph; or

(2) A later-executed document of gift that amends or revokes a previous anatomical gift, or portion of an anatomical gift, either expressly or by inconsistency.

(b) Subject to section eight of this article, a donor or a person authorized by section four of this article may revoke an anatomical gift by destroying or cancelling the document of gift, or the relevant portion of the document of gift, with the intent to revoke the gift.

(c) During a terminal illness or injury, a donor may amend or revoke an anatomical gift that was not made in a will by any form of communication addressed to at least two adults, at least one of whom is a disinterested witness.

(d) A donor who makes an anatomical gift in a will may amend or revoke the gift in the manner provided for amendment or revocation of wills or as provided in subsection (a) of this section.

§16-19-7. Refusal to make anatomical gift; effect of refusal.

(a) An individual may express his or her refusal to make an anatomical gift of his or her body or body parts by:

(1) A record signed by the individual. If the individual is physically unable to sign, another person acting at the direction of the individual may sign if the refusal:

(A) Is witnessed and signed by at least two adults, at least one of whom is a disinterested witness, at the request of the individual; and

(B) Contains a statement that it has been signed and witnessed as provided in paragraph (A) of this subdivision;

(2) The individual's will, regardless of whether the will is admitted to probate or invalidated after the individual's death; or

(3) During a terminal illness or injury of the individual, any form of communication made by the individual addressed to at least two adults, at least one of whom is a disinterested witness.

(b) An individual who has made a refusal may amend or revoke the refusal:

(1) In the manner provided in subsection (a) of this section for making a refusal;

(2) By subsequently making an anatomical gift pursuant to section five of this article that is inconsistent with the refusal; or

(3) By destroying or canceling the record evidencing the refusal, or the portion of the record used to make the refusal, with the intent to revoke the refusal.

(c) Except as otherwise provided in section eight of this article, in the absence of an express, contrary indication set forth in the refusal, an individual's unrevoked refusal to make an anatomical gift of his or her body or part bars all other persons from making an anatomical gift of the individual's body or part.

§16-19-8. Preclusive effect of anatomical gift, amendment, or revocation.

(a) Except as otherwise provided in subsections (g) and (f) of this section, in the absence of an express, contrary indication by the donor who has made or amended an anatomical gift, a person other than the donor is barred from making, amending or revoking an anatomical gift of the donor's body or part.

(b) If an authorized person makes an unrevoked anatomical gift or an amendment to an anatomical gift of the donor's body or part, no other person may make, amend or revoke the anatomical gift after the donor's death.

(c) A revocation of an anatomical gift by the donor or by another individual who is authorized to act on behalf of the donor under any section of this Act, is not a refusal. Following the revocation, the donor, or any person authorized by any section of this act to act on behalf of the donor before the donor's death, or any person authorized to act on behalf of the decedent after the decedent's death, may subsequently make an anatomical gift of the body or part thereof.

(d) In the absence of an express, contrary indication by the donor or the person authorized to make an anatomical gift under section four of this article, an anatomical gift of a part is neither a refusal to give another part nor a limitation on the making of an anatomical gift of another part at a later time by the donor or another person.

(e) In the absence of an express, contrary indication by the donor or other person authorized to make an anatomical gift under section four of this article, an anatomical gift of a part for one purpose is not a limitation on the making of an anatomical gift of the part for any of the other purposes by the donor or any other person under section five or section ten of this article.

(f) If a donor who is an unemancipated minor dies, a parent of the donor who is reasonably available may revoke or amend an anatomical gift of the donor's body or part.

§16-19-9. Who may make anatomical gift of decedent’s body or part.

(a) Unless barred by §16-19-7 or §16-19-8 of this code, an anatomical gift of a decedent’s body or part for purpose of transplantation, therapy, research, or education may be made by any member of the following classes of persons who is reasonably available in the order of priority listed:

(1) A person holding a medical power of attorney or another agent of the decedent at the time of death who could have made an anatomical gift under §16-19-4 of this code immediately before the decedent’s death;

(2) The spouse of the decedent, unless in the six months prior to the decedent’s death the spouse has lived separate and apart from the decedent in a separate place of abode without cohabitation or an action for divorce is pending;

(3) Adult children of the decedent;

(4) The person acting as the guardian of the decedent at the time of death;

(5) An appointed health care surrogate;

(6) Parents of the decedent;

(7) Adult siblings of the decedent;

(8) Adult grandchildren of the decedent;

(9) Grandparents of the decedent;

(10) An adult who exhibited special care and concern for the decedent; or

(11) A person authorized or obligated to dispose of the decedent’s body.

(b) If there is more than one member of a class entitled to make an anatomical gift, any member of the class may make the anatomical gift unless he or she, or a person to whom the anatomical gift may pass pursuant to §16-19-11 of this code, knows of an objection by another member of the class. If an objection is known, the majority of the members of the same class must be opposed to the donation in order for the donation to be revoked. In the event of a tie vote, the anatomical gift may proceed despite the objection by a member or members of a class.

(c) A person may not make an anatomical gift if, at the time of the decedent’s death, a person in a prior class is reasonably available to make, or to object to the making, of an anatomical gift.

§16-19-10. Manner of making, amending, or revoking anatomical gift of decedent's body or part.

(a) A person authorized to make an anatomical gift under section nine of this article may do so by:

(1) A document of gift signed by the authorized person; or

(2) An oral communication by the authorized person that is electronically recorded or is contemporaneously reduced to a record and signed by the person receiving the oral communication.

(b) An anatomical gift by a person authorized by section nine of this article may be amended or revoked orally or in writing by any member of a prior class who is reasonably available. If more than one member of the prior class is reasonably available, the gift made by the authorized person may be revoked only if a majority of the members of the same class are opposed to the anatomical gift. In the event of a tie vote, a health care surrogate shall be appointed to decide whether to honor, amend or revoke the anatomical gift of the decedent's body or part.

(c) A revocation under subsection (b) of this section is effective only if, before an incision has been made to remove a part from the donor's body or before invasive procedures have begun to prepare the recipient, the procurement organization, transplant hospital or physician or technician knows of the revocation.

§16-19-11. Persons who may receive anatomical gift; purpose of anatomical gift.

(a) An anatomical gift may be made to the following persons named in the document of gift:

(1) A hospital; accredited medical school, dental school, college, or university; organ procurement organization; or other appropriate person, for research or education;

(2) An individual designated by the person making the anatomical gift as the recipient of the part; or

(3) An eye bank or tissue bank.

(b) If an anatomical gift is made to an individual under subdivision (2), subsection (a) of this section and the donated body part cannot be transplanted into the named individual, in the absence of an express, contrary indication by the person making the anatomical gift, the part passes pursuant to subsection (g) of this section;

(c) If a document of gift makes an anatomical gift and identifies the purpose for which the gift may be used but does not designate a person described in subsection (a) of this section to receive the gift, the following rules apply:

(1) If the part is an eye and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate eye bank.

(2) If the part is tissue and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate tissue bank.

(3) If the part is an organ and the gift is for the purpose of transplantation or therapy, the gift passes to the appropriate organ procurement organization as custodian of the organ.

(4) If the part is an organ, an eye, or tissue and the gift is for the purpose of research or education, the gift passes to the appropriate procurement organization.

(d) If the document of gift states more than one purpose of an anatomical gift but does not specify the priority, the gift must be used for transplantation or therapy, if suitable. If the gift cannot be used for transplantation or therapy, the gift may be used for research or education.

(e) If the document of gift does not identify the purpose of the anatomical gift, the gift may be used only for transplantation or therapy and passes in accordance with subsection (g) of this section.

(f) If a document of gift specifies only a general intent to make an anatomical gift by using words such as "donor", "organ donor", or "body donor", or by a symbol or statement of similar import, the gift may be used for transplantation, research or therapy and passes in accordance with subsection (g) of this section.

(g) For purposes of subsections (b), (e), and (f) of this section, and anatomical gift passes in the following manner:

(1) If the part is an eye, the gift passes to the appropriate eye bank.

(2) If the part is tissue, the gift passes to the appropriate tissue bank.

(3) If the part is an organ, the gift passes to the appropriate organ procurement organization as custodian of the organ.

(h) An anatomical gift of an organ for transplantation or therapy, other than a gift to an individual described in subdivision (2), subsection (a) of this section, passes to an organ procurement organization as custodian of the organ.

(i) If an anatomical gift does not pass pursuant to subsections (a) through (h) of this section or the body or part is not used for transplantation, therapy, research, or education, custody of the body or part passes to the person under obligation to dispose of the body or part.

(j) A person may not accept an anatomical gift if he or she knows that:

(1) The gift was not effectively made pursuant to this article; or

(2) The decedent made a refusal under section seven of this article that was not revoked.

(k) For purposes of subsection (j), if a person knows that an anatomical gift was made in a document of gift, the person is presumed to know of any amendment or revocation of the gift or any refusal to make an anatomical gift in the same document of gift.

(l) Except as provided in subdivision (2), subsection (a) of this section, nothing in this article affects the allocation of organs for transplantation or therapy.

§16-19-12. Search and notification.

(a) A law-enforcement officer, firefighter, paramedic or other emergency rescuer finding an individual he or she reasonably believes is dead or near death shall as soon as practical make a reasonable search of the individual for a document of gift or other information identifying the individual as a donor or as having made a refusal. If a document of gift or a refusal is located by the search and the individual is taken to a hospital, the person who conducted the search shall send the document of gift or refusal to the hospital.

(b) If no other source of the information is immediately available, hospital staff shall search an individual reasonably believed to be dead or near death as soon as practical after the arrival at the hospital for a document of gift or other information identifying the individual as a donor or as having made a refusal.

(c) A medical examiner shall conduct a reasonable search of an individual whose body is placed in his or her custody for a document of gift or other information identifying the individual as a donor or as having made a refusal.

(d) A person is not subject to criminal or civil liability for failing to discharge the duties imposed by this section but may be subject to administrative sanctions.

§16-19-13. Delivery of document of gift not required; right to examine.

(a) A document of gift need not be delivered during the donor's lifetime to be effective.

(b) Upon or after an individual's death, a person in possession of a document of gift or a refusal with respect to the decedent shall allow: (1) A person authorized to make or object to the making of an anatomical gift with respect to the decedent; or (2) a person to whom the gift could pass under section eleven of this article to examine and copy the document of gift or refusal.

§16-19-14. Rights and duties of procurement organization and others.

(a) When a hospital refers an individual at or near death to a procurement organization, the organization shall make a reasonable search of the records of the Division of Motor Vehicles and any donor registry it knows of for the geographical area in which the individual resides to ascertain whether the individual has made an anatomical gift.

(b) The Division of Motor Vehicles shall allow a procurement organization reasonable access to information in the division’s records to ascertain whether an individual at or near death is a donor. The Commissioner of the Division of Motor Vehicles shall propose legislative rules for promulgation pursuant to §29A-3-1 et seq. of this code to facilitate procurement agencies’ access to records pursuant to this subsection.

(c) When a hospital refers an individual at or near death to a procurement organization, the organization may conduct any reasonable examination necessary to ensure the medical suitability of a part that is or could be the subject of an anatomical gift for transplantation, therapy, research, or education from a donor or a prospective donor. During the examination period, measures necessary to ensure the medical suitability of the part may not be withdrawn unless the hospital or procurement organization knows that the prospective donor expressed a contrary intent.

(d) Unless prohibited by law, at any time after a donor’s death, a person to whom a decedent’s part passes under §16-19-11 of this code may conduct any reasonable examination necessary to ensure the medical suitability of the body or part for its intended purpose.

(e) Unless prohibited by law, an examination under subsection (c) or (d) of this section may include an examination of all medical and dental records of the donor or prospective donor.

(f) Upon the death of a minor who was a donor or had signed a refusal, unless a procurement organization knows the minor is emancipated, the procurement organization shall conduct a reasonable search for the parents of the minor and provide the parents with an opportunity to revoke or amend the anatomical gift or revoke the refusal.

(g) Upon referral by a hospital under subsection (a) of this section, a procurement organization shall make a reasonable search for any person listed in §16-19-9 of this code having priority to make an anatomical gift on behalf of a prospective donor. If a procurement organization receives information that an anatomical gift to any other person was made, amended, or revoked, it shall promptly advise the other person of all relevant information.

(h) Except as provided in §16-19-22 of this code, the rights of the person to whom a part passes under §16-19-11 of this code are superior to the rights of all others. A person may accept or reject an anatomical gift, in whole or in part. Subject to the terms of the document of gift and this article, a person that accepts an anatomical gift of an entire body may allow embalming, burial, or cremation, and use of remains in a funeral service. If the gift is of a part, the person to whom the part passes under §16-19-11 of this code shall, upon the death of the donor and before embalming, burial, or cremation, cause the part to be removed without unnecessary mutilation.

(i) Neither the physician or the physician assistant who attends the decedent at death, nor the physician or the physician assistant who determines the time of death, may participate in the procedures for removing or transplanting a part from the decedent.

(j) A physician or technician may remove a donated part from the body of a donor that the physician or technician is qualified to remove.

(k) A medical examiner shall cooperate with any procurement organization to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research, or education.

(l) A part may not be removed from the body of a decedent under a medical examiner’s jurisdiction for transplantation, therapy, research, or education, nor delivered to a person for research or education, unless the part is the subject of an anatomical gift.

(m) Upon the request of a procurement organization, the medical examiner shall release to the procurement organization the name, contact information, name of the next of kin, and available medical and social history of a decedent whose body is under the medical examiner’s jurisdiction. If the decedent’s body or part is medically suitable for transplantation, therapy, research, or education, the medical examiner shall release the post-mortem examination results to the procurement organization. The procurement organization may not make a subsequent disclosure of the post-mortem examination results or other information received from the medical examiner unless the subsequent disclosure is relevant to transplantation, therapy, research, or education.

(n) If a hospital refers an individual whose death is imminent or who has died in a hospital to an organ procurement organization, and the organ procurement organization, in consultation with the individual’s attending physician or a designee, determines based upon a medical record review and other information supplied by the individual’s attending physician or a designee, that the individual may be a prospective donor; and the individual:

(1) Has not indicated in any document an intention to either limit the anatomical gifts of the individual to parts of the body which do not require a ventilator or other life-sustaining measures, or

(2) Has not indicated in any document an intention to deny making or refusing to make an anatomical gift; or

(3) Amended or revoked an anatomical gift in any document, the organ procurement organization may conduct a blood or tissue test or minimally invasive examination which is reasonably necessary to evaluate the medical suitability of a body part that is or may be the subject of an anatomical gift.

(o) Testing and examination conducted pursuant to subsection (n) shall comply with a denial or refusal to make an anatomical gift or any limitation expressed by the individual with respect to the part of the body to donate or a limitation the provision of a ventilator or other life-sustaining measures, or a revocation or amendment to an anatomical gift. The results of tests and examinations conducted pursuant to subsection (n) shall be used or disclosed only:

(1) To evaluate medical suitability for donation and to facilitate the donation process; and

(2) As otherwise required or permitted by law.

(p) A hospital may not withdraw or withhold any measures necessary to maintain the medical suitability of a body part that may be the subject of an anatomical gift until the organ procurement organization or designated requestor, as appropriate, has had the opportunity to advise the applicable persons under this article of the option to make an anatomical gift and has received or been denied authorization to proceed with recovery of the part.  

(q) Subject to the individual’s wishes under §16-19-11(c)(3) of this code, after an individual’s death, persons who may receive anatomical gift pursuant to §16-19-11 of this code may conduct any test or examination reasonably necessary to evaluate the medical suitability of the body or part for its intended purpose.

(r) The provisions of this section may not be construed to preclude a medical examiner from performing an investigation of a decedent under the medical examiner’s jurisdiction.

§16-19-15. Coordination of procurement and use.

Each hospital licensed in this state shall enter into agreements or affiliations with procurement organizations for coordinating procurement and use of anatomical gifts.

§16-19-16. Prohibited acts; sale or purchase of parts prohibited.

(a) Except as provided in subsection (b) of this section, a person who knowingly buys or sells, for valuable consideration, a part for transplantation or therapy is guilty of a felony and, upon conviction thereof, shall be fined not more than $50 or imprisoned in a state correctional facility for a term of not more than five years, or both fined and imprisoned.

(b) A person who, in order to obtain a financial gain, intentionally falsifies, forges, conceals, defaces or obliterates a document of gift, an amendment or revocation of a document of gift or a refusal is guilty of a felony and, upon conviction thereof, shall be fined not more than $50,000 or imprisoned in a state correctional facility for a term of not more than five years.

(c) Nothing in this section prohibits a person from charging reasonable amounts for the costs of removing, processing, preserving, quality control, storing, transporting, implanting or disposing of a part.

§16-19-17. Immunity.

(a) A person, including a medical examiner, who acts in accordance with this article or with the applicable anatomical gift law of another state, or attempts in good faith to do so, is not liable for the act in a civil action, criminal prosecution or administrative proceeding.

(b) Neither the person making an anatomical gift nor the donor's estate is liable for any injury or damage that results from the making or use of the gift.

(c) In determining whether an anatomical gift has been made, amended or revoked under this article, a person to whom a gift passes may rely upon an individual's representations that he or she is the donor or a person authorized to make a gift of the body or part pursuant to subsection (a), section nine of this article, unless the person to whom the gift may pass knows that the representation is untrue.

§16-19-18. Law governing validity; choice of law as to execution of document of gift; presumption of validity.

(a) A document of gift is valid if executed in accordance with:

(1) This article;

(2) The laws of the state or country where it was executed; or

(3) The laws of the state or country where the person making the anatomical gift was domiciled, has a place of residence, or was a national at the time the document of gift was executed.

(b) If a document of gift is valid under this section, the law of this state governs the interpretation of the document of gift.

(c) A person may presume that a document of gift or amendment of an anatomical gift is valid unless that person knows that it was not validly executed or was revoked.

§16-19-19. Donor registry.

(a) The Division of Motor Vehicles may establish or contract for the establishment of a donor registry.

(b) The Division of Motor Vehicles shall cooperate with a person that administers any donor registry established or contracted for pursuant to this section or recognized for the purpose of transferring to the donor registry all relevant information regarding a donor’s making, amendment to, or revocation of an anatomical gift.

(c)  The Division of Natural Resources shall provide all relevant information regarding a donor’s making, amendment to, or revocation of an anatomical gift to a donor registry established or contracted for pursuant to this section.

(d) A donor registry must:

(1) Allow a donor or person authorized under §16-19-4 of this code to include on the donor registry a statement or symbol that the donor has made, amended, or revoked an anatomical gift;

(2) Be accessible to a procurement organization to allow it to obtain relevant information on the donor registry to determine, at or near death of the donor or a prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift; and

(3) Be accessible for purposes of subdivisions (1) and (2) of this subsection 24 hours a day, seven days a week.

(e) Personally identifiable information on a donor registry about a donor or prospective donor may not be used or disclosed without the express consent of the donor, prospective donor, or person that made the anatomical gift for any purpose other than to determine, at or near death of the donor or prospective donor, whether the donor or prospective donor has made, amended, or revoked an anatomical gift.

(f) The Director of the Division of Natural Resources shall provide information regarding the existence of the anatomical organ donation program, the procedures for a hunting or fishing license applicant to indicate his or her desire to make an anatomical gift, and having document of gift affixed to his or her hunting or fishing license pursuant to this article.

(g) The Division of Natural Resources shall be reimbursed for all costs relating to the creation and administration of an anatomical gift record by the Center for Organ Recovery and Education: Provided, That the division is absolved of all responsibilities to collect and provide donor registrant records pursuant to this article if not reimbursed according to this subsection.

(h) This section does not prohibit any person from creating or maintaining a donor registry that is not established by or under contract with the state. Any private donor registry must comply with subsections (d) and  (e) of this section.

§16-19-20. Effect of anatomical gift on advance health-care directive.

(a) In this section:

(1) "Advance health-care directive" means a medical power of attorney or a record signed or authorized by a prospective donor containing the prospective donor's direction concerning a health-care decision for the prospective donor.

(2) "Declaration" means a record signed by a prospective donor specifying the circumstances under which a life support system may be withheld or withdrawn from the prospective donor.

(3) "Health-care decision" means any decision regarding the health care of the prospective donor.

(b) If a prospective donor has a declaration or advance health care directive, the terms of which are in conflict with the express or implied terms of a potential anatomical gift with regard to administration of measures necessary to ensure the medical suitability of a part for transplantation or therapy, the attending physician and the prospective donor shall confer to resolve the conflict.

(1) If the prospective donor is incapable of resolving the conflict, an agent acting under the prospective donor's declaration or directive, or, if none or the agent is not reasonably available, another person authorized by law other than this article to make health-care decisions on behalf of the prospective donor, shall act for the donor to resolve the conflict as quickly as possible.

(2) A procurement organization and any person authorized to make an anatomical gift on behalf of a prospective donor pursuant to section nine of this article shall provide any information relevant to the resolution of the conflict.

(3) Pending resolution of the conflict, measures necessary to ensure the medical suitability of a part may not be withheld or withdrawn from the prospective donor unless doing so is contraindicated by appropriate end-of-life care.

§16-19-21. Cooperation between medical examiner and procurement organization.

(a) A medical examiner shall cooperate with a procurement organization to maximize the opportunity to recover anatomical gifts for the purpose of transplantation, therapy, research or education.

(b) If a medical examiner receives notice from a procurement organization that an anatomical gift was or might have been made with respect to a decedent whose body is in the custody of the medical examiner, the medical examiner shall endeavor to conduct a post-mortem examination in a manner and within a period compatible with its preservation for the purposes of the gift, unless the medical examiner denies recovery in accordance with section twenty-two of this article.

(c) While the decedent's body is in the custody of a medical examiner, a part may not be removed for transplantation, therapy, research or education or the body delivered for research and education unless the part or the body is the subject of an anatomical gift. This subsection does not preclude a medical examiner from performing a medicolegal investigation upon the decedent's body or parts while in his or her custody.

§16-19-22. Facilitation of anatomical gift from decedent whose body is under jurisdiction of medical examiner.

(a) The medical examiner shall, upon request of a procurement organization, release to the procurement organization the name, contact information, and available medical and social history of a decedent whose body is in the custody of the medical examiner. If the decedent’s body or part is medically suitable for transplantation, therapy, research, or education, the medical examiner shall release post-mortem examination results after being paid in accordance with the fee schedule established in rules to the procurement organization. The procurement organization may make a subsequent disclosure of the post-mortem examination results or other information received from the medical examiner only if relevant to transplantation or therapy.

(b) The medical examiner may conduct a medicolegal examination by reviewing all medical records, laboratory test results, x-rays, other diagnostic results, and other information that any person possesses about a donor or prospective donor whose body is under the jurisdiction of the medical examiner which the medical examiner determines may be relevant to the investigation.

(c) A person with any information requested by a medical examiner pursuant to subsection (b) of this section shall provide that information as soon as possible to allow the medical examiner to conduct the medicolegal investigation within a period compatible with the preservation of parts for the purpose of transplantation, therapy, research, or education.

(d) If the medical examiner determines that a post-mortem examination is not required or that a post-mortem examination is required but that the recovery of the part that is the subject of an anatomical gift will not interfere with the examination, the medical examiner and procurement organization shall cooperate in the timely removal of the part from the decedent for the purpose of transplantation, therapy, research or education.

(e) If an anatomical gift of a part from the decedent under the jurisdiction of the medical examiner has been or might be made, but the medical examiner initially believes that the recovery of the part could interfere with the post-mortem investigation into the decedent’s cause or manner of death, the medical examiner shall consult with the procurement organization about the proposed recovery. After the consultation, the medical examiner may deny the recovery at his or her discretion. The medical examiner may attend the removal procedure for the part before making a final determination not to allow the procurement organization to recover the part.

(f) If the medical examiner denies recovery of the part, he or she shall:

(1) Provide the procurement organization with a written explanation of the specific reasons for not allowing recovery of the part; and

(2) Include in the medical examiner’s records the specific reasons for denying recovery of the part.

(g) If the medical examiner allows recovery of a part, the procurement organization shall, upon request, cause the physician or technician who removes the part to provide the medical examiner with a written report describing the condition of the part, a biopsy, a photograph or any other information, and observations that would assist in the post-mortem examination.

(h) A medical examiner who decides to be present at a removal procedure is entitled to reimbursement for the expenses associated with appearing at the recovery procedure from the procurement organization which requested his or her presence.

(i) A medical examiner performing any of the functions specified in this section shall comply with all applicable provisions of §61-12-1 et seq. of this code.

§16-19-23. Relation to Electronic Signatures in Global and National Commerce Act.

This act modifies, limits and supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §7001 et seq., but does not modify, limit or supersede Section 101(a) of that act, 15 U.S.C. Section 7001, or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

§16-20-1.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§16-21-1. Donations by seventeen year old minors without parental permission.

Notwithstanding any other provision of law to the contrary, any person seventeen years of age or older may donate blood without the permission or authorization of a parent or guardian and any person sixteen years of age may donate blood with the permission or authorization of a parent or legal guardian: Provided, That a parent or guardian may not be liable for any medical expense which may occur as a result of a minor donating blood under the provisions of this section: Provided, however, That nothing herein may be construed as permitting a minor of age seventeen or older, or a minor of age sixteen, to give blood for compensation in any form.

§16-22-1. Findings.

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 treatment.

§16-22-2. Program to combat intellectual disability or other severe health hazards; rules; facilities for making tests.

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.

§16-22-3. Tests for diseases specified by the state Public Health Commissioner; reports; assistance to afflicted children; Public Health Commissioner to propose rules.

(a) The hospital or birthing center in which an infant is born, the parents or legal guardians, the physician attending a newborn child, or any person attending a newborn child not under the care of a physician shall require and ensure that each such child be tested for phenylketonuria, galactosemia, hypothyroidism, sickle cell anemia and certain other diseases specified by the Bureau for Public Health. The Bureau for Public Health shall also require testing for congenital adrenal hyperplasia, cystic fibrosis and biotinidase deficiency. No later than July 1, 2008, the Bureau for Public Health shall also require testing for isovaleric acidemia, glutaric acidemia type I, 3-Hydroxy-3-methylglutaric aciduria, multiple carboxylase deficiency, methylmalonic acidemia-mutase deficiency form, 3-methylcrotonyl-CoA carboxylase deficiency, methylmalonic acidemia, Cbl A and Cbl B forms, propionic acidemia, beta-ketothiolase deficiency, medium-chain acyl-CoA dehydrogenase deficiency, very long-chain acyl-CoA dehydrogenase deficiency, long-chain hydroxyacyl-CoA dehydrogenase deficiency, trifunctional protein deficiency, carnitine uptake defeat, maple syrup urine disease, homocystinuria, citrullinemia type I, argininosuccinate acidemia, tyrosinemia type I, hemoglobin S/Beta-thalassemia, sickle C disease and hearing deficiency.

(b) A positive result on any test specified in subsection (a) of this section, or a positive result for any other diseases specified by the Bureau for Public Health, shall be promptly reported to the Bureau for Public Health by the director of the laboratory performing such test.

(c) Newborn screenings shall be considered a covered benefit reimbursed to the birthing facilities by Public Employees Insurance Agency, the state Children's Health Insurance Program, the Medicaid program and all health insurers whose benefit package includes pregnancy coverage and who are licensed under chapter thirty-three of this code.

(d) The Bureau for Public Health shall propose rules for legislative approval in accordance with article three, chapter twenty-nine of this code. These legislative rules shall include:

(1) A means for the Bureau for Public Health, in cooperation with other state agencies, and with attending physicians, to provide medical, dietary and related assistance to children determined to be afflicted with any disease specified in subsection (a) of this section and certain other diseases specified by the Bureau for Public Health; and

(2) A means for payment for the screening provided for in this section; and

(3) Anything further considered necessary by the Bureau for Public Health to implement the provisions of this section.

§16-22-4. Penalties for violating provisions of article.

Any person violating the provisions of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $25 nor more than $50. Violation of each such provision shall be considered a separate offense.

§16-22-5. Severability.

If any provision or item of this article or application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this article.

§16-22-6. Effective date.

The effective date of this article shall be July 1, 1965.

§16-22A-1. Testing required.

The physician or midwife in attendance at, or present immediately after, a live birth shall perform, or cause to be performed, a test for hearing loss in the infant unless the infant's parents refuse under subsection (c), section three of this article to have the testing performed. For any infant delivered at a nonlicensed facility, including home births, the physician or other health care provider shall inform the parents of the need to obtain testing within the first month of life. The director of the division of health shall prescribe the test or tests to be administered in accordance with this article.

§16-22A-2. Rule making authorized.

The director of the division of health shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to: (1) Establish a reasonable fee schedule for tests administered pursuant to this article, which shall be used to cover program costs not otherwise covered by federal grant funds specifically secured for this purpose; (2) establish a cost-effective testing protocol based upon available technology and national standards; (3) establish reporting and referral requirements; and (4) establish a date for implementation of the testing protocol, which shall not be later than July 1, 1999.

§16-22A-3. Fees for testing; payment of same.

(a) Testing required under this article shall be a covered benefit reimbursable by all health insurers except for health insurers that offer only supplemental coverage policies or policies which cover only specified diseases. All policies issued pursuant to articles fifteen, sixteen, twenty-four and twenty-five-a of chapter thirty-three of this code shall provide coverage for the testing required under this article.

(b) The Department of Human Services shall pay for testing required under this article when the newborn infant is eligible for medical assistance under the provisions of §9-5-12 of this code.

(c) In the absence of a third-party payor, the parents of a newborn infant shall be informed of the testing availability and its costs and they may refuse to have the testing performed. Charges for the testing required under this article shall be paid by the hospital or other health care facility where the infant's birth occurred: Provided, That nothing contained in this section may be construed to preclude the hospital or other health care facility from billing the infant's parents directly.

§16-22A-4. Hearing impairment testing advisory committee established.

(a) There is established a West Virginia hearing difficulties testing advisory committee which shall advise the Commissioner of the Bureau of Public Health regarding the protocol, validity, monitoring and cost of testing procedures required under this article. This committee is to meet four times per year for the initial two years and on the call of the director thereafter. The director shall serve as the chair and shall appoint 12 members, one representing each of the following groups:

(1) A representative of the health insurance industry;

(2) An otolaryngologist or otologist;

(3) An audiologist with experience in evaluating infants;

(4) A neonatologist;

(5) A pediatrician;

(6) A hospital administrator;

(7) A speech or language pathologist;

(8) A teacher or administrative representative from the West Virginia school of the deaf;

(9) A parent of a deaf or hard of hearing child;

(10) A representative from the office of early intervention services;

(11) A representative from the state Department of Education; and

(12) A representative from the West Virginia Commission for the Deaf and Hard-of-Hearing.

(b) Members of this advisory committee shall serve without compensation. A majority of members constitutes a quorum for the transaction of all business. Members shall serve for two-year terms and may not serve for more than two consecutive terms.

§16-22B-1. Legislative findings; intent; purpose.

(a) The Legislature hereby finds that until 1984, West Virginia had one of the highest rates of postneonatal mortality in the United States, which is defined as infants dying between one month and one year of age. In the early 1980s, studies in West Virginia showed that infants at greatest risk of dying during the first year after birth had poor attendance at regular physician visits and often received minimal health care. The system for assessing infants at risk for postneonatal mortality, debilitating conditions and developmental delays was erratic and many West Virginia physicians were poorly trained about risk assessment. Uniform guidelines for at-risk infants to enter care did not exist.

(b) In 1985, the birth scoring system, a cooperative effort between the division of health and the West Virginia University department of pediatrics was initiated. The goals of the scoring system were: (1) To identify newborns at greatest risk for death between one month and one year of age; and (2) to link high risk infants with physicians for close follow-up during the first year of life.

(c) Since its inception, the birth scoring system has been expanded to identify and link infants at risk for debilitating conditions and developmental delays with necessary and available services. The program has been greatly successful in identifying at-risk newborns and in obtaining appropriate medical care for those infants.

(d) With the success of the birth scoring system at reducing postneonatal mortality rates in the state, it is the intention of the Legislature to establish the birth score system as a universal, preventive program to be enacted at the delivery of each newborn in the state. The purpose of this article is to ensure that all of the state's birthing hospitals and facilities adopt and implement this prevention program.

§16-22B-2. Birth score program established.

(a) The Bureau of Public Health may establish and implement a birth score program designed to combat postneonatal mortality and to detect debilitating conditions and possible developmental delays in newborn infants in the state.

(b) The purpose and goals of the birth score program are to reduce the incidence of postneonatal mortality and disease by:

(1) Identifying newborns at greatest risk for death between one month and one year of age; and

(2) Linking these infants with physicians for close follow-up during the first year of life.

(c) The birth score of a newborn infant shall be determined pursuant to the program established by the division of health by trained hospital or birthing facility personnel immediately after the infant is delivered.

§16-22B-3. Determination of birth score; referral to physician.

(a) Any hospital or birthing facility in which an infant is born, any physician attending the infant, or any other person attending the infant if not under the care of a physician, shall require and ensure that a birth score is determined for the newborn infant in order to assess the level of risk for postneonatal mortality, debilitating conditions and developmental delays: Provided, That no birth score shall be determined or birth score program implemented if the parent or guardian objects to the birth score program on the grounds that it conflicts with their religious tenets and practices. Any infant delivered at a nonlicensed facility, including, but not limited to, home births, shall have a birth score determined by the child's primary physician within ten days of birth, subject to the exception set forth in this subsection.

(b) When any infant receives a high risk birth score, as determined by the program established by this article, the parents shall be informed of the birth score and its implications, and then linked with a local primary care physician for a recommended six visits in the first six months of the infant's life.

(c) The division of health, in cooperation with other state departments and agencies, may provide necessary medical and other referrals for services related to infants determined to be at high risk for postneonatal mortality and other debilitating conditions and developmental delays.

§16-22B-4. Rules.

On or before June 30, 1998, the division of health shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as may be needed to establish the program, ensure compliance and assess penalties as needed to implement the provisions of this article.

§16-23-1. Procuring, etc., human blood, etc., organs or other human tissue declared not a sale; warranties inapplicable.

The procuring, furnishing, donating, processing, distributing or the using of human whole blood, blood plasma, blood products, blood derivatives, corneas, bones or organs or other human tissue for the purpose of injecting, transfusing or transplanting any of them in the human body, is declared for all purposes to be the rendition of a service by every person, firm or corporation participating therein, whether or not any remuneration is paid therefor, and is declared not to be a sale of any such items and no warranties of any kind or description shall be applicable thereto.

§16-24-1

Repealed

Acts, 2017 Reg. Sess., Ch. 31.

§16-24-2

Repealed

Acts, 2017 Reg. Sess., Ch. 31.

§16-24-3

Repealed

Acts, 2017 Reg. Sess., Ch. 31.

§16-24-4

Repealed

Acts, 2017 Reg. Sess., Ch. 31.

§16-24-5

Repealed

Acts, 2017 Reg. Sess., Ch. 31.

§16-24-6

Repealed

Acts, 2017 Reg. Sess., Ch. 31.

§16-24-7

Repealed

Acts, 2017 Reg. Sess., Ch. 31.

§16-24-8. When payments for care and treatment of hemophiliacs may be made by director.

All resources reasonably available to the hemophiliac such as private insurance, Medicaid payments, aid from other state agency programs and private agency fundings must be used for payment of medical care for the hemophiliac before any funds provided pursuant to the state hemophilia program established by this article are used. Approved participating treatment centers may be reimbursed for services according to rates established by the director for that portion of approved care for the hemophiliac not covered by other insurance or assistance programs. Where such insurance or other assistance funds are available, approved treatment centers shall be required by the director to submit grant requests for such funds. Any center receiving any moneys from the director under the program established by this article must accept and comply with the director's standards hereunder for home care and ongoing patient evaluation.

§16-25-1

Repealed

Acts, 2017 Reg. Sess., Ch. 32.

§16-25-2

Repealed

Acts, 2017 Reg. Sess., Ch. 32.

§16-25-3

Repealed

Acts, 2017 Reg. Sess., Ch. 32.

§16-25-4

Repealed

Acts, 2017 Reg. Sess., Ch. 32.

§16-26-1.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

§16-27-1. Definitions.

As used in this article:

(1) "Byproduct material" means (i) any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or utilizing special nuclear material, and (ii) the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content;

(2) "Dispose" or "disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of a substance into or on any land, water or air;

(3) "Low-level waste" means radioactive waste that:

(A) Is neither high-level waste or transuranic, nor spent nuclear fuel, nor by-product material as defined in section 11 (e)(2) of the Atomic Energy Act of 1954, as amended; and

(B) Is any radioactive material that the United States nuclear regulatory commission classified as low-level radioactive waste on or after January 1, 1989: Provided, That any material classified as low-level radioactive waste on or after January 1, 1989, shall be considered low-level radioactive waste without regard to a nuclear regulatory commission determination that such material is below regulatory concern; and

(C) Is any radioactive material produced after January 1, 1989, which would have been classified as a low-level radioactive waste, utilizing the standards in effect on that date, without regard to a determination by an agency of the United States government that such material is below regulatory concern;

(4) "Radioactive waste material" means any discarded radioactive material in the form of, or resulting from the use of, any byproduct material, source material or special nuclear material and includes low-level waste;

(5) "Source material" means (i) uranium or thorium, or any combination thereof, in any physical or chemical form; or (ii) ores which contain by weight one twentieth of one percent (0.05%) or more of (a) uranium, (b) thorium or (c) any combination thereof. Source material does not include special nuclear material;

(6) "Special nuclear material" means (i) plutonium, uranium 233, uranium enriched in the isotope 233 or in the isotope 235; or (ii) any material artificially enriched by any of the foregoing but does not include source material;

(7) "Store" or "storage" means the containment of a substance, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal or transportation; and

(8) "Transport" or "transportation" means any movement of a substance and any loading, unloading or storage incidental thereto.

The Governor shall have the authority to add, by executive order, to the listing of materials constituting "source material" or "special nuclear material" by including such additional like materials as may be determined by the federal Nuclear Regulatory Commission to constitute "source material" or "special nuclear material."

§16-27-2. Storage or disposal of radioactive waste material within the state prohibited; exceptions.

(a) No person shall store or dispose of any radioactive waste material within the state: Provided, That the provisions of this section do not prohibit (1) the storage or disposal of such material produced within the state as a result of medical, educational, research or industrial activities and so stored or disposed of in compliance with all applicable state and federal laws, or (2) the transportation of such material out of or through the state when done in compliance with all applicable state and federal laws: Provided, however, That such waste from industrial activities does not include, for the purpose of this article, such material produced from the operation of any nuclear power generation facility, nuclear processing facility, or nuclear reprocessing facility.

(b) The disposal of radioactive waste material in a solid waste facility or in a commercial solid waste facility, as defined in section two, article fifteen, chapter twenty-two of this code, is prohibited.

§16-27-3. Authority of director of health.

The director of health shall initiate investigations into any use of radioactive material or disposal of radioactive waste material that might be in violation of the provisions of this article. The director of health shall also be empowered to file complaints for alleged violations of this article and shall assist local law-enforcement officers and prosecuting attorneys in the investigation and prosecution of all violations of this article.

§16-27-4. Penalties.

Any person who violates the provisions of section two of this article is guilty of a felony, and, upon conviction thereof, shall be fined not less than $1,000 nor more than $25,000 for each day of such violation, or imprisoned in the penitentiary not less than one nor more than five years, or both fined and imprisoned. If the conviction is for a violation committed after a first conviction of such person under this subsection, the person shall be guilty of a felony, and, upon conviction thereof, shall be fined not less than $5,000 nor more than $50,000 for each day of such violation, or shall be imprisoned not less than two nor more than ten years, or both fined and imprisoned.

§16-27A-1. Legislative findings and purposes.

[Repealed.]

§16-27A-2. Limited ban on construction of nuclear power plants; application to the Public Service Commission for construction or initiation.

[Repealed.]

§16-28-1

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-28-2

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-28-3

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-28-4

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-28-5

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-28-6

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-28-7

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-28-8

Repealed

Acts, 2017 Reg. Sess., Ch.

§16-28-9

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-28-10

Repealed

Acts, 2017 Reg. Sess., Ch. 33.

§16-29-1. Copies of health care records to be furnished to patients.

(a) Any licensed, certified or registered health care provider so licensed, certified or registered under the laws of this state shall, upon the written request of a patient, his or her personal representative, as defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended, and any rules promulgated pursuant to the act, and his or her authorized agent or authorized representative, within no more than thirty days from the receipt of the request, furnish a copy, in the form of a paper copy or, if requested and if the provider routinely stores records electronically and has the ability to so provide, a copy in an electronic format including, but not limited to, a downloadable format through a secure web portal, a copy saved upon a computer disc, an electronically mailed copy or a copy saved upon a portable memory device of all or a portion of the patient’s record to the patient, his or her personal representative, or authorized agent or authorized representative subject to the following exceptions:

(1) In the case of a patient receiving treatment for psychiatric or psychological problems, a summary of the record shall be made available to the patient, personal representative, or his or her authorized agent or authorized representative following termination of the treatment program.

(2) The furnishing of a copy, as requested, of the reports of x-ray examinations, electrocardiograms and other diagnostic procedures shall be deemed to comply with the provisions of this article.

(b) Nothing in this article shall be construed to require a health care provider responsible for diagnosis, treatment or administering health care services in the case of minors for birth control, prenatal care, drug rehabilitation or related services or venereal disease according to any provision of this code, to release patient records of such diagnosis, treatment or provision of health care as aforesaid to a parent or guardian, without prior written consent therefor from the patient, nor shall anything in this article be construed to apply to persons regulated under the provisions of chapter eighteen of this code or the rules and regulations established thereunder.

(c) This article does not apply to records subpoenaed or otherwise requested through court process, except for the fee provisions in section two of this article, which do apply to subpoenaed records.

(d) The provisions of this article may be enforced by a patient, personal representative, authorized agent or authorized representative and any health care provider found to be in violation of this article shall pay any attorney fees and costs, including court costs incurred in the course of such enforcement.

(e) Nothing in this article shall be construed to apply to health care records maintained by health care providers governed by the AIDS-related Medical Testing and Records Confidentiality Act under the provisions of article three-c of this chapter.

§16-29-2. Reasonable expenses to be reimbursed.

(a) A provider may charge a patient or the patient’s personal representative no more than a fee consistent with HIPAA, as amended, and any rules promulgated pursuant to HIPAA, plus any applicable taxes.

 (b) (1) A person other than a patient or patient’s personal representative requesting records from a health care provider shall submit the request and HIPAA compliant authorization in writing and pay a fee at the time of delivery. Notwithstanding any other section of the code or rule, the fees shall not exceed: (A) A search and handling fee of $20; (B) a per page fee of 40 cents for paper copies; and (C) postage, if the person requested that the records be mailed, plus any applicable taxes.

(2) If the requested record is stored by the health care provider in an electronic form, unless the person requesting the record specifically requests a paper copy, the records will be delivered in electronic or digital form and the per page fee for providing an electronic copy shall not exceed 20 cents per page but shall in no event exceed $150 inclusive of all fees, including a search and handling fee, except for applicable taxes.

(c) Any person requesting a record be certified by affidavit pursuant to section four-e, article five, chapter fifty-seven of this code shall pay a fee of $10 for such certification.

(d) If a person requests or agrees to an explanation or summary of the records, the provider may charge a reasonable cost-based fee for the labor cost if preparing the explanation or the summary; for the supplies for creating the explanation or summary; and for the cost of postage, if the person requested that the records be mailed, plus any applicable taxes. If the records are stored with a third party or a third party responds to the request for records in paper or electronic media, the provider may charge additionally for the actual charges incurred from the third party.

(e) The per page fee for copying under subsection (b) shall be adjusted to reflect the consumer price index for medical care services such that the base amount shall be increased or decreased by the proportional consumer price index as published every October 1 starting October 1, 2017.

(f) Notwithstanding the provisions of subsection (a) of this section, a provider shall not impose a charge on an indigent person or his or her authorized representative if the medical records are necessary for the purpose of supporting a claim or appeal under any provisions of the Social Security Act, 42 U. S. C. §301, et seq.

For purposes of this section, a person is considered indigent if he or she:

(1) Is represented by an organization or affiliated pro bono program that provides legal assistance to indigents; or

(2) Verifies on a medical records request and release form that the records are requested for purposes of supporting a Social Security claim or appeal and submits with the release form reasonable proof that the person is financially unable to pay full copying charges by reason of unemployment, disability, income below the federal poverty level or receipt of state or federal income assistance.

(g) Any person requesting free copies of written medical records pursuant to the provisions of subsection (f) of this section is limited to one set of copies per provider. Any additional requests for the same records from the same provider shall be subject to the fee provisions of subsections (a) and (b).

§16-29A-1. Short title.

This article shall be known and may be cited as the "West Virginia Hospital Finance Authority Act."

§16-29A-2. Declaration of policy and responsibility; purpose and intent of article; findings.

It is hereby declared to be the public policy of the State of West Virginia and a responsibility of the State of West Virginia, for the benefit of the people of the state and the improvement of their health, welfare and living conditions, to provide hospitals with appropriate means at reasonable cost to maintain, expand, enlarge and establish health care, hospital and other related facilities and to provide hospitals with the ability to refinance indebtedness. This article shall provide a method to enable hospitals to provide or maintain at reasonable cost pursuant to reasonable terms the facilities, structures and services needed to accomplish the purposes of this article, all to the public benefit and good, to the extent and in the manner provided in this article.

The Legislature finds and hereby declares that the responsibility of the state as outlined above cannot be effectively met without the hospital loan program as provided for in this article.

§16-29A-3. Definitions.

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 this article;

(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 or equipment;

(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 article;

(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 conclusive;

(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.

§16-29A-4. Creation of authority and board; status and members of board.

The West Virginia hospital finance authority is continued. The authority is a body corporate and a governmental instrumentality of the state. The exercise by the authority of the powers conferred by this article and the carrying out of its purposes and duties shall be deemed and held to be, and are determined to be, essential governmental functions and for a public purpose.

The authority shall be controlled, managed and operated by the seven-member board known as the West Virginia Hospital Finance Board, which is continued. The board shall consist of the secretary and the State Treasurer as members ex officio of the board. The other five members of the board shall be appointed by the Governor, by and with the advice and consent of the Senate, and shall serve terms of two, three, four, five and six years, respectively. The successor of each such appointed member shall be appointed for a term of six years in the same manner as the original appointments were made, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed only for the remainder of such term. No more than three of the appointed board members shall at any one time belong to the same political party. Appointed board members may be reappointed to serve additional terms.

All members of the board shall be citizens of the state. Each appointed member of the board, before entering upon his or her duties, shall comply with the requirements of article one, chapter six of this code and give bond in the sum of $25,000 in the manner provided in article two, chapter six of this code. The Governor may remove any board member for cause as provided in article six, chapter six of this code. The secretary and the State Treasurer may each appoint a deputy to serve as a member of the board in their respective absences. Such deputy shall serve at his or her pleasure.

Four members of the board shall constitute a quorum, and the affirmative vote of four members shall be necessary for any action taken by vote of the board. No vacancy in the membership of the board shall impair the rights of a quorum by such vote to exercise all the rights and perform all the duties of the board and the authority.

Annually, the board shall elect one of its appointed members as chairman and another as vice chairman and shall appoint a secretary-treasurer, who need not be a member of the board. The person appointed as secretary-treasurer, including a board member if he or she is so appointed, shall give bond in the sum of $50,000 in the manner provided in §6-2-1 et seq., of this code.

Members of the board shall not receive compensation for services but shall be entitled to the necessary expenses, including traveling expenses, incurred in the discharge of their duties. Any payments for compensation and expenses shall be paid from the funds of the authority, after appropriations and authorization by the Legislature, and no liability or obligation shall be incurred by the authority beyond the extent to which moneys are available from funds of the authority.

There shall also be a director of the authority appointed by the board.

§16-29A-5. Powers of authority.

The authority is hereby granted, has and may exercise all the powers necessary or appropriate to carry out and effectuate the purposes of this article, including the following:

(a) To sue and be sued in its own name and plead and be impleaded in its own name; to have a seal and alter the same at its pleasure; to make, execute and deliver contracts, indentures, agreements, conveyances and other instruments necessary or convenient to the exercise of its powers; to adopt and, from time to time, amend and repeal bylaws necessary and proper for the legislation of its business and rules and regulations to implement and make effective its powers and duties, such rules and regulations to be promulgated in accordance with the provisions of chapter twenty-nine-a of this code; and to maintain a principal office. Any actions against the authority shall be brought in the circuit court of Kanawha County, in which the principal office of the authority shall be located. When the cost under any contract or agreement to be entered by the authority, other than compensation for personal services, involves an expenditure of more than $3,000, the authority shall make a written contract with the lowest responsible bidder after public notice published as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, the publication area for such publication to be the county wherein the work is to be performed or which is affected by the contract, which notice shall state the general character of the work and the general character of the materials to be furnished, the place where plans and specifications therefor may be examined and the time and place of receiving bids: Provided, That a contract, indenture or agreement for a hospital loan is not subject to the foregoing requirements, and the authority may enter into such contract, indenture or agreement pursuant to negotiation and upon such terms and conditions and for such period as it finds to be reasonable and proper under the circumstances and as necessary to best effectuate the purposes of this article: Provided, however, That a contract or agreement entered into by a hospital to which any hospital loan is made is not subject to the foregoing requirements. The authority may reject any and all bids. A bond with good and sufficient surety, approved by the authority, shall be required of all contractors in an amount equal to at least fifty percent of the contract price, conditioned upon the faithful performance of the contract.

(b) To solicit and accept gifts, grants, loans and other aids from any person, corporation or governmental agency.

(c) To make hospital loans, to participate in the making of hospital loans, to undertake commitments, to execute and be the beneficiary under deeds of trust, to enter into security agreements, to sell hospital loans and the security therefor at public or private sale, to modify or alter hospital loans and security therefor, to discharge hospital loans and security therefor, to order a trustee's sale under a deed of trust or commence an action to protect or enforce a right conferred upon it by a law, deed of trust, hospital loan, contract, indenture or other agreement and to bid for and purchase property which was the subject of a deed of trust at a trustee's sale or at any other sale and to acquire or take possession of that property and in that event complete, administer, pay the principal of and interest on any obligations incurred in connection with such property, dispose of and otherwise deal with the property in a manner necessary or desirable to protect the interest of the authority in the property. The hospital loans made by the authority may be secured by deeds of trust or security agreements, as applicable, or not, as the authority determines.

(d) To lend money to hospitals for the purpose of refinancing any outstanding indebtedness of a hospital if the authority determines the refinancing is necessary to realize the purposes of this article. A hospital loan made pursuant to this subsection shall not exceed the amount of the principal of and interest and redemption premium, if any, on the indebtedness to be refinanced which has not been repaid, plus the marketing, financing, legal and other costs incurred in connection with the refinancing and the issuance of bonds or notes of the authority issued in whole or in part to provide funds to make the hospital loan described in this subdivision, including the costs of funding a bond reserve and paying capitalized interest on the bonds or notes for a period not to exceed one year after the issuance of such bonds or notes. The determination of the authority under this subsection shall be conclusive.

(e) To charge, impose and collect fees and charges in connection with its hospital loans, commitments and servicing, including reimbursement of the costs of financing by the authority, service charges, insurance premiums and an allocable share of the operating expenses of the authority and to make provision for increasing the same, if necessary, as the authority determines is reasonable and approved by the board.

(f) To acquire, hold and dispose of real or personal property necessary or appropriate for the accomplishment of the purposes of this article.

(g) To procure insurance against a loss in connection with its property, assets or activities.

(h) To borrow money for its purpose, including its initial operating expense and issue its bonds or notes for the money and provide for the rights of the holders of the bonds or notes and to secure the bonds or notes by a deed of trust on or an assignment or pledge of any or all of its properties, including any part of the security for its hospital loans. The state shall not be liable on any bonds or notes of the authority; the bonds or notes shall not be a debt of the state; and each bond or note shall contain on its face a statement to that effect.

(i) To invest any funds not required for immediate use or disbursement, at its discretion, in any of the following:

(1) Direct obligations of, or obligations the timely payment of the principal of and interest on which is guaranteed by, the United States of America;

(2) Bonds, debentures, notes or other evidences of indebtedness issued by any of the following agencies: Banks for cooperatives; federal intermediate credit banks; federal home loan bank system; Export-Import Bank of the United States; federal farm credit banks; federal land banks; federal financing banks; the Federal National Mortgage Association or the Government National Mortgage Association;

(3) Public housing bonds issued by public agencies or municipalities and fully secured as to the payment of both principal and interest by a pledge of annual contributions under an annual contributions contract or contracts with the United States of America; or temporary notes issued by public agencies or municipalities or preliminary loan notes issued by public agencies or municipalities, in each case fully secured as to the payment of both principal and interest by a requisition or payment agreement with the United States of America;