WEST virginia legislature

2016 regular session

Enrolled

Committee Substitute

for

Senate Bill 195

By Senator Maynard, original sponsor

[Passed March 10, 2016; in effect from passage]

 

AN ACT to amend and reenact article 5, chapter 64 of the Code of West Virginia, 1931, as amended, all relating generally to the promulgation of administrative rules by the Department of Health and Human Resources, the Human Rights Commission and the Health Care Authority; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee;  authorizing certain of the agencies to promulgate certain legislative rules with various amendments recommended by the Legislature; authorizing certain agencies and commissions under the Department of Health and Human Resources to repeal certain legislative, procedural or interpretive rules that are no longer authorized or are obsolete; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to the preliminary requirement for approval by the West Virginia Department of Health of a laboratory for a specified technique; repealing the Department of Health and Human Resources legislative rule relating to ice cream and frozen milk; repealing the Department of Health and Human Resources legislative rule relating to establishment of a Controlled Substances Therapeutic Research Program and the certification of patients, practitioners and hospital pharmacies; repealing the Department of Health and Human Resources legislative rule relating to the installation of medication in the eyes of newborns and disseminating advice and information concerning the dangers of inflammation of the eyes of the newborn; repealing  the Department of Health and Human Resources legislative rule relating to health facilities plan for the fiscal years 1985-1989; repealing the Department of Health and Human Resources legislative rule relating to design, information and procedural manual for mobile home parks; authorizing the Department of Health and Human Resources to promulgate a legislative rule regarding  West Virginia clearance for emergency medical services; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to fees for services; repealing the Department of Health and Human Resources legislative rule relating to pertussis guidelines; repealing the Department of Health and Human Resources legislative rule relating to hazardous materials treatment information repository; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to infectious medical waste; repealing the Department of Health and Human Resources legislative rule relating to immunization criteria for transfer students; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to AIDS-related medical testing and confidentiality; repealing the Department of Health and Human Resources legislative rule specialized health procedures in public schools; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to tuberculosis testing, control, treatment and commitment; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to farmers market vendors; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to the certification of opioid overdose prevention and treatment training programs; repealing the Department of Health and Human Resources legislative rule relating to procedural rules for the advisory Committee for the Omnibus Health Care Act; authorizing the Department of Health and Human Resources to promulgate a legislative rule regarding chronic pain management licensure; authorizing the Department of Health and Human Resources to promulgate a legislative rule regarding neonatal abstinence centers; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to West Virginia clearance for access; registry and employment screening; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to child care licensing requirement; repealing the Department of Health and Human Resources legislative rule relating to incorporation of the handicapped children services manual; repealing the Department of Health and Human Resources legislative rule relating to termination of income withholding; repealing the Department of Health and Human Resources obtaining support from federal and state income tax refunds; repealing the Department of Health and Human Resources legislative rule relating to interstate income withholding; repealing the Department of Health and Human Resources legislative rule relating to providing information to credit reporting agencies; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to the family child care facility licensing requirements; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to the family child care home registration requirements; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to West Virginia Works program sanctions; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to qualifications for a restricted provisional license to practice as a social worker within the department; authorizing the Department of Health and Human Resources to promulgate a legislative rule relating to goals for foster children; repealing the Health Care Authority’s legislative rule relating to freeze on hospital rates and granting temporary rate increases; repealing the Health Care Authority’s legislative rule relating to the Utilization Review and Quality Assurance Program; repealing the Health Care Authority’s legislative rule relating to limitation on hospital gross patient revenue; repealing the Health Care Authority’s legislative rule relating to exemption for rural primary care hospitals; and authorizing the Human Rights Commission to promulgate a legislative rule relating to the Pregnant Workers’ Fairness Act.

Be it enacted by the Legislature of West Virginia:

That article 5, chapter 64 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

 ARTICLE 5. Authorization for department of health and human resources to promulgate legislative rules.

§64-5-1. Department of Health and Human Resources.

(a) The legislative rule effective on December 29, 1967, authorized under the authority of section seven, article one, chapter sixteen of this code, relating to the Department of Health and Human Resources (preliminary requirement for approval by the West Virginia Department of Health of a laboratory for a specified technique, 64 CSR 26), is repealed.

 (b) The legislative rule effective on December 29, 1967, authorized under the authority of section seven, article one, chapter sixteen of this code, relating to the Department of Health and Human Resources (ice cream and frozen milk, 64 CSR 28), is repealed.

 (c) The legislative rule effective on May 16, 1983, authorized under the authority of section seven, article five-a, chapter sixteen of this code, relating to the Department of Health and Human Resources (establishment of a Controlled Substances Therapeutic Research Program and the certification of patients, practitioners and hospital pharmacies, 64 CSR 33), is repealed.

(d) The legislative rule effective on May 30, 1983, authorized under the authority of section twelve, article three, chapter sixteen of this code, relating to the Department of Health and Human Resources (instillation of medication in the eyes of the newborn and the dissemination of advice and information concerning the dangers of inflammation of the eyes of the newborn, 64 CSR 35), is repealed.

 (e) The interpretive rule effective on April 6, 1984, authorized under the authority of section fifteen-a, article one, chapter sixteen of this code, relating to the Department of Health and Human Resources (health facilities plan for the fiscal years 1985-89, 64 CSR 37), is repealed.

(f) The interpretive rule effective on October 1, 1971, authorized under the authority of section seven, article one, chapter sixteen of this code, relating to the Department of Health and Human Resources (design, information and procedural manual for mobile home parks, 64 CSR 41), is repealed.

(g)  The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 8, 2015, relating to the Department of Health and Human Resources (emergency medical services, 64 CSR 48), is authorized with the following amendments:

On page thirty-one, paragraph 6.5.d.2,  by striking out the phrase “one (1) year” and inserting in lieu thereof, the phrase “one hundred twenty (120) days”;

On page thirty-one, paragraph 6.5.d.3,  by striking out the phrase “one (1) year” and inserting in lieu thereof, the phrase “one hundred twenty (120) days”;

On page thirty-one, paragraph 6.6., by striking out the phrase “two (2)” and inserting “four (4)”

On page thirty-five, paragraph 6.14b, after the word “establish” by removing the words “by a procedural rule” and inserting the word “a”;

And,

On page fifty-seven, by inserting a new section twelve to read as follows:

“§64-48-12.  Community Paramedicine Demonstration Projects.

12.1 Establishment of community paramedicine demonstration projects. The Director may establish up to 6 demonstration projects for the purpose of developing and evaluating a community paramedicine program. A demonstration project established pursuant to this section may not exceed 2 years in duration.

12.2 As used in this section, “community paramedicine” means the practice by an emergency medical services provider primarily in an out-of-hospital setting of providing episodic patient evaluation, advice, and care directed at preventing or improving a particular medical condition which may require emergency medical services providers to  function outside their customary emergency response and transport roles, as specifically requested or directed by a physician, in ways that facilitate more appropriate use of emergency care resources and enhance access to primary care for medically vulnerable populations.

12.3 The Director shall establish the requirements and application and approval process of demonstration projects established pursuant to this section. At a minimum, an emergency medical services provider that conducts a demonstration project shall:

12.3.a. Demonstrate the financial sustainability of its project through reliable funding sources;

12.3.b. Work with an identified primary care medical director and have an emergency medical services medical director;

12.3.c. Submit protocols for approval by the MPCC and the Commissioner;  and

12.3.d. Collect and submit data and written reports to the Director, in accordance with requirements established by the Director.”

12.4. At the end of two years any demonstration project authorized by the Director will terminate and the Director shall submit a written report to the Commissioner, including specific data on utilization of the program, the improvement in quality of care and care coordination in the community, and the reduction of health care costs with respect to ambulance transportation, hospital emergency department visits, and hospital readmissions.  Upon receipt of the annual report, OEMS and the Commissioner shall evaluate the demonstration project and determine how to further develop community paramedicine and whether to expand its scope.”

(h) The legislative rule filed in the State Register on July 27, 2015, authorized under the authority of section four, article one, chapter sixteen of this code, relating to the Department of Health and Human Resources (fees for service, 64 CSR 51), is authorized with the following amendments:

To Appendix A of 64 CSR 51 at Section1. (Fees for Environmental Chemistry Laboratory Services), B. Organic Compounds, by including a new paragraph 8 to read as follows:

 

Harmful Algae Bloom (HAB)

a.     Screening analyses for each individual toxin:

Analyses may include, but are not limited to, Microcystin, Cylindrospermopsin, Anatoxin-a, Saxitoxin and B-Methylamino-L-alanine.  $65

b.     Confirmation of each individual toxin:

Analyses may include, but are not limited to, Microcystin, Cylindrospermopsin, Anatoxin-a, Saxitoxin and B-Methylamino-L-alanine.  $65  

 

 (i) The interpretive rule effective on August 1, 1987, authorized under the authority of article three-b, chapter sixteen of this code, relating to the Department of Health and Human Resources (pertussis guidelines, 64 CSR 52), is repealed.

 (j) The legislative rule effective on June 1, 1987, authorized under the authority of section two, article three-a, chapter sixteen of this code, relating to the Department of Health and Human Resources (hazardous materials treatment information repository, 64 CSR 53), is repealed.

(k) The legislative rule filed in the State Register on July 27, 2015, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 23, 2015, relating to the Department of Health and Human Resources (infectious medical waste, 64 CSR 56), is authorized.

 (l) The legislative rule effective on April 18, 1988, authorized under the authority of section four, article three, chapter sixteen of this code, relating to the Department of Health and Human Resources (immunization criteria for transfer students, 64 CSR 58), is repealed.

(m) The legislative rule filed in the State Register on July 27, 2015, authorized under the authority of section four, article one, chapter sixteen of this code, relating to the Department of Health and Human Resources (AIDS-related medical testing and confidentiality, 64 CSR 64), is authorized.

 (n) The legislative rule effective on April 22, 1992, authorized under the authority of section twenty-two, article five, chapter eighteen of this code, relating to the Department of Health and Human Resources (specialized health procedures in public schools, 64 CSR 66), is repealed.

(o) The legislative rule filed in the State Register on July 27, 2015, authorized under the authority of section two, article three-d, chapter sixteen of this code, relating to the Department of Health and Human Resources (tuberculosis testing, control, treatment and commitment, 64 CSR 76), is authorized.

 (p) The legislative rule filed in the State Register on July 27, 2015, authorized under the authority of section four, article thirty-five, chapter nineteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 23, 2015, relating to the Department of Health and Human Resources (farmers market vendors, 64 CSR 102), is authorized with the following amendments:

On page 5, section 4, subsection 9, subdivision b, by striking out the words “30^th day of June” and inserting in lieu thereof the words “31^st day of December”.

 (q) The legislative rule filed in the State Register on July 27, 2015, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on September 23, 2015, relating to the Department of Health and Human Resources (the certification of opioid overdose prevention and treatment training programs, 64 CSR 104), is authorized.

(r) The procedural rule effective on December 28, 1989, authorized under the authority of section three, article nine-a, chapter six of this code, relating to the Department of Health and Human Resources (procedural rules for the advisory Committee for the Omnibus Health Care Act, 69 CSR 4), is repealed.

(s)  The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 8, 2015, relating to the Department of Health and Human Resources (chronic pain management licensure, 69 CSR 8), is authorized with the following amendments:

 “On page 3, after subsection 2.24, by inserting new language as follows:

‘2.25. Terminal Condition – an illness or disease that cannot be cured and the medical prognosis is that the individual’s life expectancy is six months or less if the illness runs its normal course.’

And, renumbering the remaining subsections.

And,

On page 3, subdivision 3.1.b, by striking the word ‘prescribers’ and inserting ‘clinic’ and inserting after the word ‘conditions’ the phrase ‘that are not terminal’. On page three, subdivision 3.1.b, by reinserting the stricken language ‘in any one month’;

And,

On page 3, subdivision 3.1.c, after the word, ‘office’ by reinserting the stricken language ‘in any one month’ and after the word, ‘office’ by reinserting the stricken language ‘in any one month’;

And,

On page 4, subdivision 3.1.c, by inserting after the word ‘pain’ the phrase ‘for conditions that are not terminal’;

And,

On page 4, subdivision 3.1.d, by inserting after the period the following language:

‘Clinics below the fifty percent patient calculation threshold will be subject to continued monitoring by the Office of Health Facility Licensure and Certification for changes in the patient ratio.  Failure to cooperate with requests for information to verify patient calculations may subject the clinic to penalties and equitable relief pursuant to Section 18 of this rule.’;

And,

On page 4, after subdivision 3.1.d, inserting new language as follows:

‘3.1.e.  A pain clinic shall not offer a bounty, monetary or equipment or merchandise reward, or free services for individuals in exchange for recruitment of new patients into the clinic.  A pain clinic shall not recruit new patients for the purpose of attempting to circumvent the licensure requirements of this rule.’;

And,

On page 5, by striking subparagraph 3.2.i.2. in its entirety;

And,

On page 5, subdivision 4.1.d., by inserting the word ‘designated’ before the term ‘physician owner’;

And,

On page 9, subsection 5.4, by inserting after the period the following:

‘If access is denied, a judge of any court of record in this state having criminal jurisdiction, and upon proper oath or affirmation showing probable cause, may issue administrative warrants for the purpose of conducting inspections and seizures of property appropriate to the inspections.’;

And,

On page 16, subparagraph 10.2.c.6, after the word, every by removing, ‘90’ and inserting ‘60’;

And,

On page 20, by inserting new subdivision 11.7.n to read as follows: ‘11.7.n A record of all cash transactions.’;

And,

On page 26, section 19, by inserting before the word suspended the word ‘denied,’.”

 (t) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 8, 2015, relating to the Department of Health and Human Resources (neonatal abstinence centers, 69 CSR 9), is authorized with the following amendments: 

On page 14, paragraph 5.5.a.1, after the word, ‘field’ by inserting the words, ‘at the discretion of the governing body’; and On page 14, paragraph 5.5.a.2, after the word, ‘field’ by inserting the words, ‘at the discretion of the governing body’;

And,

On page 21, subdivision 6.8.a, by striking it in its entirety and inserting in lieu thereof, ‘6.8.a The center shall be located within fifteen minutes of a hospital.’;

And,

On page 22, subdivision 6.9.b, by striking ‘sources such as railroads, freight yards, traffic arteries and airports’;

And,

On page 30, subdivision 7.9.f by striking the word, ‘Mothers’ and inserting the word, ‘Parents’;

And,

On page 36 subdivision 9.5.a by striking the word, ‘shall’ and inserting the word, ‘may’;

And,

On page 37, subdivision 9.8.a, after the word, ‘all’ by inserting, ‘patient care’; On page 37, subdivision 9.8.b, after the word, ‘all’ by inserting, ‘patient care’; On page 37, subdivision 9.8.c, after the word, ‘all’ by inserting, ‘patient care’; and On page 38, subdivision 9.8.d, after the word, ‘new’ by inserting, ‘patient care’

And,

On page 52, subsection 14.1 by striking the word, ‘Mothers’ and inserting the word, ‘Parents’; On page 53, subdivision 14.2.a. by striking the word, ‘Mothers’ and inserting the word, ‘Parents’; and On page 53, subdivision 14.2.b. by striking the word, ‘Mothers’ and inserting the word, ‘Parents’.”

(u) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section nine, article forty-nine, chapter sixteen of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 23, 2015, relating to the Department of Health and Human Resources (West Virginia clearance for access; registry and employment screening, 69 CSR 10), is authorized , with the following amendments:

On page two, subsection 2.5, by deleting the period at the end of the subsection, and by inserting a comma and new language as follows:  “and any provider authorized by the Secretary.”

And,

On page three, subdivisions 2.11.i. and 2.11.j. by renumbering them 2.10.i and 2.10.j. and by inserting the word “Felony” before the word “crimes”;

And,

On page four, after subsection 5.2, insert new language as follows:

“5.3 If the Secretary’s review of an applicant’s criminal history record information reveals a pending charge that has not received a final disposition, the following shall apply:

5.3.a.  If the pending charge is a disqualifying misdemeanor offense, and the applicant has not had a conviction for a disqualifying offense in the last seven years, the Secretary shall provide written notice to the covered provider or covered contractor advising that the applicant is eligible for work. 

5.3.b. If the pending charge is a disqualifying felony offense, the Secretary shall provide written notice to the covered provider or covered contractor advising that the applicant is ineligible for work, unless a variance has been requested or granted. 

5.3.c. Once a final disposition has been made on the pending charge, the Secretary shall review the criminal history record information de novo in accordance§ with the provisions of this rule and W.Va. Code §16-49-1 et seq.” 

And renumber the remaining subsections. 

(v) The legislative rule filed in the State on July 31, 2015, authorized under the authority of section one hundred twenty-one, article two, chapter forty-nine of this code, relating to the Department of Health and Human Resources (child care licensing requirements, 78 CSR 1), is authorized.

 (w) The legislative rule effective on November 1, 1985, authorized under the authority of article four, chapter forty-nine of this code, relating to the Department of Health and Human Resources (incorporation of the handicapped children services manual, 78 CSR 9), is repealed.

(x) The legislative rule effective on June 15, 1989, authorized under the authority of section three, article five, chapter forty-eight-a of this code, relating to the Department of Health and Human Resources (termination of income withholding, 78 CSR 11), is repealed.

 (y) The legislative rule effective on June 15, 1989, authorized under the authority of section fifteen, article two, chapter forty-eight-a of this code, relating to the Department of Health and Human Resources (obtaining support from federal and state income tax refunds, 78 CSR 12), is repealed.

(z) The legislative rule effective on June 15, 1989, authorized under the authority of section eleven, article two, chapter forty-eight-a of this code, relating to the Department of Health and Human Resources (interstate income withholding, 78 CSR 13), is repealed.

(aa) The legislative rule effective on June 15, 1989, authorized under the authority of section nineteen, article two, chapter forty-eight-a of this code, relating to the Department of Health and Human Resources (providing information to credit reporting agencies, 78 CSR 14), is repealed.

(bb) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section one hundred twenty-one, article two, chapter forty-nine of this code, relating to the Department of Health and Human Resources (family child care facility licensing requirements, 78 CSR 18), is authorized.

(cc) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section one hundred twenty-one, article two, chapter forty-nine of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-making Review Committee and refiled in the State Register on October 28, 2015, relating to the Department of Health and Human Resources (family child care home registration requirements, 78 CSR 19), is authorized.  

(dd) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section eleven, article nine, chapter nine of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-making Review Committee and refiled in the State Register on November 13, 2015, relating to the Department of Health and Human Resources (W.Va. Works Program sanctions, 78 CSR 23), is authorized with the following amendments:

            On page 3, by striking section 4 in its entirety and inserting in lieu thereof a new section four to read as follows:

            “The sanctions are applied in the form of termination of benefits for a specific length of time.  The length of termination of benefits is determined as follows:

            First sanction – entire assistance group ineligible for one month;

            Second sanction – entire assistance group ineligible for six months;

            Third sanction – entire assistance group ineligible for one year; but may reapply within one year.”

(ee) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section sixteen, article thirty, chapter thirty of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 8, 2015, relating to the Department of Health and Human Resources (qualifications for a restricted provisional license to practice as a social worker within the department, 78 CSR 24), is authorized.

(ff) The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section one hundred twenty-six, article two, chapter forty-nine of this code, modified by the Department of Health and Human Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 22, 2015, relating to the Department of Health and Human Resources (goals for foster children, 78 CSR 25), is authorized.

§64-5-2. Health Care Authority.

(a) The legislative rule effective on May 5, 1984, authorized under the authority of section one, article twenty-nine-b, chapter sixteen of this code, relating to the Health Care Authority (freeze on hospital rates and granting of temporary rate increases, 65 CSR 2), is repealed.

(b) The legislative rule effective on May 20, 1985, authorized under the authority of section eight, article twenty-nine-b, chapter sixteen of this code, relating to the Health Care Authority (Utilization Review and Quality Assurance Program – Phase 1, 65 CSR 4), is repealed.

(c) The legislative rule effective on April 10, 1984, authorized under the authority of section one, article twenty-nine-b, chapter sixteen of this code, relating to the Health Care Authority (limitation on hospital gross patient revenue, 65 CSR 8), is repealed.

(d) The legislative rule effective on June 24, 1993, authorized under the authority of section four, article two-d, chapter sixteen of this code, relating to the Health Care Authority (exemption for rural primary care hospitals, 65 CSR 25), is repealed.

 

§64-5-3. Human Rights Commission.

The legislative rule filed in the State Register on July 31, 2015, authorized under the authority of section four, article eleven-b, chapter five of this code, modified by the Human Rights Commission to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 8, 2015, relating to the Human Rights Commission (Pregnant Workers’ Fairness Act, 77 CSR 10), is authorized with the amendments set forth below:

On pages 1 through 3, sections 1 through 5, by striking out all of sections 1 through 5 and inserting in lieu thereof the following:

§77-10-1. General.

1.1.        Scope. The following legislative rule series, filed pursuant to the West Virginia Pregnant Workers’ Fairness Act (PWFA), W. Va. Code §5-11B-1 et seq., sets forth definitions and identifies some reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions. 

1.2.        Authority. – W. Va. Code §5-11B-4.

1.3.        Filing date. – July 31, 2015.

1.4.        Effective Date. –

§77-10-2. Definitions.

2.1. “Affected by pregnancy” means a woman who is pregnant or is experiencing medical conditions related to her pregnancy which has ended.

2.2. “Undue hardship” – In general, the term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subdivision 2.2.1.

2.2.1.   Factors to be considered. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include:

2.2.1.a.  The nature and cost of the accommodation needed under this article;

2.2.1.b.  The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;

2.2.1.c.  The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and

2.2.1.d.  The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

2.3. “Reasonable accommodation” – The term “reasonable accommodation” may include:

2.3.1.   Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

2.3.2.   Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

2.4. “Related medical conditions” means physical and mental symptoms or limitations relating to or caused by a pregnancy, including but not limited to, miscarriage, complications of pregnancy or childbirth, gestational diabetes, pregnancy-induced hypertension, after-effects of delivery, post-partum depression, and lactation: Provided, That an elective abortion shall not be considered a related medical condition.

2.5. “Covered Entity” means the state, or any political subdivision thereof, and any person employing twelve or more persons within the state for twenty or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year: Provided, That such terms shall not be taken, understood or construed to include a private club.

2.6. “Person” means one or more individuals, partnerships, associations, organizations, corporations, labor organizations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups of persons.

§77-10-3. Examples of Reasonable Accommodations.

3.1. Reasonable accommodations that may be made by a covered entity include, but are not limited to:

3.1.1. Bathroom breaks;

3.1.2. Breaks for increased water intake;

3.1.3. Periodic rest;

3.1.4. Assistance with manual labor;

3.1.5. Providing time off for prenatal medical appointments;

3.1.6. Modified work policies or procedures;

3.1.7. Temporary transfers to less strenuous or less hazardous work;

3.1.8. Allowing for more time or more frequent eating;

3.1.9. Allowing time for taking prescribed medications; and

3.1.10. Providing access to existing facilities that are more convenient and usable by a woman affected by pregnancy.