WEST VIRGINIA LEGISLATURE

2024 REGULAR SESSION

Introduced

House Bill 5398

By Delegates Brooks, Ridenour, and Martin

[Introduced January 31, 2024; Referred to the Committee on Health and Human Resources then the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section designated §49-2-128a, all relating to establishing a drug screening program for adults who apply to serve as foster parents, kinship parents, or caregivers to children in the legal custody of the Department of Human Services.

Be it enacted by the Legislature of West Virginia:

ARTICLE 2. STATE RESPONSIBILITIES FOR CHILDREN.

§49-2-128a. Program for drug screening of foster or kinship parents, or caregivers.

(a) As used in this section:

(1) "Caregiver" means a foster parent, kinship parent, or a designated official in a residential treatment facility.

(2) "Department" means the Department of Human Services.

(3) "Drug screen" or "drug screening" means any analysis regarding substance abuse conducted by the Department of Human Services on foster parents.

(4) "Drug test" or "drug testing" means a drug test which tests urine for amphetamines (amphetamine and methamphetamine) cocaine, marijuana, opiates (codeine and morphine), phencyclidine, barbiturates, benzodiazepines, methadone, propoxyphene, and expanded opiates (oxycodone, hydromorphone, hydrocodone, oxymorphone).

(5) "Secretary" means the secretary of the department or his or her designee.

(b) The department shall implement and administer a program to drug screen any adult applying to become a foster parent, kinship parent, or caregiver of any displaced child in the legal custody of the Department of Human Services.

(c) Presentation of a valid prescription for a detected substance that is prescribed by a health care provider authorized to prescribe a controlled substance is an absolute defense for failure of any drug test administered under the provisions of this section.

(d) The cost of administering the drug test and initial substance abuse testing program is the responsibility of the Department of Human Services.  Any foster parent, kinship parent, or caregiver applicant whose drug test results are positive may request that the drug test specimen be sent to an alternative drug-testing facility for additional drug testing.  Any applicant who requests an additional drug test at an alternative drug-testing facility shall be required to pay the cost of the alternative drug test.

(e) Any foster parent, kinship parent, or caregiver applicant who has a positive drug test shall complete a substance abuse treatment and counseling program approved by the secretary.  Upon completion of a substance abuse treatment and counseling program, the applicant is subject to periodic drug screening and testing as determined by the secretary in rule if approved as a foster parent, kinship parent, or caregiver.  Any applicant who fails to complete, or refuses to participate in, the substance abuse treatment and counseling program as required under this section is ineligible for foster parent, kinship parent, or caregiver child placement.  Upon a second positive drug test, an applicant shall be ordered to complete a second substance abuse treatment and counseling.  He or she shall be suspended from being considered for foster parent, kinship parent, or caregiver placement with the department or any child placing agency for a period of 12 months, or until he or she completes a substance abuse treatment and counseling program.  Upon a third positive drug test an applicant shall be permanently terminated from being considered for foster parent, kinship parent, or caregiver placement with the department or any child placing agency.

(f) Any applicant who refuses a drug screen or a drug test is ineligible for foster parent, kinship parent, or caregiver placement with the department or any child placing agency.

(g) The secretary shall order an investigation and home visit from Child Protective Services on any applicant who has been suspended from being considered for foster or kinship parent placement with the department or any child placing agency for a period of 12 months.  This investigation and home visit may include a face-to-face interview with any child in the home, if appropriate; the development of a protection plan; and, if necessary for the health and well-being of the child, may also involve law enforcement.  This investigation and home visit shall be followed by a report detailing recommended action which Child Protective Services shall undertake.  Child Protective Services is responsible for providing, directing or coordinating the appropriate and timely delivery of services to any child who is the subject of any investigation and home visit conducted pursuant to this section.  In cases where Child Protective Services determines that the best interests of the child requires court action, it shall initiate the appropriate legal proceeding.

(h) The secretary shall ensure the confidentiality of all drug screen and drug test results administered as part of this program.  Drug screen and test results shall be used only for the purpose of determining eligibility for foster or kinship parent child placement.  At no time may drug screen or test results be released to any public or private person or entity or any law-enforcement agency, except as otherwise authorized by this section.

(i) The secretary shall promulgate emergency rules pursuant to the provisions of §29A-3-1 et seq. of this code to prescribe the design, operation, and standards for the implementation of this section.

(j) A person who intentionally misrepresents any material fact in an application filed under the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100 nor more than $1,000 or by confinement in jail not to exceed six months, or by both fine and confinement.

(k) The secretary shall report to the Joint Committee on Government and Finance by December 31, 2024, and annually after that.  The report shall include, but is not limited to:

(1) The total number of foster parent, kinship parent, or caregiver applicants who were deemed ineligible to provide child placement services under the program due to a positive drug test for controlled substances;

(2) The number of those applicants that are approved for child placement after successful completion of a drug treatment program as specified in this section; and

(3) The total cost to operate the program.

NOTE: The purpose of this bill relates to establishing a drug testing program for adults who apply to serve as foster parents, kinship parents, or caregivers to displaced children in the legal custody of the Department of Human Services.

Strike-throughs language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.