H. B. 2403
(By Delegate Morgan, Martin, Argento, Beach,
Caputo, Eldridge and C. Miller)
[Introduced February 13, 2009; referred to the
Committee on Government Organization.]
A BILL to repeal §30-1-15 of the Code of West Virginia, 1931, as
amended; to amend and reenact §30-1-2a, §30-1-5, §30-1-6,
§30-1-8, §30-1-11 and §30-1-14 of said code; and to amend said
code by adding thereto a new section, designated §30-1-19, all
relating to professional licensing boards; repealing
antiquated ineffective provisions; requiring attendance at
orientation sessions; revising requirements for specific
subject matter at orientation sessions; establishing quorums;
reporting violations; clarifying the issuance of notices to
cease and desist; authorizing boards to propose fees
notwithstanding specific fees established in code; notifying
licensees of proposal of fees in legislative rules; hiring
administrative law judges; clarifying law governing hearings
and administrative hearings; requiring board members to adhere
to ethical standards for appointed officials; permitting
boards to establish a process for modifying or waiving continuing education requirements or renewal fees for
licensees in active duty military service; and requiring
regulatory board reviews.
Be it enacted by the Legislature of West Virginia:
That §30-1-15 of the Code of West Virginia, 1931, as amended,
be repealed; that §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and
§30-1-14 of said code be amended and reenacted; and that said code
be amended by adding thereto a new section, designated §30-1-19,
all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-2a. Required orientation session.
(a)
After Between April 1 and not later than December 1 of
each year, the Auditor shall provide at least one orientation
session on relevant state law and rules governing state boards
and
commissions. All state agencies shall cooperate with and assist in
providing the orientation session if the Auditor requests.
(b)
After the effective date of this section, all All chairs
or chief financial officers of state boards
and commissions newly
created by the Legislature shall attend an orientation session
designed to inform the
state boards
and commissions of the duties
and requirements imposed
on state boards and commissions by state
law and rules
. The chair or chief financial officer of the newly
created board or commission shall attend an orientation session at the earliest possible date following the creation of the board
or
commission.
(c) The orientation session shall include a minimum of thirty
minutes of instructional time dedicated to the statutory duty of
boards to investigate and resolve complaints, including procedures
for investigations, administrative hearings and remedies, due
process protections, and the duty to provide public access to
records of the disposition of complaints, as set forth in section
five of this article.
(d) (c) Topics for the orientation session may include, but
are not limited to:
The statutory duty of boards to investigate and
resolve complaints, including procedures for investigations,
administrative hearings and remedies, and the duty to provide
public access to records of the disposition of complaints; The
official conduct of members, state budgeting and financial
procedures, purchasing requirements, open meetings requirements,
ethics, rule-making procedures, records management, annual reports
and any other topics the Auditor determines to be essential in the
fulfillment of the duties of the members of
state boards
and
commissions.
(e) (d) The orientation session
shall be is open to any member
of new or existing boards
and commissions and each board
or
commission may approve expense reimbursement for the attendance of
one or more of its members.
The chair or chief financial officer of each existing board or commission shall attend an orientation
session within two years following the effective date of this
section. All newly appointed board members shall attend an
orientation session within two years following the effective date
of his or her appointment.
(f) (e) No later than December 31 of each year, the Auditor
shall provide to the chairs of the Joint Standing Committee On
Government
operations Organization a list of the names of board or
commission members attending,
together with the names of the boards
and commissions represented, the orientation session or sessions
offered by the Auditor during the previous year.
(g) (f) The Auditor may charge a registration fee for the
orientation session to cover the cost of providing the orientation
session. The fee may be paid from funds available to a board or
commission.
(h) (g) Notwithstanding the member's normal rate of
compensation for serving on a board, a member attending the
orientation session may be reimbursed for necessary and actual
expenses, as long as the member attends the complete orientation
session.
(i) (h) Ex officio members who are elected or appointed state
officers or employees, and members of boards or commissions that
have purely advisory functions with respect to a department or
agency of the state, are exempt from the requirements of this section.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a) Every board referred to in this chapter shall hold at
least one meeting each year, at such time and place as it may
prescribe by rule,
for the examination of applicants who desire to
practice their respective professions or occupations in this state
and to transact any
other business which may legally come before
it. The board may hold additional meetings as may be necessary,
which shall be called by the
chair.
secretary at the direction of
the president or upon the written request of any three members. A
simple majority of
the members of constitute membership serving on
the board
at a given time constitutes a quorum for the transaction
of
its business.
(b) The board
is authorized to may compel the attendance of
witnesses,
to issue subpoenas,
and subpoenas duces tecum, to
conduct investigations,
and hire an investigator and to take
testimony and other evidence concerning any matter within its
jurisdiction. The
president chair and secretary of the board are
authorized to administer oaths for these purposes.
(c)
Every Each board
referred to in this chapter has a duty to
shall investigate and resolve complaints which it receives and
shall, within six months of the complaint being filed, send a
status report to the party filing the complaint by certified mail
with a signed return receipt and within one year of the status report's return receipt date issue a final ruling, unless the party
filing the complaint and the board agree in writing to extend the
time for the final ruling.
(d)
Every Each board shall provide public access to the record
of the disposition of the complaints which it receives in
accordance with the provisions of chapter twenty-nine-b of this
code. Every board has a duty to report violations of individual
practice acts contained in this chapter to the board by which the
individual may be licensed and shall do so in a timely manner upon
receiving notice of such violations. Every person licensed or
registered by a board has a duty to report to the board which
licenses or registers him or her a known or observed violation of
the practice act or the board's rules by any other person licensed
or registered by the same board and shall do so in a timely manner.
Law-enforcement agencies or their personnel and courts shall report
in a timely manner to the appropriate board any violations of
individual practice acts by any individual.
(e)
Whenever a board referred to in this chapter obtains
information that a person subject to its authority has engaged in,
is engaging in or is about to engage in any act which constitutes
or will constitute a violation of the provisions of this chapter
which are administered and enforced by that board, it may apply to
the circuit court for an order enjoining the act. Upon a showing
that the person has engaged, is engaging or is about to engage in any such act, the court shall order an injunction, restraining
order or other order as the court may deem appropriate. Any person
may report to a board information he or she may have that appears
to show that a person authorized to practice by the board may have
violated the practice act or rules of the board, the provisions of
this article, or engaged in practice without regard for the safety
and welfare of the public. A person who is authorized to practice
by a particular board, who knows of or observes another person
authorized to practice by that same board violating the practice
act or rules of the board, the provisions of this article, or
engaging practice without regard for the safety and welfare of the
public, has a duty to report the alleged violation to the board.
Any person who reports or provides information in good faith is not
subject to civil damages.
§30-1-6. Application for license or registration; examination fee;
prohibiting discrimination.
(a)
Every Each applicant for
license or registration an
authorization to practice under the provisions of this chapter
shall apply
for the license or registration in writing to the
proper board and shall transmit with his or her application an
examination fee which the board is authorized to charge for
an
examination or investigation into the applicant's qualifications to
practice.
(b) Each board
referred to in this chapter is authorized to may establish by rule a deadline for application for examination
which shall be no less than ten nor more than ninety days prior to
the date of the examination.
(c)
Boards Notwithstanding specific fees established in the
articles which govern the licensing boards in this chapter, each
board may set
fees by
legislative rule
fees relating to the
licensing or registering of individuals, which shall be sufficient
to enable the boards to
effectively carry out
effectively their
responsibilities
of licensure or registration of authorizing the
practice and discipline
of the individuals subject to their
authority.
Provided, That when any When a board proposes to
promulgate a rule regarding fees for
licensing or registration,
that the board shall notify its membership of the proposed rule by:
(1) mailing Mailing a copy of the proposed rule to the
membership at the time that the proposed rule is filed with the
Secretary of State;
for publication in the state register in
accordance with section five, article three, chapter twenty-nine-a
of this code or
(2) Posting the proposed rule on its web site and notifying
the membership of the web site posting by mailing a postcard to the
membership or placing a notice in its newsletter at least thirty
days before the proposed rule is filed with the Secretary of State.
(d) In addition to any other information required, the
applicant's social security number shall be recorded on the application.
On any copies provided to the public, the social
security numbers will be redacted.
(e) No board may discriminate against any applicant because of
political or religious opinion or affiliation, marital status,
race, color, gender, creed, age, national origin, disability or
other protected group status.
(f) Any board may deny the application for
licensure or
registration an authorization to practice of an applicant whose
license or registration an authorization to practice in any other
state, territory, jurisdiction or foreign nation has been revoked
by the licensing authority
thereof. The application may be denied
by a board without a hearing unless the applicant requests a
hearing within thirty days of the denial. Any hearing must be
conducted pursuant to the provisions of section eight of this
article or provisions contained in the rules of the board.
§30-1-8. Denial, suspension or revocation of a license or
registration; probation; proceedings; effect of
suspension or revocation;
authority to hire hearing
examiner; transcript; report; judicial review.
(a)
Every Each board
referred to in this chapter may suspend
or revoke the
license authorization to practice of any person who
has been convicted of a felony or who has been found to have
engaged in conduct, practices or acts constituting professional
negligence or a willful departure from accepted standards of professional conduct. Where any person has been convicted of a
felony or has been found to have engaged in such conduct, practices
or acts,
every the board
referred to in this chapter may enter into
consent decrees, to reprimand, to enter into probation orders, to
levy fines not to exceed $1,000 per day per violation, or any of
these, singly or in combination. Each board may also assess
administrative costs. Any costs which are assessed shall be placed
in the special account of the board and any fine which is levied
shall be deposited in the State Treasury's General Revenue Fund.
(b) For purposes of this section, the word "felony" means a
felony or crime punishable as a felony under the laws of this
state, any other state or the United States.
(c)
Every Each board
referred to in this chapter may
promulgate rules in accordance with the provisions of chapter
twenty-nine-a of this code to delineate conduct, practices or acts
which, in the judgment of the board, constitute professional
negligence, a willful departure from accepted standards of
professional conduct or which may render an individual unqualified
or unfit for
licensure, registration or other an authorization to
practice.
(d)
Every Each board
referred to in this chapter may revoke
the license or registration an authorization to practice of an
individual
licensed or otherwise lawfully practicing within this
state whose
license or registration an authorization to practice in any other state, territory, jurisdiction or foreign nation has been
revoked by the licensing authority
thereof.
(e) Notwithstanding any other provision of law to the
contrary, no
certificate, license, registration or authority
authorization to practice issued under the provisions of this
chapter may be suspended or revoked without a prior hearing before
the board or court which issued the certificate, license,
registration or authority, except:
(1) A board is authorized to suspend or revoke
a certificate,
license, registration or authority authorization to practice prior
to a hearing if the person's continuation in practice constitutes
an immediate danger to the public; or
(2)
After due diligence If a board,
after review all
reasonably available relevant information, cannot locate a person
licensed authorized to practice under the provisions of this
chapter within sixty days of a complaint being filed against the
licensee person,
then the board may suspend the
license,
certificate, registration or authority authorization to practice of
the person without holding a hearing.
After due diligence, if If
a board
still after reviewing all reasonably available relevant
information cannot locate the person
licensed authorized to
practice under the provisions of this chapter thirty days after the
suspension of the person's
license, certificate, registration or
authority, then authorization to practice the board may revoke the
license, certificate, registration or authority authorization to
practice of the person without holding a hearing.
(f) In all proceedings before a board or court for the
suspension or revocation of any
certificate, license, registration
or authority authorization to practice issued under the provisions
of this chapter, a statement of the charges against the holder of
the
certificate, license, registration or authority authorization
to practice and a notice of the time and place of hearing shall be
served upon the person as a notice is served under section one,
article two, chapter fifty-six of this code at least thirty days
prior to the hearing.
and he He or she may appear with witnesses
and be heard in person, by counsel, or both. The board may take
oral or written proof, for or against the
accused holder of the
authorization to practice, as it may consider advisable. If upon
hearing the board finds that the charges are true, it may suspend
or revoke the
certificate, license, registration or authority and
suspension or revocation shall take from the person all rights and
privileges acquired thereby authorization to practice.
(g) The board may conduct the hearing or elect to have a
hearing examiner or an administrative law judge conduct the
hearing. If the hearing is conducted by a hearing examiner or an
administrative law judge:
(1) The hearing examiner or administrative law judge shall be
licensed to practice law in this state, and shall conform to the Code of Conduct for Administrative Law Judges as set forth by the
Ethics Commission in legislative rule;
(2) At the conclusion of a hearing, the hearing examiner or
administrative law judge shall prepare a proposed written order
containing recommended findings of fact and conclusions of law, and
may contain recommended disciplinary sanctions if the board so
directs;
(3) The board may accept, reject, modify or amend the
recommendations of the hearing examiner or administrative law
judge; and
(4) If the board rejects, modifies or amends the
recommendations, the board shall state in the order a reasoned,
articulate justification based on the record for the rejection,
modification or amendment.
(g) (h) Pursuant to the provisions of section one, article
five, chapter twenty-nine-a of this code, informal disposition may
also be made by the board of any contested case by stipulation,
agreed settlement, consent order or default. Further, the board
may suspend its decision and place a licensee found by the board to
be in violation of the applicable practice on probation.
(h) (i) Any person denied
a license, certificate, registration
or authority authorization to practice who believes the denial was
in violation of this article or the article under which the
license, certificate, registration or authority licensee is authorized shall be entitled to a hearing on the action
denying the
license, certificate, registration or authority. Hearings under
this subsection are in accordance with the provisions for hearings
which are set forth in this section.
(i) (j) A stenographic report of each proceeding on the
denial, suspension or revocation
of a certificate, license,
registration or authority shall be is made at the expense of the
board and a transcript of the hearing retained in its files. The
board shall make a written report of its findings, which shall
constitute part of the record.
(j) (k) All
hearings and administrative proceedings under the
provisions of this section
will be held in accordance with the
provisions of article five, chapter twenty-nine-a of this code, and
are subject to review by the Supreme Court of Appeals.
(k) (l) On or before the first day of July, two thousand one,
every Each board
referred to in this chapter shall adopt
procedural
rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code, which shall specify a procedure for the
investigation and resolution of all complaints against persons
licensed under this chapter.
The proposed legislative rules
relating only to complaint procedures or contested case hearing
procedures required by the prior enactment of this subsection shall
be redesignated as procedural rules in accordance with the
provisions of article three, chapter twenty-nine-a of this code. Each board shall file the procedural rules required by this
subsection by the thirty-first day of January, two thousand one.
The public hearing or public comment period conducted for the
proposed legislative rules shall serve as the public hearing or
public comment period required by section five, article three,
chapter twenty-nine-a of this code.
§30-1-11. Compensation of members; expenses; adherence to ethical
standards.
(a) Each member of every board in this chapter is entitled to
receive compensation for attending official meetings or engaging in
official duties not to exceed the amount paid to members of the
Legislature for their interim duties as recommended by the Citizens
Legislative Compensation Commission and authorized by law. A board
member may not receive compensation for travel days that are not on
the same day as the official meeting or official duties.
(b) The limitations contained in this section do not apply if
they conflict with provisions of this chapter relating to a
particular board and enacted after January 1, 1995.
(c) A board may reimburse actual and necessary expenses
incurred for each day or portion of a day engaged in the discharge
of official duties in a manner consistent with guidelines of the
Travel Management Office of the Department of Administration.
(d) No member of any board in this chapter may receive
compensation as an employee of the board.
(e) Each member of every board in this chapter shall adhere to
the ethical standards for appointed officials as set forth in
section five, article two, chapter six-b of this code, and may not
concurrently serve as an officer of any state professional
association whose mission is, at least in part, to promote the
profession regulated by the board on which the member serves.
§30-1-14. Remission of certain fees
Modifying or waiving continuing
education requirements or renewal fees for persons in
active duty military service.
.
Every board of examination or registration referred to in this
chapter is hereby authorized, under such rules and regulations as
may be adopted by each board, to remit all annual license or annual
registration fees required to be paid by any licensee or registrant
under its supervision during such time as such licensee or
registrant is serving with the Armed Forces of the United States of
America, and to retain the name of such licensee or registrant in
good standing on the roster of said board during said time.
Each board in this chapter may establish and implement
processes for modifying or waiving continuing education
requirements or renewal fees for the renewal of an authorization to
practice for the period of time during which a person regulated by
the board is engaged in active duty military service.
§30-1-19. Regulatory board review.
Each board is subject to a regulatory board review pursuant to the provisions of article ten, chapter four of this code.
NOTE: The purpose of this bill is to update the law governing
professional licensing boards in general.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
THIS BILL IS AN INTERIM BILL RECOMMENDED FOR PASSAGE BY THE
JOINT STANDING COMMITTEE ON GOVERNMENT ORGANIZATION.