H. B. 2814
(By Delegates Boggs, Beane, Douglas,
Stemple and Compton)
[Introduced March 9, 2001; referred to the
Committee on Government Organization.]
A BILL to repeal article eight, chapter nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended; to
amend and reenact section two, article one of said chapter; to
amend and reenact section eight, article two of said chapter;
and to amend chapter nineteen of said code by adding thereto
a new article, designated article thirty, all relating to
transferring administration of the donated foods program from
the department of health and human resources to the department
of agriculture.
Be it enacted by the Legislature of West Virginia:
That article eight, chapter nine of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, be repealed; that
section two, article one of said chapter be amended and reenacted; that section eight, article two, of said chapter be amended and
reenacted; and that chapter nineteen of said code be amended by
adding thereto a new article, designated article thirty, all to
read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 1. LEGISLATIVE PURPOSE AND DEFINITIONS.
§9-1-2. Definitions.
The following words and terms when used in this chapter have
the meanings indicated unless the context clearly indicates a
different meaning, and any amendment of this section applies to any
verdict, settlement, compromise or judgment entered after the
effective date of the amendments to this section enacted during the
regular session of the Legislature, one thousand nine hundred
ninety-five.
(a) The term "department" means the state division of human
services.
(b) The term "commissioner" means the commissioner of human
services.
(c) The term "federal-state assistance" means and includes:
(1) All forms of aid, care, assistance and services to or on behalf
of persons, which are authorized by, and who are authorized to
receive the same under and by virtue of, subchapters one, four, five, ten, fourteen, sixteen, eighteen and nineteen, chapter seven,
Title 42, United States Code, as those subchapters have heretofore
been and may hereafter be amended, supplemented and revised by acts
of Congress, and as those subchapters so amended, supplemented and
revised have heretofore been and may hereafter be supplemented by
valid rules and regulations promulgated by authorized federal
agents and agencies, and as those subchapters so amended,
supplemented and revised have heretofore been and may hereafter be
supplemented by rules promulgated by the state division of human
services, which division rules shall be consistent with federal
laws, rules and regulations, but not inconsistent with state law;
and (2) all forms of aid, care, assistance and services to persons,
which are authorized by, and who are authorized to receive the same
under and by virtue of, any act of Congress, other than the federal
social security act, as amended, for distribution through the state
division of human services to recipients of any form of aid, care,
assistance and services to persons designated or referred to in (1)
of this definition and to recipients of state assistance, including
by way of illustration, surplus food and food stamps, which
Congress has authorized the secretary of agriculture of the United
States to distribute to needy persons.
(d) The term "federal assistance" means and includes all forms
of aid, care, assistance and services to or on behalf of persons,
which are authorized by, and who are authorized to receive the same
under and by virtue of, any act of Congress for distribution
through the state division of human services, the cost of which is
paid entirely out of federal appropriations.
(e) The term "state assistance" means and includes all forms
of aid, care, assistance, services and general relief made possible
solely out of state, county and private appropriations to or on
behalf of indigent persons, which are authorized by, and who are
authorized to receive the same under and by virtue of, state
division of human services' rules.
(f) The term "welfare assistance" means the three classes of
assistance administered by the state division of human services,
namely: Federal-state assistance, federal assistance and state
assistance.
(g) The term "indigent person" means any person who is
domiciled in this state and who is actually in need as defined by
department rules and has not sufficient income or other resources
to provide for such need as determined by the state division of
human services.
(h) The term "domiciled in this state" means being physically
present in West Virginia accompanied by an intention to remain in
West Virginia for an indefinite period of time, and to make West
Virginia his or her permanent home. The state division of human
services may by rules supplement the foregoing definition of the
term "domiciled in this state", but not in a manner as would be
inconsistent with federal laws, rules, and regulations applicable
to and governing federal-state assistance.
(i) The term "medical services" means medical, surgical,
dental and nursing services, and other remedial services recognized
by law, in the home, office, hospital, clinic and any other
suitable place, provided or prescribed by persons permitted or
authorized by law to give such the services; the services to
include drugs and medical supplies, appliances, laboratory,
diagnostic and therapeutic services, nursing home and convalescent
care and such other medical services and supplies as may be
prescribed by the persons.
(j) The term "general relief" means cash or its equivalent in
services or commodities expended for care and assistance to an
indigent person other than for care in a county infirmary, child
shelter or similar institution.
(k) The term "secretary" means the secretary of the department
of health and human resources.
(l) The term "estate" means all real and personal property and
other assets included within the individual's estate as defined in
the state's probate law.
(m) The term "services" means nursing facility services, home
and community-based services, and related hospital and prescription
drug services for which an individual received medicaid medical
assistance.
(n) The term "state medicaid agency" means the division of the
department of health and human resources that is the federally
designated single state agency charged with administration and
supervision of the state medicaid program.
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE OF
COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND
RESPONSIBILITIES GENERALLY.
§9-2-8. Information and referral services.
(a) Each local human services office shall compile, maintain
and post a current list of charity donated food banks and other
emergency food providers in the area served by the local food stamp
office and refer individuals who need food to local programs that
may be able to provide assistance.
(b) The department shall utilize use its existing statewide
toll free telephone number to provide emergency food information
and to refer needy individuals to local programs that may be able
to provide assistance. The department shall publish the telephone
number for referrals in the emergency telephone numbers section of
local telephone books. The department shall display this telephone
number in all its offices that issue food stamps.
CHAPTER 19. AGRICULTURE.
ARTICLE 30. DONATED FOODS.
§19-30-1. Purpose.
The purpose of this article is to address the widespread and
growing problem of hunger in this state by improving the
distribution of food to the hungry, providing a means of funding
agencies which distribute food on an emergency basis, gathering and
disseminating information related to the problem of hunger,
assuring that distribution activities are responsive to the needs
of local donated food banks, facilitating the creation of donated
food banks and ensuring maximum access to food banks.
§19-30-2. Administration of donated foods transferred from
department of health and human resources to
department of agriculture; commissioner authorized
to accept donated funds; employees to be retained.
(a) Effective the first day of July, two thousand one, the
department of agriculture is designated as the state agency to
receive foods donated by the United States department of
agriculture, other federal or state agencies, corporations or
private persons or entities; to receive payments for storage and
distribution of the donated foods; to distribute the foods to
educational or charitable institutions; to allocate funds received
relating to the donated foods; and to enter into agreements and
take other actions necessary to exercise the authority provided.
Effective the first day of July, two thousand one, all
responsibility for receiving, storing and distributing donated
foods previously assigned to the department of health and human
resources is transferred to the department of agriculture. The
secretary of the department of health and human resources and the
commissioner of agriculture, acting jointly, are empowered to take
actions necessary to facilitate an orderly, efficient and
economical transfer of related program functions. Effective the
first day of July, two thousand one, all unencumbered funds
remaining with the department of health and human resources related
to the transferred program shall be transferred to the appropriate
accounts of the department of agriculture.
(b) The commissioner is authorized to solicit and accept donations, gifts, grants bequests and other funds made available to
the department of agriculture from private sources for the donated
foods program, and a special revenue account for the receipt of
these funds is created in the state treasury. The commissioner is
authorized to expend the funds in the special revenue account
consistent with the purpose of the program and the purpose for
which the donated money is provided. All interest accruing from
investment of moneys in the account shall be credited to the
account and used for the same purposes as the principal.
(c) Each person employed by the department of health and human
resources in the donated foods program shall be given the option of
becoming an employee of the department of agriculture or of
remaining an employee of the department of health and human
resources.
§19-30-3. Donation of food items; exemption from civil and
criminal liability.
Any person who makes a good faith donation of prepared or
perishable food which appears to be fit for human consumption at
the time it is donated to a charitable or nonprofit organization is
not liable for damages in any civil action or subject to criminal
prosecution for any injury or death due to the condition of such
the food unless the injury or death is a direct result of the gross negligence, recklessness or intentional misconduct of the donor.
A charitable or nonprofit organization or an officer, employee
or volunteer of the organization that in good faith receives and
distributes, without charge, food which appears to be fit for human
consumption at the time it is distributed is not liable for damages
in any civil action or subject to criminal prosecution for any
injury or death due to the condition of such the food unless the
injury or death is a direct result of the gross negligence,
recklessness or intentional misconduct of the organization or its
officers, employees or volunteer workers.
This section applies to all good faith donations of perishable
food which is not readily marketable due to appearance, freshness,
grade, surplus supply or other conditions.
§19-30-4. Definitions.
In this article, unless the context otherwise requires:
"Agricultural product" means any fowl, animal, vegetable or
other item, product or article which is customary food or which is
proper food for human consumption.
"Donated food bank" means a nonprofit organization that
solicits, stores, or redistributes food products to charitable
organizations and individuals for the purpose of feeding needy
families and individuals.
"Nonprofit charitable organization" means an organization
which is organized and operates for a charitable purpose.
§19-30-5. Authorization of donations; diversion of products by
directors to organizations.
A person engaged in the business of processing, distributing
or selling any agricultural product may donate, free of charge, any
agricultural product to a donated food bank.
To assist in accomplishing the purposes of this section, the
director of each department of state government shall divert,
whenever possible, surplus agricultural products to organizations
operating pursuant to this article.
§19-30-6. Surplus food collection and distribution centers.
The department of agriculture shall continue operation of and
shall publicize the services of an information and food collection
center. The center shall receive and transmit information
concerning available agricultural products and information on each
organization desiring or needing agricultural products to be
donated. The center shall also collect, receive, handle, store and
distribute donated agricultural products. A nonprofit charitable
organization which regularly needs agricultural products may be
listed with a food collection center to be notified if agricultural
products are available.
§19-30-7. Minimum standards for food banks.
In order to qualify as a donated food bank, an organization
shall meet all of the following minimum standards:
(a) Have access to storage facilities and refrigeration
equipment for the purpose of collecting, receiving, handling,
storing and distributing donated agricultural products;
(b) Be incorporated as a nonprofit tax exempt organization and
eligible as a charitable organization under the Internal Revenue
Code (26 United States code section 501 (c) (3)) or affiliated with
a qualified organization;
(c) Maintain records for the proper control of inventory;
(d) Demonstrate the availability of adequate liability
insurance to cover the activities conducted pursuant to this
article; and
(e) Show local support through funding sources, letters of
endorsement and a board of directors which reflects the community
and population to be served.
§19-30-8. State surplus buildings and equipment; availability to
donated food banks.
The commissioner of the department of administration shall
assist a food bank by locating and providing available state
surplus buildings or equipment necessary for the operation of a donated food bank for use without charge.
§19-30-9. Effect of article on other nonprofit organizations.
Nothing in this article may restrict or limit the operation of
any other nonprofit organization which is engaged in the
distribution of agricultural products to nonprofit charitable
organizations.
§19-30-10. Application of article to food stamp act.
Consonant with 7 C.F.R. 273.9(c)(1), programs operated in
accordance with this article shall complement and not in any way
lessen assistance to families and individuals pursuant to the Food
Stamp Act of 1977 as amended, (7 U.S.C. 2011 through 7 U.S.C.
2026).
§19-30-11. Donated food bank assistance fund; restriction.
A donated food bank assistance fund, consisting of moneys
provided by appropriation, is continued. A donated food bank which
meets the minimum standards for food banks may qualify, subject to
available moneys, for assistance from this fund for any of its
operations.
Assistance granted pursuant to this article shall be
administered by the commissioner of agriculture. No more than five
percent of the assistance granted to a donated food bank pursuant
to this article may be used for administrative purposes.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§19-30 is new; therefore, strike-throughs and underscoring
have been omitted.
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