COMMITTEE SUBSTITUTE
FOR
H. B. 4790
(By Delegate Hatfield)
(Originating in the Committee on Government Organization)
[February 24, 2006]
A BILL to amend and reenact §49-2B-2, §49-2B-3 and §49-2B-4 of the
Code of West Virginia, 1931, as amended, relating to the
authority to promulgate emergency rules providing for
voluntary registration of relative family child care homes and
informal family child care homes.
Be it enacted by the Legislature of West Virginia:
That §49-2B-2, §49-2B-3 and §49-2B-4 of the Code of West
Virginia, 1931, as amended, be amended and reenacted to read as
follows:
ARTICLE 2B. DUTIES OF SECRETARY OF HEALTH AND HUMAN RESOURCES FOR
CHILD WELFARE.
§49-2B-2. Definitions.
As used in this article, unless the context otherwise
requires:
(a) "Approval" means a finding by the commissioner secretary
that a facility operated by the state has met the requirements set
forth in the rules promulgated pursuant to this article.
(b) "Certificate of approval" means a statement of the
commissioner secretary that a facility operated by the state has met the requirements set forth in the rules promulgated pursuant to
this article.
(c) "Certificate of license" means a statement issued by the
commissioner secretary 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.
(d) "Certificate of registration" means a statement issued by
the commissioner secretary to a family day care home, informal
family child care home or relative child care home upon receipt of
a self-certification statement of compliance with the rules
promulgated pursuant to the provisions of this article.
(e) "Certification" means a statement issued by the
commissioner secretary to a family day care facility upon
satisfactory inspection, approval and certification that the
facility has complied with the applicable rules promulgated by the
commissioner secretary.
(f) "Child" means any person under eighteen years of age.
(g) "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, but does not include secure
detention or incarceration under the jurisdiction of the division
of juvenile services, created under section two, article five-e of
this chapter.
(h) "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.
(i) "Child welfare agency" means any agency or facility
maintained by the state or any county or municipality thereof, or
any agency or facility maintained by an individual, firm,
corporation, association or organization, public or private, to
receive children for care and maintenance or for placement in
residential care facilities, including, without limitation, private
homes, or any facility that provides care for unmarried mothers and
their children: Provided, That the term does not include juvenile
detention facilities or juvenile correctional facilities operated
by or under contract with the division of juvenile services,
created under section two, article five-e of this chapter, nor any
other facility operated by that division for the secure housing or
holding of juveniles committed to its custody.
(j) "Commissioner" means the commissioner secretary of human
services.
(k) "Day care center" means a facility operated by a child
welfare agency for the care of thirteen or more children on a
nonresidential basis.
(l) "Department" means the department of health and human
resources.
(m) "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: Provided, That the term does not include any juvenile
detention facility or juvenile correctional facility operated by or
under contract with the division of juvenile services, created
pursuant to section two, article five-e of this chapter, for the
secure housing or holding of juveniles committed to its custody.
(n) "Family day care home" means a facility which is used to
provide nonresidential child care for compensation in 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 age.
(o) "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 six years of age. No more than four of
the total number of children may be under twenty-four months of
age.
(p) "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.
(q) "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.
(r) "Group home" means any facility, public or private, which
is used to provide residential child care for ten or fewer children.
(s) "Group home facility" means any facility, public or
private, which is used to provide residential care for eleven or
more children: Provided, That the term does not include any
juvenile detention facility or juvenile correctional facility
operated by or under contract with the division of juvenile
services, created pursuant to section two, article five-e of this
chapter, for the secure housing or holding of juveniles committed
to its custody.
(t) "License" means the grant of official permission to a
facility to engage in an activity which would otherwise be
prohibited.
(u) "Registration" means the process by which a family day
care home, informal family child care home or a relative family
child care home self-certifies compliance with the rules
promulgated pursuant to this article.
(v) "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: Provided, That the term does not include or
apply to any juvenile detention facility or juvenile correctional
facility operated by the division of juvenile services, created
pursuant to section two, article five-e of this chapter, for the
secure housing or holding of juveniles committed to its custody.
(w) "Rule" means a statement issued by the commissioner
secretary of the standard to be applied in the various areas of
child care.
(x) "Variance" means a declaration that a rule may be
accomplished in a manner different from the manner set forth in the
rule.
(y) "Waiver" means a declaration that a certain rule is
inapplicable in a particular circumstance.
(z) "Relative family child care" means a home that provides
nonresidential child care services only to children related to the
care giver. The care giver is a grandparent, great grandparent,
aunt, uncle, great aunt, great uncle or adult sibling of the child
or children receiving care. Care is given in the provider's home.
(aa) "Informal family child care" means a home that is used to
provide nonresidential child care services for compensation for
three or fewer children, including children who are living in the
household, who are under six years of age. Care is given in the
provider's own home to at least one child who is not related to the
caregiver.
§49-2B-3. Licensure, certification, 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 shall obtain
a license from the department.
(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 secretary:
Provided, That this requirement does not apply to any juvenile
detention facility or juvenile correctional facility operated by or under contract with the division of juvenile services, created
pursuant to section two, article five-e of this chapter, for the
secure housing or holding of juveniles committed to its custody.
The facilities and placing agencies shall maintain the same
standards of care applicable to licensed facilities, centers or
placing agencies of the same category.
(c) Any family day care facility which operates in this state,
including family day care facilities approved by the department for
receipt of funding, shall obtain a statement of certification from
the department.
(d) Every family day care home which operates in this state,
including family day care homes approved by the department for
receipt of funding, shall obtain a certificate of registration from
the department.
(e) 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;
(5) Persons providing family day care solely for children
related to them; or
(6) Any juvenile detention facility or juvenile correctional
facility operated by or under contract with the division of
juvenile services, created pursuant to section two, article five-e
of this chapter, for the secure housing or holding of juveniles
committed to its custody.
(f) The commissioner secretary is hereby authorized to issue
an emergency rule relating to conducting a survey of existing
facilities in this state in which children reside on a temporary
basis in order to ascertain whether they should be subject to
licensing under this article or applicable licensing provisions
relating to behavioral health treatment providers.
(g) Any informal family child care home or relative family
child care home may voluntarily register and obtain a certificate
of registration from the department.
§49-2B-4. Rules.
(a) The commissioner secretary shall promulgate rules in
accordance with the provisions of chapter twenty-nine-a of this
code regarding the licensure, approval, certification and
registration of child care facilities and the implementation of the
provisions of this article.
(b) The commissioner secretary shall review the rules
promulgated pursuant to the provisions of this article at least
once every five years, making revisions when necessary or
convenient.
(c) On or before the first day of July, two thousand six, the department shall promulgate emergency rules pursuant to the
provisions of article three, chapter twenty-nine-a of this code
that creates requirements for informal family child care homes and
relative family child care homes that voluntarily register with the
department. All individuals, facilities, entities, programs,
agencies or family child care homes subject to said emergency rules
shall have one hundred eighty days to come into compliance after
promulgation of such rules.
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