FLOORBOOK MEMO House Committee on the Judiciary

Com. Sub. for H.B. 2603

Prepared by: Brian Skinner

(3/14/2013) Phone: 304-340-3258

email: brian.skinner@wvhouse.gov

SPONSORS: Delegates Morgan, Stephens, Staggers, Eldridge, Jones, Lynch, Paxton, Hartman, P. Smith, Barrett, and Skinner.

TITLE: Relating to the Family Protection Services Board.

DATE INTRODUCED: February 22, 2013

CODE SECTIONS AFFECTED: W.Va. Code §48-26-404, §48-26-405, §48-26-601, §48-26-602, §48-26-901, §48-26-902, §48-26-1003, §48-26-1005, §48-26-1006 and §48-26-1007. (repeal)

W.Va. Code §48-26-202, §48-26-203, §48-26-204, §48-26-205, §48-26-206, §48-26-301, §48-26-401, §48-26-402, §48-26-403, §48-26-406, §48-26-603, §48-26-604, §48-26-701, §48-26-1001, §48-26-1002 and §48-26-1004 (amends and reenacts)

W.Va. Code §48-26-207, §48-26-208, §48-26-209, §48-26-210, §48-26-211, §48-26-212, §48-26-213, §48-26-214 and §48-26-407 (new)

IDENTICAL/SIMILAR BILLS: S.B. 402.

CHAIRMAN’S SUMMARY:

A. EXISTING LAW: The Family Protection Services Board licenses domestic violence programs (consisting of both shelter and outreach components), monitored parenting and exchange programs, and batteror intervention and prevention programs. The Board has been in existence since 1989. The article was completely rewritten in 2001, based on a model law.

B. THE COMMITTEE SUBSTITUTE: As the programs that the Board administers have evolved over the years, revisions to the law are necessary to clarify the rights and duties of the board, the programs and their participants.

The committee substitute:

➢ updates definitions,

➢ amends the Board’s membership;

➢ updates and reorganizes the powers and duties of the Board;

➢ authorizes a bifurcated licensure process where an applicant must first complete a preliminary application form to demonstrate local need for the proposed service, method of governance and accountability, administrative and programmatic design, and fiscal efficiency;

➢ clarifies provisions related to conditional and provisional licenses that result from deficiencies or noncomplience;

➢ expands the board’s rule-making authority;

➢ amends provisions related to the closure of programs;

➢ establishes administrative hearing procedures and judicial review of the decisions of the Board.

➢ clarifies the purposes for which the Domestic Violence Legal Services Fund may be used;

➢ amends current confidentiality provisions; and

➢ adopts provisions related to licensed monitored parenting and exchange programs.

FULL ANALYSIS:

I. SUBSTANTIVE ANALYSIS

B. THIS BILL: As programs have evolved over the years, revisions to the law are necessary to clarify the rights and duties of the board, the programs and their participants.

The bill modifies current definitions, adds others and places the definitions in alphabetical order.

The bill amends the Board’s membership by clarifying the qualifications for Board membership and providing that the Governor has 90 days to appoint a qualified person to a vacancy from a list nominated by the Board. (§301). Additionally, the bill adds two members to the Board:

➢ a representative of a batterer intervention and prevention program licensed by the Board; and

➢ an administrator of the WV Supreme Court of Appeals (or designee) from the Division of Family Court Services, familiar with monitored parenting and exchange program services, or a representative of a licensed monitored parenting and exchange program, selected from a list nominated by the board. (§301)

The powers and duties of the Board are reorganized, as well as clarified. (§401). The percentage of funds which may be expended for administrative purposes is increased from 5% to 15%. (§401(a)(5)). The Department of Health and Human Resources will distribute one half of the remaining funds equally, and the other half of the remaining funds in accordance with a formula determined by the board, to licensed domestic violence programs.

The Board is authorized to:

➢ Advise the Secretary of the DHHR and the Chair of the Governor’s Committee on Crime, Delinquency and Correction on matters of concern relative to their responsibilities under the Domestic Violence Act;

➢ Delegate to the Secretary of the DHHR such powers and duties of the Board as the Board considers appropriate to delegate, including, but not limited to, the authority to approve, disapprove, revoke or suspend licenses;

➢ Advise administrators of state or federal funds of licensure violations and closures of programs; and

➢ Exercise all other powers necessary to implement the provisions of the domestic Violence Act. (§ 401(b)).

The bill authorizes a bifurcated licensure process where an applicant must first complete a preliminary application form to demonstrate local need for the proposed service, method of governance and accountability, administrative and programmatic design, and fiscal efficiency. (§402(b)). The Board has 60 days of receipt of the preliminary application to respond. This period is extended from the current 45 days. If the Board approves the preliminary application, the applicant may complete a full application form. Upon the receipt of a full application the Board must grant or deny a license within 60 days. The duration of a license is extended from 1 to up to 3 years, subject to periodic licensure reviews. (§402(c)).

Provisions related to provisional licenses is amended to provide for a 180 day provisional license, subject to an additional 180 day extension. (§402(e)). Provisional licenses may be granted to a program that is noncompliant with non-life threatening safety, programmatic, facility or administrative standards. The Board is also authorized to grant a conditional license for up to 90 days to a program that has violations of safety or accountability standards which may threaten the health, well-being or safety of its participants or staff, or the responsible operation of the program, or that have a history or pattern of noncompliance with established standards. (§402(f)).

Technical assistance may be provided to prevent and resolve deficiencies in a program and the Board is authorized to issue a cease and desist order or apply to a circuit court for such an order when it becomes aware that a person or persons are engaged in conduct that constitutes a violation of law. (§402(h)).

The Board’s rule-making authority is expanded and clarified, to include rules for operating procedures of the board, minimum standards for governance, administration, safety, referral process, intake services, financial accountability, program participant records, service plans, confidentiality, facility requirements, reports, restrictions, and licensure requirements for programs. (§403).

Provisions related to the closure of programs is amended to provide that when either the shelter component or the outreach component of a domestic violence program is closed, the remaining component may continue to be licensed. (§406).

A new section establishes administrative hearing procedures and judicial review of the decisions of the Board. (§407). Standard hearing procedures and appeals are provided for the downgrading or discontinuation of a program through temporary or permanent closure.

The purposes for which the Domestic Violence Legal Services Fund may be used, are clarified. (§603). All programs are required to file annual reports with the board. Information in a report may not identify any person served by a program nor enable any person to determine the identity of any such person. (§604).

The bill amends the current provisions related to the confidentiality of the program participants. New language in included in the bill that provides specific requirements for releases of information for participants in batterer intervention and prevention programs. (§701).

Section 1001 that currently contains legislative findings, is amended to replaces those findings with provisions authorizing judges and magistrates to order persons appearing before them to apply to a licensed monitored parenting and exchange program for monitored parenting or monitored exchange of children. However, a licensed monitored parenting and exchange program may not be required to perform duties which are beyond the program’s capacity or scope of services.

Additionally, the section authorizes licensed monitored parenting and exchange programs to receive referrals from judges, magistrates, child protective services, attorneys and other agencies and serve self-referrals when the adult parties agree to the use of the program. Id.

C. COMMITTEE ON GOVERNMENT ORGANIZATION AMENDMENT: The Committee on Government Organization amended the bill to make non-substantive technical corrections to sections 212, 301, 401 and 701.

D. JUDICIARY COMMITTEE SUBSTITUTE: The committee substitute adopted by the Committee on the Judiciary simply includes the Committee on Government Organization’s amendments, along with several other staff suggested drafting changes.

II. SECTION DIRECTORY:

§48-26-202. Advocacy defined.

This is a new definition.

§48-26-203. Batterer Intervention and Prevention Program defined.

This is a new definition.

§48-26-204. Board defined.

This definition is slightly modified and moved to a new section.

§48-26-205. Closure defined.

This is a new definition.

§48-26-206. Department defined.

This definition is slightly modified and moved to a new section.

§48-26-207. Domestic Violence Legal Services Fund defined.

This is a new definition.

§48-26-208. Domestic violence program defined.

This is a new definition.

§48-26-209. Family Protection Fund defined.

This is a new definition.

§48-26-210. Intimate partner defined.

This is a new definition.

§48-26-211. Licenses defined.

This is a new definition.

§48-26-212. Monitored parenting and exchange defined.

This is a new definition.

§48-26-214. Shelter defined.

This definition is slightly modified and moved to a new section.

§48-26-301. Family protection services board continued; terms.

This section contains the Board’s membership and qualifications. The section is amended to clarify qualifications and add to members to the Board.

§48-26-401. Powers and duties of board. generally.

This section contains the powers and duties of the Board. The section is extensively revised.

§48-26-402. Duties regarding licenses for shelters and programs Requirements, qualifications and terms of licensure; collaboration to assist programs.

This section provides for the issuance of licenses to qualified programs. The licensure process is amended. Additionally, the section authorizes provisional and conditional licenses for deficient programs.

§48-26-403. Duties regarding Legislative rules.

This section authorizes the Board to propose rules for legislative approval. The section is amended to provide minimum requirements for proposed rules.

§ 48-26-404. Regulation of intervention programs for perpetrators; required provisions; duties of providers

This section is repealed.

§ 48-26-405. Licensing providers of intervention programs for perpetrators

This section is repealed.

§48-26-406. Closure of shelters; provisional licensee waivers programs.

This section contains provisions related to the closure of programs. The section is amended to provide that if either the shelter component or the outreach component of a domestic violence program is closed, the remaining component may continue to be licensed.

§48-26-407. Hearing procedures; judicial review.

This new section contains administrative hearing procedures and judicial review of the Board’s decisions.

§ 48-26-601. Funding application requirements

This section is repealed.

§ 48-26-602. Award provisions

This section is repealed.

§48-26-603. Domestic Violence Legal Services Fund.

This section provides for the authorized uses of the Domistic Violence Legal Services Fund.

§48-26-604. Annual reports of licensed programs.

This section provides for the contents of annual reports.

§48-26-701. Confidentiality.

This section includes provisions related to the confidentiality of program participants.

§ 48-26-901. Establishment of local advisory councils authorized

This section is repealed.

§ 48-26-902. Purpose of local advisory councils

This section is repealed.

§48-26-1001. Court orders; use of monitored parenting and exchange programs without court order.

This section has been completely rewritten and now provides for referrals to monitored parenting and exchange programs.

§ 48-26-1003. Rules

This section is repealed.

§ 48-26-1005. Certification of children's centers for the monitoring of custodial responsibility; revocation or suspension of certification

This section is repealed.

§ 48-26-1006. Representations regarding certification; misrepresentations; penalties

This section is repealed.

§ 48-26-1007. Court orders; use of centers without court order

This section is repealed.

III. FISCAL ANALYSIS: A fiscal note is unavailable for this bill. However, in response to a change in the current law regarding the increase in the amount of funds from the Family Protection Fund that may be utilized for administrative costs, the Board has provided a summary of the need for the increase. A copy of the summary is attached to this abstract. (See attached Summary of Family Protection Fund - Fiscal Year 2012 - Protections with Increased Administrative Costs).

IV. COMMENTS

A. CONSTITUTIONAL ISSUES: None identified.

B. GOVERNMENT AGENCIES AFFECTED: Department of Health and Human Resources, Family Protection Board. Courts, Division of Justice and Community Services, and Governor’s Committee on Crime, Delinquency and Correction.

C. RULE MAKING AUTHORITY: Yes.

D. COMMITTEE REFERENCE: Government Organization then Judiciary.

E. TITLE ANALYSIS: The staff suggested committee substitute makes changes to the introduced bill’s title to more accurately reflect the bill’s contents.

F. DRAFTING ISSUES OR OTHER COMMENTS: None.

G. EFFECTIVE DATE: Passage.