Senate Bill No. 125
(By Senators Tomblin (Mr. President) and Boley
By Request of the Executive)
[Introduced January 24, 1996; referred to the Committee
on Health and Human Resources; and then to the Committee on
A BILL to amend and reenact sections two, three, five and six,
article two-b, chapter forty-nine of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
all relating to duties of the department of human services
for the welfare of children; and definitions.
Be it enacted by the Legislature of West Virginia:
That sections two, three, five and six, article two-b,
chapter forty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended and reenacted,
all to read as follows:
ARTICLE 2B. DUTIES OF COMMISSIONER OF HUMAN SERVICES FOR CHILD
As used in this article, unless the context otherwise
"Approval" means a finding by the commissioner that a
facility operated by the state has met the requirements set forth in the rules promulgated pursuant to this article.
"Certificate of approval" means a statement of the
commissioner that a facility operated by the state has met the
requirements set forth in the rules promulgated pursuant to this
"Certificate of license" means a statement issued by the
commissioner authorizing an individual, corporation, partnership,
voluntary association, municipality or county, or any agency
thereof, to provide specified services for a limited period of
time in accordance with the terms of the certificate.
"Certificate of registration" means a statement issued by
the commissioner to a family day care home upon receipt of a
self-certification statement of compliance with the rules
promulgated pursuant to the provisions of this article.
"Child" means any person under eighteen years of age.
"Child care" means responsibilities assumed and services
performed in relation to a child's physical, emotional,
psychological, social and personal needs and the consideration of
the child's rights and entitlements.
"Child placing agency" means a child welfare agency
organized for the purpose of placing children in private family
homes for foster care or for adoption. The function of a child
placing agency may include the investigation and certification of
foster family homes and foster family group homes as provided in
this chapter. The function of a child placing agency may also
include the supervision of children who are sixteen or seventeen years old and living in unlicensed residences.
"Commissioner" means the commissioner of human services.
"Day care center" means a facility operated by a child
welfare agency for the care of
seven thirteen or more children on
a nonresidential basis.
"Department" means the state department of human services.
"Facility" means a place or residence, including personnel,
structures, grounds and equipment used for the care of a child or
children on a residential or other basis for any number of hours
a day in any shelter or structure maintained for that purpose.
"Family day care home" means a facility which is used to
provide nonresidential child care
provided for compensation in a
home other than the child's own home. The provider may care for
four to six children, including children who are living in the
household, who are under six years of age. No more than two of
the total number of children may be under twenty-four months of
"Family day care facility" means any facility which is used
to provide nonresidential child care for compensation for seven
to twelve children, including children who are living in the
household, who are under ten years of age.
"Foster family group home" means a private residence which
is used for the care on a residential basis of six, seven or
eight children who are unrelated by blood, marriage, or adoption
to any adult member of the household.
"Foster family home" means a private residence which is used for the care on a residential basis of no more than five children
who are unrelated by blood, marriage, or adoption to any adult
member of the household.
"Group home" means any facility, public or private, which is
used to provide residential care for ten or fewer children.
"Group home facility" means any facility, public or private,
which is used to provide residential care for eleven or more
"License" means the grant of official permission to a
facility to engage in an activity which would otherwise be
"Registration" means the process by which a family day care
home self-certifies compliance with the rules promulgated
pursuant to this article.
"Residential child care" or "child care on a residential
basis" means child care which includes the provision of nighttime
shelter and the personal discipline and supervision of a child by
guardians, custodians or other persons or entities on a
continuing or temporary basis.
"Rule" means a statement issued by the commissioner of the
standard to be applied in the various areas of child care.
"Variance" means a declaration that a rule may be
accomplished in a manner different from the manner set forth in
"Waiver" means a declaration that a certain rule is
inapplicable in a particular circumstance.
§49-2B-3. License, approval and registration requirements.
(a) Any person, corporation, or child welfare agency other
than a state agency, which operates a residential child care
facility, a child placing agency
or, a day care center or a
family day care facility shall have a license.
(b) Any residential child care facility, day care center or
any child placing agency operated by the state shall obtain
approval of its operations from the commissioner. Such
facilities and placing agencies shall maintain the same standards
of care applicable to licensed facilities, centers or placing
agencies of the same category.
(c) Every family day care home shall have a certificate of
registration. Family day care homes approved by the department
of human services for receipt of funding shall
receive a certificate of registration be registered.
(d) This section does not apply to:
(1) A kindergarten, preschool or school education program
which is operated by a public school or which is accredited by
the state department of education, or any other kindergarten,
preschool or school programs which operate with sessions not
exceeding four hours per day for any child;
(2) An individual or facility which offers occasional care
of children for brief periods while parents are shopping,
engaging in recreational activities, attending religious services
or engaging in other business or personal affairs;
(3) Summer recreation camps operated for children attending sessions for periods not exceeding thirty days;
(4) Hospitals or other medical facilities which are
primarily used for temporary residential care of children for
treatment, convalescence or testing; or
(5) Persons providing family day care solely for children
related to them.
§49-2B-5. Penalties; injunctions.
(a) Any individual or corporation which operates a child
welfare agency, residential child care facility
or, day care
center or family day care facility without a license when a
license is required is guilty of a misdemeanor, and, upon
conviction thereof, shall be punished by imprisonment in jail not
exceeding one year, or a fine of not more than five hundred
dollars, or both fined and imprisoned.
(b) Where a violation of this article or a rule or
regulation promulgated by the commissioner may result in serious
harm to children under care, the commissioner may seek injunctive
relief against any person, corporation, child welfare agency,
child placing agency, day care center, family day care facility,
family day care home or governmental official through proceedings
instituted by the attorney general, or the appropriate county
prosecuting attorney, in the circuit court of Kanawha County or
in the circuit court of any county where the children are
residing or may be found.
§49-2B-6. Conditions of licensure, approval and registration.
(a) A license or approval is effective for a period of two years from the date of issuance, unless revoked or modified to
provisional status based on evidence of a failure to comply with
the provisions of this article or any rules
promulgated pursuant to this article. The license or approval
shall be reinstated upon application to the commissioner and a
determination of compliance.
A certificate of registration is effective for a period of
two years from the date of issuance, unless revoked based on
evidence of a failure to comply with the provisions of this
article or any rules
and regulations promulgated pursuant to this
article. The certificate of registration shall be reinstated
upon application to the commissioner, including a statement of
assurance of continued compliance with the rules and regulations
promulgated pursuant to this article.
The license, approval or registration issued under this
article is not transferable and applies only to the facility and
its location stated in the application. The license or approval
shall be publicly displayed, except family day care homes, family
day care facilities, foster family homes, foster family group
homes and group homes shall be required to display licenses or
registration certificates upon request rather than by posting.
(b) A provisional license or approval may be issued as:
(i) An initial license or approval to a new facility which
has been unable to demonstrate full compliance because the
facility is not fully operational; or
(ii) A temporary license or approval to an established licensed facility which is temporarily unable to conform to the
provisions of this article or the rules
A provisional license or approval shall expire six months
from the date of issuance and may be reinstated no more than two
times. The issuance of a provisional license or approval shall
be contingent upon the submission to the commissioner of an
acceptable plan to overcome identified deficiencies within the
period of the provisional license or approval. Provisional
certificates of registration shall be issued to family day care
(c) The commissioner, as a condition of issuing a license,
registration or approval, may:
(i) Limit the age, sex or type of problems of children
allowed admission to a particular facility;
(ii) Prohibit intake of any children; or
(iii) Reduce the number of children which the agency or
facility operated by the agency is licensed, approved or
registered to receive.
NOTE: The purpose of this bill is to allow licensure of a
"family day care facility" permitting the care of seven to twelve
children in a home. This licensure will preclude treatment of
such homes as "day care centers," but will impose more standards
that the requirement of registration for "family day care homes."
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.