3
ENGROSSED
H. B. 4385
(By Delegates Morgan, Michael and Perdue)
[Introduced February 4, 2008; referred to the
Committee on Government Organization.]
A BILL to amend and reenact §4-2-5 of the Code of West Virginia,
1931, as amended; and to amend and reenact §30-1A-1, §30-1A-2,
§30-1A-3, §30-1A-4, §30-1A-5 and §30-1A-6 of said code, all
relating to the powers and duties of the Legislative Auditor;
authorizing audits of state funds,
including funds derived
from a state controlled function
; providing legislative intent
as to proposals for regulating professions and occupations;
allowing reports to be conducted by the Legislative Auditor by
request; providing recommendations the Legislative Auditor may
make in reports; and expanding the time period during which
legislation may be considered before reapplication for
regulation of a profession or occupation.
Be it enacted by the Legislature of West Virginia:
That §4-2-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §30-1A-1, §30-1A-2, §30-1A-3,
§30-1A-4, §30-1A-5 and §30-1A-6 of said code be amended and
reenacted, all to read as follows:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 2. LEGISLATIVE AUDITOR; POWERS; FUNCTIONS; DUTIES;
COMPENSATION.
§4-2-5. Powers of Auditor.
(a) (1) The Legislative Auditor
shall have has the power and
authority to examine the revenues, expenditures and performance of
every spending unit of the state government,
and of every public or
private entity which is the recipient of state funds, including
funds derived from a state controlled function, to the extent
necessary to ascertain that the funds are properly expended and
reported. and
(2) For these purposes
shall have the Legislative Auditor has
the authority, by such means as are necessary, to require:
(A) Any person holding office in the state government or
employed by the state, to allow
him the Legislative Auditor or his
or her employee or designee to inspect the properties, equipment,
facilities and records of the various agencies, departments,
subdivisions or institutions of the state government for which
appropriations are to be made or have been made, either before or
after estimates
therefor are submitted, and before, during and
after the sessions of the Legislature;
and
(B) Any public or private entity which is the recipient of
state funds, including funds derived from a state controlled
function, to allow the Legislative Auditor or his or her employee
or designee to inspect the properties, equipment, facilities and
records of the entity to the extent necessary to ascertain that the
state funds, including funds derived from a state controlled
function, are properly expended and reported: Provided, That the
Legislative Auditor may only review state funds or invoices for
services provided to the state.
(b) Refusal of any person to allow
such the inspection shall
be reported by the Legislative Auditor to the committee.
(c) The Legislative Auditor shall provide any person or entity
audited pursuant to this section a copy of the audit report, and
shall allow the person or entity an opportunity to respond to the
audit report in accordance with generally accepted governmental
accounting practices.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 1A. PROCEDURE FOR REGULATION OF OCCUPATIONS AND
PROFESSIONS.
§30-1A-1. Legislative findings.
(a) The Legislature finds that regulation should be imposed
on an occupation or profession only when necessary for the
protection of public health and safety.
(b) The Legislature further finds that establishing a procedure for reviewing the necessity of regulating an occupation
or profession prior to enacting laws for
such the regulation will
better enable it to evaluate the need for the regulation and to
determine the least restrictive regulatory alternative consistent
with public health and safety.
(c) This article is intended to apply to any proposal to
regulate a previously unregulated profession or occupation,
including the formation of an independent board, regulation under
an existing state agency, statutory certification or registration,
or any other manner of regulation, including, but not limited to,
those mechanisms set forth in subsection (d) of section three of
this article.
§30-1A-2. Required application for regulation of professional or
occupational group; application and reporting dates.
(a) Any professional or occupational group or organization,
any individual or any other interested party which proposes the
regulation of any unregulated professional or occupational group or
organization, or who proposes to substantially revise or expand the
scope of practice of a regulated profession or occupation, shall
submit an application to the Joint Standing Committee on Government
Organization, as set out in this article.
(b) The Joint Standing Committee on Government Organization
may only accept an application for regulation of a professional or
occupational group or organization, or substantial revision or expansion of the scope of practice of a regulated profession or
occupation, when the party submitting an application files with the
committee a statement of support for the proposed regulation which
has been signed by at least ten residents or citizens of the State
of West Virginia who are members of the professional or
occupational group or organization for which regulation is being
sought, or for which substantial revision or expansion of the scope
of practice of a regulated profession or occupation is being
sought.
(c) The completed application shall contain:
(1) A description of the occupational or professional group or
organization for which regulation is proposed, or for which a
substantial revision or expansion of the scope of practice of a
regulated profession or occupation is proposed, including a list of
associations, organizations and other groups currently representing
the practitioners in this state, and an estimate of the number of
practitioners in each group;
(2) A definition of the problem and the reasons why regulation
or a substantial revision or expansion of the scope of practice is
necessary;
(3) The reasons why certification, registration, licensure or
other type of regulation is being requested and why that regulatory
alternative was chosen;
(4) A detailed statement of the proposed funding mechanism to pay the administrative costs of the regulation or the substantial
revision or expansion of the scope of practice;
or of the fee
structure conforming with the statutory requirements of financial
autonomy as set out in this chapter
(5) A detailed statement of the location and manner in which
the group
or organization plans to maintain records which are
accessible to the public;
as set out in this chapter
(6) The benefit to the public that would result from the
proposed regulation or substantial revision or expansion of the
scope of practice; and
(7) The cost of the proposed regulation or substantial
revision or expansion of the scope of practice.
(d) Notwithstanding the requirements for application set forth
in this section, the President of the Senate or the Speaker of the
House of Delegates may request that the Legislative Auditor conduct
an evaluation and submit a report on the unregulated practice of a
profession or occupation which includes analysis and findings as
set forth in section three of this article.
§30-1A-3. Analysis and evaluation of application.
(a) The Joint Committee on Government Organization shall refer
the completed application of the professional or occupational group
or organization to the Performance Evaluation and Research Division
of the Office of the Legislative Auditor.
(b) The Performance Evaluation and Research Division of the Office of the Legislative Auditor shall conduct an analysis and
evaluation of the application. The analysis and evaluation shall
be based upon the criteria listed in subsection (c) of this
section. The Performance Evaluation and Research Division of the
Office of the Legislative Auditor shall submit a report, and such
supporting materials as may be required, to the Joint Standing
Committee on Government Organization, as set out in this section.
(c) For an application proposing the regulation of an
unregulated professional or occupational group or organization, the
report shall include evaluation, analysis and findings as to:
(1) Whether the unregulated practice of the occupation or
profession clearly harms or endangers the health, safety or welfare
of the public, and whether the potential for the harm is easily
recognizable and not remote or dependent upon tenuous argument;
(2) Whether the practice of the profession or occupation
requires specialized skill or training which is readily measurable
or quantifiable so that examination or training requirements would
reasonably assure initial and continuing professional or
occupational competence;
(3) Whether the public can be adequately protected by other
means in a more cost-effective manner; and
(4) Whether the professional or occupational group or
organization should be regulated as proposed in the application.
(d) The report may include a recommendation that the occupation or profession be regulated by any of the following
mechanisms, in whole or in part:
(1) By practice standards, which may include restrictions
established by statute;
(2) By registration, which may include inspections or other
enforcement provisions;
(3) By statutory certification, which may include testing or
assessment of the practitioner's credential or competency;
(4) By supervision by a licensed practitioner, which may
include practice standards, registration or statutory
certification; or
(5) By licensure by a new or existing agency or board, which
may include restrictions of the scope of practice, minimum
competency, education, testing, registration, certification,
inspection or enforcement.
(d) (e) For an application proposing the substantial revision
or expansion of the scope of practice of a regulated profession or
occupation, the report shall include the evaluation, analysis and
findings as set forth in subsection (c) of this section inasmuch as
applicable, and a clear recommendation as to whether the scope of
practice should be substantially revised or expanded as proposed in
the application.
(e) (f) For an application received after the first day of
December and on or before the first day of June, the Performance Evaluation and Research Division of the Office of the Legislative
Auditor shall present a report to the Joint Committee on Government
Organization by the thirty-first day of December of that year.
(f) (g) For an application received after the first day of
June and on or before the first day of December, the Performance
Evaluation and Research Division of the Office of the Legislative
Auditor shall present a report to the Joint Committee on Government
Organization by the thirtieth day of June of the next year.
§30-1A-4. Public hearing and committee recommendations.
(a) After receiving the required report, the Joint Standing
Committee on Government Organization may conduct public hearings to
receive testimony from the public, the Governor or his or her
designee, the group, organization or individual who submitted the
proposal for regulation, and any other interested party.
(b) The joint standing committee on government organization
shall report its findings and recommendations to the next regular
session of the Legislature.
(c) The report shall include:
(1) Whether regulation of each occupation or profession is
necessary for the public health and safety and, if regulation is
necessary, recommendations as to what is the least restrictive type
of regulation consistent with the public interest; and
(2) Whether regulation would result in the creation of a new
agency or board or could be implemented more efficiently through an existing agency or board.
(d) The report may include a recommendation that the
occupation or profession be regulated by any of the following
mechanisms, in whole or in part:
(1) By practice standards, which may include restrictions
established by statute;
(2) By registration, which may include inspections or other
enforcement provisions;
(3) By statutory certification, which may include testing or
assessment of the practitioner's credential or competency;
(4) By supervision by a licensed practitioner, which may
include practice standards, registration or statutory
certification;
(5) By licensure by a new or existing agency or board, which
may include restrictions of the scope of practice, minimum
competency, education, testing, registration, certification,
inspection or enforcement.
§30-1A-5. Reapplication requirements.
(a) If
an application is received by the Joint Standing
Committee on Government Organization,
approves an application for
regulation of a professional or occupational group or organization
but the legislation
incorporating its recommendations imposing
regulation does not become law in the year in which it is first
introduced, the applicants for regulation may introduce legislation during each of the
two four successive regular sessions without
having to make reapplication.
(b) If the
Joint Standing Committee on Government Organization
Legislature does not
approve an application adopt legislation
within five successive regular sessions following the application
for regulation, revision or expansion of the scope of practice of
a professional or occupational group or organization, any party who
continues to propose the regulation, revision or expansion must
reapply in accordance with the provisions of this article.
§30-1A-6. Article construction.
(a) Nothing in this article
shall be construed as limiting or
interfering limits or interferes with the right of any member of
the Legislature to introduce or of the Legislature to consider any
bill that would create a new state governmental department or
agency or amend the law with respect to an existing one.
(b) Notwithstanding the provisions of subsection (a) of this
section, the recommendations of the Joint Standing Committee on
Government Organization are to be given considerable weight in
determining if a profession or occupation should be regulated, or
if the scope of practice of a regulated profession or occupation
should be revised or expanded.
NOTE: The purpose of this bill is to revise certain powers and
duties of the Legislative Auditor. It authorizes audits of state
funds, including funds derived from a state controlled function
,
provides legislative intent as to proposals for regulating professions and occupations, allows reports to be conducted by the
Legislative Auditor by request, provides recommendations the
Legislative Auditor may make in reports and expands the time during
which legislation may be considered before reapplication for
regulation of a profession or occupation.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.