H. B. 4585

 

         (By Delegate Manchin)

         [Introduced February 17, 2014; referred to the

         Committee on the Judiciary then Finance.]

 

 

 

 

A BILL to amend and reenact §9-9-2, §9-9-3, §9-9-5, §9-9-6, §9-9-9, §9-9-11 and §9-9-20 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §9-9-9a, all relating to drug screening for West Virginia Work Program applicants; amending the program’s legislative findings and purpose; amending the lawful purposes for which the West Virginia works program fund may be used; amending program participation requirements; amending the personal responsibility contract requirements; including drug testing requirements; amending the provisions related to a breach of the personal responsibility contract and associated sanctions; and amending provisions related to the confidentiality of the program.

Be it enacted by the Legislature of West Virginia:

    That §9-9-2, §9-9-3, §9-9-5, §9-9-6, §9-9-9, §9-9-11 and §9-9-20 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §9-9-9a, all to read as follows:

ARTICLE 9. WEST VIRGINIA WORK PROGRAM.

§9-9-2. Legislative findings; purpose.

    (a) The Legislature hereby finds and declares that:

    (1) The entitlement of any person to receive federal-state cash assistance is hereby discontinued;

    (2) At-risk families are capable of becoming self-supporting;

    (3) An assistance program should both expect and assist a parent and caretaker-relatives in at-risk families to support their dependent children and children for which they are caretakers;

    (4) Every parent or caretaker-relative can exhibit responsible patterns of behavior so as to be a positive role model;

    (5) Every parent or caretaker-relative who receives cash assistance has a responsibility to participate in an activity to help them prepare for, obtain and maintain gainful employment;

    (6) For a parent or caretaker-relative who receives cash assistance and for whom full-time work is not feasible, participation in some activity is required to further himself or herself, his or her family or his or her community;

    (7) The state should promote the value of work and the capabilities of individuals;

    (8) Job development efforts should enhance the employment opportunities of participants;

    (9) Education is the key to achieving and maintaining life-long self-sufficiency; and

    (10) An assistance program should be structured to achieve a clear set of outcomes; deliver services in an expedient, effective and efficient manner; and maximize community support for participants;

    (11) Cash assistance should ultimately be utilized for the intended purpose of alleviating the effects of poverty and should not be diverted to illicit drug use;

    (12) Children of poverty should be protected by ensuring that cash assistance strengthens family life and reduces the danger that illicit drugs will be introduced into the home environment;

    (13) Persons who suffer from an addiction to drugs should be assisted so as to avoid the temptation of illicit drugs and restructure their lives by focusing on employment and becoming better parents; and

    (14) An assistance program should ensure that the government does not subsidize the public health risk posed by drug use and the associated criminal activities.

    (b) The goals of the program are to achieve more efficient and effective use of public assistance funds; reduce dependency on public programs by promoting self-sufficiency; and structure the assistance programs to emphasize employment and personal responsibility. The success of the program is to be evaluated on the following activities, including, but not limited to, the following: Job entry, job retention, federal work participation requirements and completion of educational activities.

§9-9-3. Definitions.

    In addition to the rules for the construction of statutes in section ten, article two, chapter two of this code and the words and terms defined in section two, article one of this chapter, unless a different meaning appears from the context:

    (a) (1) "At-risk family" means a group of persons living in the same household, living below the federally designated poverty level, lacking the resources to become self-supporting and consisting of a dependent minor child or children living with a parent, stepparent or caretaker-relative; an "at-risk family" may include an unmarried minor parent and his or her dependent child or children who live in an adult-supervised setting;

    (b) (2) “Applicant” means a parent, work-eligible individual or caretaker-relative in an at-risk family who applies for cash assistance for himself or herself and family members.

    (3) "Beneficiary" or "participant" means any parent, work eligible individuals or caretaker-relative in an at-risk family who receives cash assistance for himself or herself and family members;

    (c) (4) “Caretaker-relative” means grandparents or other nonparental caretakers not included in the assistance group or receiving cash assistance directly;

    (d) (5) "Cash assistance" means temporary assistance for needy families;

    (e) (6) "Challenge" means any fact, circumstance or situation that prevents a person from becoming self-sufficient or from seeking, obtaining or maintaining employment of any kind, including physical or mental disabilities, lack of education, testing, training, counseling, child care arrangements, transportation, medical treatment or substance abuse treatment;

    (f) (7) "Community or personal development" means activities designed or intended to eliminate challenges to participation in self-sufficiency activities. These activities are to provide community benefit and enhance personal responsibility, including, but not limited to, classes or counseling for learning life skills or parenting, dependent care, job readiness, volunteer work, participation in sheltered workshops or substance abuse treatment;

    (g) (8) "Department" means the State Department of Health and Human Resources;

    (h) (9) "Education and training" means hours spent regularly attending and preparing for classes in any approved course of schooling or training;

    (i) (10) “Family assessments” means evaluation of the following: Work skills, prior work experience, employability, education and challenges to becoming self-sufficient such as mental health and physical health issues along with lack of transportation and child care;

    (j) (11) "Income" means money received by any member of an at-risk family which can be used at the discretion of the household to meet its basic needs: Provided, That income does not include:

    (1) (A) Supplemental security income paid to any member or members of the at-risk family;

    (2) (B) Earnings of minor children;

    (3) (C) Payments received from earned income tax credit or tax refunds;

    (4) (D) Earnings deposited in an individual development account approved by the department;

    (5) (E) Any educational grant or scholarship income regardless of source; or

    (6) (F) Any moneys specifically excluded from countable income by federal law;

    (k) (12) “Minor child head of household” means an emancipated minor under the age of eighteen years;

    (l) (13) “Nonrecipient parent” means an adult or adults excluded or disqualified by federal or state law from receiving cash assistance;

    (m) (14) "Personal responsibility contract" means a written agreement entered into by the department and a beneficiary for purposes of participation in the West Virginia Works Program;

    (n) (15) "Secretary" means the secretary of the State Department of Health and Human Resources;

    (o) (16) "Subsidized employment" means employment with earnings provided by an employer who receives a subsidy from the department for the creation and maintenance of the employment position;

    (p) (17) "Support services" includes, but is not limited to, the following services: Child care; Medicaid; transportation assistance; information and referral; resource development services which includes assisting families to receive child support and supplemental security income; family support services which includes parenting, budgeting and family planning; relocation assistance; and mentoring services;

    (q) (18) “Temporary assistance to needy families” is the federal program funded under Part A, Title IV of the Social Security Act, codified at 42 U.S.C. §601, et. seq.;

    (r) (19) “Transitional assistance” may include medical assistance, food stamp assistance, child care and supportive services as defined by the secretary and as funding permits;

    (s) (20) “Two-parent family” means two parents with a common child residing in the same household and included in a common West Virginia Works grant payment or, two parents with a common child residing in the same home and one or both of the parents are “work eligible individuals”, as that term is defined in this section, but are excluded from the West Virginia Works payments unless the exclusion is due to an exemption as provided in section eight of this article.

    (t) (21) "Unsubsidized employment" means employment with earnings provided by an employer who does not receive a subsidy from the department for the creation and maintenance of the employment position;

    (u) (22) “Vocational educational training” means organized educational programs, not to exceed twelve months for any individual, that are directly related to the preparation of individuals for employment in current or emerging occupations requiring training other than a baccalaureate or advance degree;

    (v) (23) "Work" means unsubsidized employment, subsidized employment, work experience, community or personal development and education and training;

    (w) (24) “Work eligible individual” means an adult or minor child head-of-household receiving assistance under the West Virginia Works Program or a nonrecipient parent living with a child receiving the assistance; and

    (x) (25) "Work experience" means a publicly assisted work activity, including work associated with the refurbishing of publicly assisted housing, performed in return for program benefits that provide general skills, training, knowledge and work habits necessary to obtain employment. This activity must be supervised daily and on an ongoing basis by an employer, work site sponsor or other responsible party.

§9-9-5. WV works program fund.

    There is continued a special account within the State Treasury to be known as the "WV Works Program Fund". Expenditures from the fund shall be used exclusively to meet the necessary expenditures of the program, including wage reimbursements to participating employers, temporary assistance to needy families, payments for support services, employment-related child care payments, transportation expenses, drug testing expenses, substance use disorder treatment services and administrative costs directly associated with the operation of the program. Moneys paid into the account shall be from specific annual appropriations of funds by the Legislature.

§9-9-6. Program participation.

    (a) Unless otherwise noted in this article, all adult beneficiaries of cash assistance and work eligible individuals shall participate in the West Virginia Works Program in accordance with the provisions of this article. The level of participation, services to be delivered and work requirements shall be defined through legislative rules established by the secretary.

    (b) Any individual exempt under the provisions of section eight of this article may participate in the activities and programs offered through the West Virginia Works Program.

    (c) Support services other than cash assistance through the West Virginia Works Program may be provided to at-risk families to assist in meeting the work requirements or to eliminate the need for cash assistance.

    (d) Cash assistance through the West Virginia Works Program may be provided to an at-risk family if the combined family income, as defined in section three of this article, is below the income test levels established by the department, subject to the following:

    (1) Any adult member of an at-risk family who receives supplemental security income shall be excluded from the benefit group;

    (2) Within the limits of funds appropriated therefor, an at-risk family that includes a married man and woman and dependent children of either one or both may receive an additional cash assistance benefit in an amount of $100 or less; and

    (3) An at-risk family shall receive an additional cash assistance benefit in the amount of $25 regardless of the amount of child support collected in a month on behalf of a child or children of the at-risk family, as allowed by federal law.

    (e) All applicants for cash assistance shall complete an assessment of the applicant’s likelihood of a substance use disorder involving the misuse of a controlled substance.

    (1) The assessment required by this subsection shall include a written questionnaire to be completed by the applicant designed to accurately determine the likelihood of the applicant having a substance use disorder involving the misuse of a controlled substance.

    (2) In addition to the other requirements of this article, if the results of the written questionnaire taken by an applicant indicate a reasonable likelihood that the applicant has a substance use disorder involving the misuse of a controlled substance, the applicant may only receive cash assistance provided under this article in accordance with the additional requirements of section nine-a.

§9-9-9. Personal responsibility contract.

    (a) (1) Every eligible adult beneficiary and work eligible individual shall participate in a program orientation, family assessments and in the development, and subsequent revisions, of a personal responsibility contract. The contract shall be defined based on the program time limits, support services available, work requirements and family assessments.

    (2) The participant's contract shall include the following requirements:

    (A) That the participant develop and maintain, with the appropriate health care provider, a schedule of preventive care for his or her dependent child or children, including routine examinations and immunizations;

    (B) Assurance of school attendance for school-age children under his or her care;

    (C) Assurance of properly supervised child care, including after-school care;

    (D) Establishment of paternity or active pursuit of child support, or both, if applicable and if considered necessary; and

    (E) Nutrition or other counseling, parenting or family-planning classes.

    (3) If the participant is a teenage parent, he or she may work, but the contract shall include the requirements that the participant:

    (A) Remain in an educational activity to complete high school, obtain a general equivalency diploma or obtain vocational training and make satisfactory scholastic progress;

    (B) Attend parenting classes or participate in a mentorship program, or both, if appropriate; and

    (C) Live at home with his or her parent or guardian or in some other adult-supervised arrangements if he or she is an unemancipated minor.

    (4) If the participant is under the age of twenty years and does not have a high school diploma or its equivalent, the contract shall include requirements to participate in mandatory education or training which, if the participant is unemployed, may include a return to high school, with satisfactory scholastic progress required.

    (5) If the participant tests positive for the unlawful use of a controlled substance after taking a drug test under section nine-a, the personal responsibility contract shall include an agreement by the participant to participate in treatment for a substance use disorder and meet the other requirements of section nine-a.

    (b) In order to receive cash assistance, the participant shall enter into a personal responsibility contract. If the participant refuses to sign the personal responsibility contract, the participant and family members are ineligible to receive cash assistance: Provided, That a participant who alleges that the terms of a personal responsibility contract are inappropriate based on his or her individual circumstances may request and shall be provided a fair and impartial hearing in accordance with administrative procedures established by the department and due process of law. A participant who signs a personal responsibility contract or complies with a personal responsibility contract does not waive his or her right to request and receive a hearing under this subsection.

    (c) Personal responsibility contracts shall be drafted by the department on a case-by-case basis; take into consideration the individual circumstances of each beneficiary; reviewed and reevaluated periodically, but not less than on an annual basis; and, in the discretion of the department, amended on a periodic basis.

§9-9-9a. Drug testing requirements.

    (a) If the results of a questionnaire required by subsection (d), section six, indicate a reasonable likelihood that an applicant may have a substance use disorder involving the misuse of a controlled substance, the department shall require the applicant to take a drug test at the department's expense in order to continue to receive cash assistance under this article.

    (b) If an applicant refuses to take a drug test required by subsection (a), the department shall terminate cash assistance under this article and the applicant may not reapply for cash assistance under this article for:

    (1) Ninety days after a first refusal to take a drug test within one year; or

    (2) One year after a second refusal to take a drug test within one year.

    (c) Before taking a drug test under this section, an applicant may advise the person administering the test regarding any prescription or over-the-counter medication the applicant is taking.

    (d) The result of a drug test given under this section is a confidential record in accordance with section twenty of this article and disclosure to a third party is prohibited except as provided under subsection (a), section twenty.

    (e) If a applicant tests negative for the unlawful use of a controlled substance after taking a drug test under subsection (a), the applicant remains eligible for cash assistance, subject to the other eligibility requirements of this article and rules promulgated by the secretary pursuant to section four of this article.

    (f) If an applicant tests positive for the unlawful use of a controlled substance after taking a drug test under subsection (a), the participant:

    (1) Shall be given a list of approved substance use disorder treatment providers that are available in the area in which the individual resides; and

    (2) May continue to receive benefits if the applicant enters into and follows the requirements of the personal responsibility contract required by section nine of this article, including:

    (A) Receiving treatment, at the department's expense, from an approved substance use disorder treatment provider for at least sixty days;

    (B) Testing negative for the unlawful use of a controlled substance:

    (i) In each subsequent drug test during treatment; and

    (ii) In an additional drug test given at the conclusion of treatment; and

    (C) Meeting the other requirements for receiving cash assistance under this article and rules promulgated by the secretary pursuant to section four of this article.

    (g) If an applicant declines to enter into a personal responsibility contract pursuant to subsection (f), or if the participant enters into, but fails to meet, a requirement of a personal responsibility contract under subsection (f), including if the participant refuses to take a drug test required by the

personal responsibility contract or tests positive for the unlawful use of a controlled substance in a drug test required by the personal responsibility contract, the department shall terminate cash assistance under this article and the participant may not reapply for cash assistance under this article for:

    (1) Except as provided in subdivision (2), ninety days after the day on which the department determines, under this subsection (f), that the participant is no longer eligible for cash assistance; or

    (2) One year after the day on which the department determines, under subsection (f), that the participant is no longer eligible for cash assistance, if the department has previously determined on at least one other occasion in the past year that the participant is no longer eligible for cash assistance under subsection (f).

    (h) If an applicant is deemed ineligible for cash assistance pursuant to subsection (g):

    (1) A dependent child's eligibility for cash assistance may not be affected;

    (2) An appropriate protective payee shall be designated to receive cash assistance on behalf of the child; and

    (3) The applicant may choose to designate another individual to receive cash assistance for the applicant’s minor child. The designated individual must be an immediate family member or, if an immediate family member is not available or the family member declines the option, another individual approved by the department. The designated individual shall also undergo drug testing before being approved to receive cash assistance on behalf of the child. If the designated individual tests positive for controlled substances, he or she is ineligible to receive cash assistance on behalf of the child.

    (i) The department shall:

    (1) Adopt rules for drug tests that shall include the following:

    (A) The illegal drugs that will be the subject of testing;

    (B) Methods for assuring minimal privacy intrusions and the dignity of the person being tested during the collection of body fluid specimens for such testing;

    (C) Methods for assuring proper storage, transportation, and handling of such specimens in order to ensure the integrity of the testing process;

    (D) The identity of those persons entitled to the results of such tests and methods for ensuring that only authorized persons are given access to such results;

    (E) A list of laboratories qualified to conduct established drug tests;

    (F) A list of approved substance abuse treatment providers; and

    (G) Procedures for persons undergoing drug testing, prior to the collection of body fluid specimens for such testing, to provide information regarding use of any drug pursuant to a medical prescription or as otherwise authorized by law which may affect the results of such test.

    (2) Provide notice of drug testing to each applicant at the time of application. The notice shall advise the applicant that drug testing will be conducted as a condition for receiving cash assistance and that the department shall bear the cost of testing. Dependent children under the age of 18 are exempt from the drug testing requirement;

    (3) Require that for two-parent families, one parent shall comply with the drug testing requirement;

    (4) Require that any minor child head of household shall comply with the drug testing requirement;

    (5) Advise each individual to be tested, before the test is conducted, that he or she may, but is not required to, advise the agent administering the test of any prescription or over the counter medication he or she is taking;

    (6) Require each individual to be tested to sign a written acknowledgment that he or she has received and understood the notice and advice provided under this subsection;

    (7) Assure each individual being tested a reasonable degree of dignity while producing and submitting a sample for drug testing, consistent with the state's need to ensure the reliability of the sample;

    (8) Specify circumstances under which an individual who fails a drug test has the right to take one or more additional tests;

    (9) Inform an individual who declines to enter into a personal responsibility contract pursuant to subsection (f), or if the participant enters into, but fails to meet, a requirement of a personal responsibility contract under subsection (f), including if the participant refuses to take a drug test required by the

personal responsibility contract or tests positive for the unlawful use of a controlled substance in a drug test required by the personal responsibility contract, the department shall terminate cash assistance under this article and the participant may not reapply for cash assistance for the time periods specified in subsection (g); and

    (10) Provide any individual who tests positive with a list of substance abuse treatment providers approved by the department which are available in the area in which he or she resides.

    (k) As used in this section, “drug test” means the collection and testing of bodily fluids administered in a manner equivalent to that required by the Mandatory Guidelines for Federal Workplace Drug Testing Programs (53 C.F.R. 11979, 32 et seq., as amended) or other professionally valid procedures approved by the department: Provided, That, where possible and practicable, a swab test shall be used in lieu of a urinalysis.

§9-9-11. Breach of contract; notice; sanctions.

    (a) The department may terminate cash assistance benefits to an at-risk family if it finds any of the following:

    (1) Fraud or deception by the beneficiary in applying for or receiving program benefits;

    (2) A substantial breach by the beneficiary of the requirements and obligations set forth in the personal responsibility contract and any amendments or addenda to the contract;

    (3) A refusal to enter into a personal responsibility contract pursuant to subsection (f), section nine-a, or the failure to meet a requirement of a personal responsibility contract under subsection (f), section nine-a, including the refusal to take a drug test required by the personal responsibility contract, or testing positive for the unlawful use of a controlled substance in a drug test required by the personal responsibility contract; or

    (3) (4) A violation by the beneficiary of any provision of the personal responsibility contract or any amendments or addenda to the contract, this article, or any rule promulgated by the secretary pursuant to this article.

    (b) In the event the department determines that benefits received by the beneficiary are subject to reduction or termination, written notice of the reduction or termination and the reason for the reduction or termination shall be deposited in the United States mail, postage prepaid and addressed to the beneficiary at his or her last known address at least thirteen days prior to the termination or reduction. The notice shall state the action being taken by the department and grant to the beneficiary a reasonable opportunity to be heard at a fair and impartial hearing before the department in accordance with administrative procedures established by the department and due process of law.

    (c) In any hearing conducted pursuant to the provisions of this section, the beneficiary has the burden of proving that his or her benefits were improperly reduced or terminated and shall bear his or her own costs, including attorneys fees.

    (d) The secretary shall determine by rule what constitutes de minimis violations and those violations subject to sanctions and maximum penalties. In the event the department finds that:

    (1) A beneficiary has violated any provision of this article, of his or her personal responsibility contract or any amendment or addenda to the contract, or any applicable department rule, the department shall impose sanctions against the beneficiary as follows:

    (1) (A) For the first violation, a one-third reduction of benefits for three months;

    (2) (B) For a second violation, a two-thirds reduction of benefits for three months;

    (3) (C) For a third or subsequent violation, a total termination of benefits for three months.

    (2) An applicant or beneficiary who declines to enter into a personal responsibility contract pursuant to subsection (f), section nine-a, or the participant enters into, but fails to meet, a requirement of a personal responsibility contract under subsection (f), section nine-a, including if the participant refuses to take a drug test required by the personal responsibility contract, or tests positive for the unlawful use of a controlled substance in a drug test required by the personal responsibility contract, the department shall terminate cash assistance under this article and the participant may not reapply for cash assistance under this article for:

    (A) Except as provided in paragraph (B), ninety days after the day on which the department determines, under this subsection (f), section nine-a, that the participant is no longer eligible for cash assistance; or

    (B) One year after the day on which the department determines, under section nine-a, that the participant is no longer eligible for cash assistance, if the department has previously determined on at least one other occasion in the past year that the participant is no longer eligible for cash assistance.

    (e) For any sanction imposed pursuant to subdivision (1), subsection (d) of this section, if the beneficiary is found to have good cause for noncompliance, as defined by the secretary, the reduction or termination in benefits shall not be imposed and the violation shall not count in determining the level of sanction to be imposed for any future violation. Once a reduction in benefits is in effect, it shall remain in effect for the designated time period: Provided, That if a participant incurs a subsequent sanction before the sanction for a previous violation has expired, the sanctions shall run concurrently: Provided, however, That if a third violation occurs before the period for a previous sanction has expired, benefits shall be terminated and may not be reinstated until the three-month termination period has expired.

    (f) If an applicant is deemed ineligible for cash assistance pursuant to subdivision (2), subsection (d):

    (1) A dependent child's eligibility for cash assistance may not be affected;

    (2) An appropriate protective payee shall be designated to receive cash assistance on behalf of the child; and

    (3) The applicant may choose to designate another individual to receive cash assistance for the applicant’s minor child. The designated individual must be an immediate family member or, if an immediate family member is not available or the family member declines the option, another individual approved by the department. The designated individual shall also undergo drug testing before being approved to receive cash assistance on behalf of the child. If the designated individual tests positive for controlled substances, he or she shall be ineligible to receive cash assistance on behalf of the child.

§9-9-20. Confidentiality, fines and penalties.

    (a) Except as otherwise provided in this code or rules, all records and information of the department regarding any beneficiary or beneficiary's family members, including food stamps, child support, results of drug testing and Medicaid records, are confidential and shall not be released, except under the following circumstances:

    (1) If permissible under state or federal rules or regulations;

    (2) Upon the express written consent of the beneficiary or his or her legally authorized representative;

    (3) Pursuant to an order of any court of record of this state or the United States based upon a finding that the information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by this section: Provided, That all confidential records and information presented to the court shall after review be sealed by the clerk and shall not be open to any person except upon order of the court upon good cause being shown for the confidential records and information to be opened; or

    (4) To a department or division of the state or other entity, pursuant to the terms of an interagency or other agreement: Provided, That any agreement specifically references this section and extends its requirements for confidentiality to the other entity receiving the records or information, its agents and employees.

    (b) Any person who knowingly and willfully releases or causes to be released the confidential records and information described in this section, except under the specific circumstances enumerated in this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in the county or regional jail for not more than six months, or both.

 

 

    NOTE: The purpose of this bill is to amend the lawful purposes for which the West Virginia works program fund may be used. It amends program participation requirements and the personal responsibility contract requirements, including drug testing requirements. The bill amends the provisions related to a breach of the personal responsibility contract and associated sanctions and provisions related to the confidentiality of the program.

     

     §9-9-9a is new; therefore, it has been completely underscored.

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