SB3001 HFA Householder 7-28
McO
Delegate Householder moves to amend the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting the following:
“CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-7h. Required coverage for certain medical sterilization procedures.
(a) The agency shall provide coverage for the cost of health care services pursuant to this article for the cost of the following health care services:
(1) A tubal ligation, bilateral salpingectomy or hysterectomy for female sterilization. For purposes of this section the term “tubal ligation” shall mean a medical procedure that severs and ties the fallopian tubes to prevent pregnancy by blocking the passage of eggs from the ovaries to the uterus; the term “salpingectomy” shall mean a surgical procedure where one or both of a woman's fallopian tubes are removed; and the term “hysterectomy” shall mean a surgery to remove a woman's uterus; and
(2) A vasectomy for male sterilization. For purposes of this section the term “vasectomy” shall mean a medical procedure that prevents the supply of sperm from entering the urethra by cutting and/or sealing the vas deferens tube that carries semen.
(b) The coverage for these health care services shall not require multiple office visits, waiting periods, or prior authorization prior to the delivery of health care services as set forth in this section.
(c) This section applies to all coverage issued by this agency delivered, issued for delivery, reissued, or extended in the state on and after January 1, 2023, or at any time thereafter when any term of the policy, contract, or plan is changed, or any premium adjustment is made.
CHAPTER 11. TAXATION.
ARTICLE 21. PERSONAL INCOME TAX.
§11-21-10a. Credit for nonfamily adoption Adoption tax
credit.
(a) For tax years beginning before December 31,
2022, A a one time credit against the tax imposed by the
provisions of this article shall be allowed as follows:
Nonfamily adoptions. -- For nonfamily adoptions, the credit is equal to $4,000 which may be taken in the year of the adoption of each nonfamily child, whose age at adoption is under eighteen years. This credit may, at the option of the taxpayer, be taken over a period of three years.
For the purpose of this section and credit "nonfamily adoptions" means adoptions of a child or children by a taxpayer or taxpayers who are not the father, mother, or stepparent of the child.
(b) For tax years beginning after December 31, 2022, a tax credit against the tax imposed by the provisions of this article is allowed for a taxpayer for the qualified expenses paid by taxpayer in the process of an adoption. The tax credit shall not exceed $5,000 per qualified child.
(c) (1) The tax credit provided for in subsection (b) of this section shall be allowed for any expense paid or incurred before the taxable year in which the adoption was final for the taxable year following the taxable year during which the expense was paid or incurred, or
(2) In the case of an expense paid or incurred during or after the taxable year in which the adoption shall become final for the taxable year in which such expense is paid or incurred.
(3) Under no circumstances shall the total aggregate tax credit provided for in subsection (b) of this section exceed the amount of $5,000 per qualified child.
(d) (1) For purposes of the tax credit provided for in subsection (b) of this section, the tax credit allowed may be taken by only one taxpayer if there is more than one taxpayer in the household.
(2) Married individuals filing a joint return shall be treated as one taxpayer.
(3) In the case of individuals not described in subdivision (2) of this subsection who are members of the same household, only the taxpayer with the highest adjusted gross income for the taxable year may take the credit. Once the election of who may claim the tax credit has been made, that election is binding for the tax year for which it is made and for subsequent tax years, unless changed pursuant to specific authorization of the Tax Commissioner, for good cause shown.
(e) (1) For the purposes of this section the term ‘‘qualified adoption expenses’’ means reasonable and necessary adoption fees, court costs, attorney fees, home study expenses, and other expenses:
(A) Which are directly related to, and the principal purpose of which is for, the legal adoption of a qualified child by the taxpayer;
(B) Which are not incurred in violation of state or federal law or in carrying out any surrogate parenting arrangement;
(C) Which are not expenses in connection with the adoption by an individual of a child who is the child of such individual’s spouse;
(D) Which are not reimbursed under an employer program or otherwise; and
(E) Which are not allowed as a credit pursuant to any other provision of this article.
(2) For the purposes of this section an “qualified child” shall mean a child who meets the following criteria:
(A) A child who has not attained the age of 18 years;
(B) A child who is the subject of an adoption proceeding;
(C) A child who is a citizen or resident of the United States; and
(D) A child who is a resident of this state or, if a resident of another state, the adoptive parent is a relative of the child. For purposes of this subdivision, the term “relative of the child” shall have the meaning ascribed in §49-1-206 of this code.
(f) The credit authorized under subsection (b) of this section may, at the election of the eligible taxpayer, be taken as a refundable tax credit in the taxable year in which the taxpayer has first established entitlement thereto as specified in this section, or at the election of the eligible taxpayer, over a period of three successive taxable years, beginning in the taxable year in which credit entitlement is authorized as specified in this section. The credit may not be carried back to any prior taxable year.
(g) The Tax Commissioner may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code. The Tax Commissioner may also promulgate or adopt procedural or interpretive rules, as appropriate to assist in administering this section.
§11-21-16. West Virginia personal exemptions of resident individual.
(a) General. -- For any tax imposed under the provisions of this article with respect to any taxable year prior to January 1, 1983, a resident individual shall be allowed a West Virginia exemption of $600 for each exemption for which he or she is entitled to a deduction for the taxable year for federal income tax purposes. With respect to any taxable year beginning on or after January 1, 1983, and prior to January 1, 1984, said exemption shall be $700; with respect to any taxable year beginning on or after January 1, 1984, said exemption shall be $800; and with respect to any taxable year beginning on or after January 1, 1987, said exemption shall be $2,000. In addition, for tax years beginning on or after January 1, 2023, the resident individual shall be allowed a West Virginia exemption of $2,000 for an unborn child of the resident individual. For purposes of this section, an “unborn child” means a member of the species homo sapiens, at any stage of development, who is carried in the womb and is not aborted.
(b) Husband and wife. -- If the West Virginia income taxes of a husband and wife are separately determined but their federal income tax is determined on a joint return, each of them shall be separately entitled, with respect to any taxable year prior to January 1, 1983, to a West Virginia exemption of $600 for each federal exemption to which he or she would be separately entitled for the taxable year if their federal income taxes had been determined on separate returns. With respect to any taxable year beginning on or after January 1, 1983, and prior to January 1, 1984, said exemption shall be $700; with respect to any taxable year beginning on or after January 1, 1984, said exemption shall be $800; and with respect to any taxable year beginning on or after January 1, 1987, said exemption shall be $2,000.
(c) Surviving spouse. -- For taxable years beginning after December 31, 1986, a surviving spouse shall be allowed one additional exemption of $2,000 for the two taxable years beginning after the year of death of the deceased spouse.
For purposes of this section and section twelve of this article, a surviving spouse means a taxpayer whose spouse died during the taxable year prior to the taxable year for which the annual return is being filed and who has not remarried at any time before the end of the taxable year for which the annual return is being filed.
(d) Certain dependents. -- Notwithstanding any provisions in this section, for taxable years beginning after December 31, 1986, a resident individual whose exemption amount for federal tax purposes is zero by virtue of section 151(d)(2) of the Internal Revenue Code of 1986, shall be allowed a single West Virginia exemption in the amount of $500.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5K. EARLY INTERVENTION SERVICES FOR CHILDREN WITH DEVELOPMENTAL DELAYS.
§16-5K-7. Early intervention services for adopted children.
(a) Effective July 1, 2023, a child or children adopted on and after that date whose adoptive parent or parents are residents of West Virginia shall be eligible for any early intervention services provided for families which may be offered by the Department of Health and Human Resources. These services shall include, but are not limited to, Right From the Start, Drug Free Moms and Babies, and Birth to Three.
(b) If an early intervention program has federal mandated eligibility requirements as a condition of the receipt of federal funds, an adoptive parent or parents and their newly adopted child or children may be required to meet those federally mandated eligibility requirements for participation in the program.
(c) The Department of Health and Human Resources shall recruit additional sites to expand the Drug Free Moms and Babies program and report back to the Legislature if additional funding becomes necessary to operate these sites.
(d) The Bureau for Medical Services shall seek approval of and implement a Medicaid state plan amendment to meet the requirements of this section if the program is offered through or funded by the state Medicaid program and a state Medicaid plan amendment would be necessary to effectuate the purposes of this section.
(e) Use of early intervention services are optional to an adoptive parent or parents and nothing in this section should be construed to require an adoptive parent or parents to use any early intervention service as provided in this section.
ARTICLE 58. FAMILY PLANNING ACCESS ACT.
§16-58-3. Authorization to dispense self-administered hormonal contraceptives.
(b) All state and federal laws governing insurance coverage of contraceptive drugs, devices, products, and services shall apply to self-administered contraceptives dispensed by a pharmacist under a standing order pursuant to this section.
§16-58-4. Standing prescription drug orders for a self-administered hormonal contraceptive.
(a) The state health officer may
shall prescribe on a statewide basis a self-administered hormonal
contraceptive by one or more standing orders in accordance with a protocol
consistent with the United States Medical Eligibility Criteria for
Contraceptive Use (MEC) Centers for Disease Control and Prevention, that
requires:
(1) Use of the self-screening risk assessment questionnaire described below;
(2) Written and oral education;
(3) The timeline for renewing and updating the standing order;
(4) Who is eligible to utilize the standing order;
(5) The pharmacist to make and retain a record of each person to whom the self-administered hormonal contraceptive is dispensed, including:
(A) The name of the person;
(B) The drug dispensed; and
(C) Other relevant information.
(b) The state health officer acting in good faith in any act permitted or required by this article is immune from liability for any civil action arising out of any act or omission resulting from his or her actions related the prescribing of self-administered hormonal contraceptives unless the act or omission was the result of his or her gross negligence or willful misconduct.
§16-58-6. Guidelines for dispensing a self-administered hormonal contraceptive.
(a) A pharmacist who dispenses a self-administered hormonal contraceptive under this article:
(1) Shall obtain a completed self-screening risk assessment questionnaire that has been approved by the state health officer in collaboration with the Board of Pharmacy, the Board of Osteopathic Medicine, and the Board of Medicine from the patient before dispensing the self-administered hormonal contraceptive;
(2) Shall notify the patient’s primary care provider, if provided;
(3) If when dispensing within the guidelines it is unsafe to dispense a self-administered hormonal contraceptive to a patient then the pharmacist:
(A) May not dispense a self-administered hormonal contraceptive to the patient; and
(B) Shall refer the patient to a health care practitioner or local health department;
(4) May not continue to dispense a self-administered hormonal contraceptive to the patient for more than 12 months after the date of the initial prescription without evidence that the patient has consulted with a health care practitioner during the preceding 12 months; and
(5) Shall provide the patient with:
(A) Written and verbal information regarding:
(i) The importance of seeing the patient’s health care practitioner to obtain recommended tests and screening; and
(ii) The effectiveness and availability of long-acting reversible contraceptives and other effective contraceptives as an alternative to self-administered hormonal contraceptives; and
(B) A copy of the record of the encounter with the patient that includes:
(i) The patient’s completed self-assessment tool; and
(ii) A description of the contraceptives dispensed, or the basis for not dispensing a contraceptive.
(b) If a pharmacist dispenses a self-administered hormonal contraceptive to a patient, the pharmacist shall, at a minimum, provide the patient counseling regarding:
(1) The appropriate administration and storage of the self-administered hormonal contraceptive;
(2) Potential side effects and risks of the self-administered hormonal contraceptive;
(3) The need for backup contraception;
(4) When to seek emergency medical attention;
(5) The risk of contracting a sexually transmitted infection or disease, and ways to reduce the risk of contraction; and
(6) Any additional counseling outlined in the protocol as
prescribed in §16-57-4 §16-58-4 of this code.
(c) The Board of Pharmacy regulates a pharmacist who dispenses a self-administered hormonal contraceptive under this article.
§16-58-7. Dispensing and payment for hormonal and non-hormonal contraceptives.
(a) Beginning July 1, 2023, a local health department as set forth in §16-2-1 et seq. shall prescribe and dispense, as appropriate and medically indicated, both hormonal and non-hormonal contraceptives free of charge.
ARTICLE 63. Support for Mothers and Babies Act.
§16-63-1. Definitions.
The following terms are defined:
"Abortion Industry Organization" means any organization that performs, prescribes, refers for, encourages or promotes abortion as an option for a pregnant woman, or owns, operates, or manages a facility where abortions are performed and prescribed. The term ‘Organization’ means the entire legal entity, including any entity or affiliate that controls, is controlled by, or is under common control with such an entity.
“Pregnancy Help Organization” means an organization that seeks to provide a range of services to individuals facing an unintended pregnancy, with the intention of encouraging pregnant women to give birth to their unborn children. Pregnancy Help Organizations do not perform, prescribe, refer for or encourage abortion, as defined above, nor do they affiliate with any organization that performs, prescribes, refers for, or encourages abortion. Pregnancy Help Organizations include, but are not limited to, organizations traditionally known as “crisis pregnancy organizations,” maternity homes, adoption agencies, and social services agencies that provide material support and other assistance to individuals facing an unintended pregnancy with the intent to help those individuals give birth to their unborn child.
"Management Agency” means an organization that contracts with the Bureau for Public Health, or department thereof to manage the Women and Babies Support Program.
“Subcontractor” means a Pregnancy Help Organization that contracts with the Management Agency to provide Pregnancy Support Program services to individuals.
§16-63-2. Establishing the West Virginia Mothers and Babies Pregnancy Support Program
(a) There is established the West Virginia Mothers and Babies Pregnancy Support Program under the Bureau for Public Health.
(b) The Commissioner of the Bureau for Public Health shall annually provide funding from the Bureau's budget to be distributed to Pregnancy Help Organizations.
(c) A Pregnancy Help Organization is eligible to receive funding under the Mothers and Babies Support Program, subject to meeting the standards defined by the Managing Agency.
(d) Organizations meeting the definition of an Abortion Industry Organization under this statute are specifically excluded from receiving funding under the Pregnancy Support Program.
(e) Funds distributed under the Mothers and Babies Support Program shall be distributed on a fee per service arrangement with a fee per service/hour arrangement as set by the Management Agency.
§16-63-3. Management Agency.
(a) The Bureau shall contract with one or more Management Agency that exclusively promote and support childbirth and are knowledgeable and supportive of Pregnancy Help Organization operations to receive the funds and administer the Pregnancy Support Program, as the Program’s Management Agency.
(b) The Management Agency may not perform, prescribe, refer for, advocate for, or encourage abortion; nor may they affiliate or hold any relationship with any Abortion Industry Organization or any entity that controls, is controlled by, or is under common control with an Abortion Industry Organization.
(c) The Management Agency shall be tasked with the following:
(1) Locating and advertising Program participation to Pregnancy Help Organizations within the state.
(2) Establishing qualification requirements for Pregnancy Help Organization participation which may include, but are not limited to:
(A) Adherence to the “Commitment of Care and Competence,” as established by the Leadership Alliance of Pregnancy Care Organizations.
(B) Participation in trainings organized or led by the Management Agency.
(C) Maintaining policies and processes for child abuse reporting, medical emergencies, and/or addressing client complaints.
(D) Requiring a policy that Pregnancy Help Organizations abide by all applicable federal and state laws.
(E) Requiring annual evaluations of Pregnancy Help Organization staff and volunteers that interact with clients.
(F) Registration as a 501(c)(3) nonprofit organization.
(3) Establishing Invoicing and Reimbursement for Pregnancy Help Organizations receiving funding under the Pregnancy Support Program, including a fee or service schedule whereby costs for each service are set forth.
(4) Establishing statistical standards and other reporting requirements.
(5) Establishing an auditing procedure for Pregnancy Help Organizations to ensure financial and operational accountability.
(d) The Management Agency must enter into contracts with Pregnancy Help Organizations to operate as subcontractors for serving individuals under the Pregnancy Support Program.
chapter 33. insurance.
ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.
§33-15-4x. Required coverage for certain medical sterilization procedures.
(a) An insurance policy or plan issued by an insurer pursuant to this article that provides coverage for contraceptives health care services shall provide coverage for the cost of the following health care services:
(1) A tubal ligation, bilateral salpingectomy or hysterectomy for female sterilization. For purposes of this section the term “tubal ligation” shall mean a medical procedure that severs and ties the fallopian tubes to prevent pregnancy by blocking the passage of eggs from the ovaries to the uterus; the term “salpingectomy” shall mean a surgical procedure where one or both of a woman's fallopian tubes are removed; and the term “hysterectomy” shall mean a surgery to remove a woman's uterus; and
(2) A vasectomy for male sterilization. For purposes of this section the term “vasectomy” shall mean a medical procedure that prevents the supply of sperm from entering the urethra by cutting and/or sealing the vas deferens tube that carries semen.
(b) The coverage for these health care services shall not require multiple office visits, waiting periods, or prior authorization prior to the delivery of health care services as set forth in this section.
(c) The requirements of this section shall apply to all insurance policies issued by an insurer pursuant to this article delivered, issued for delivery, reissued, or extended in the state on and after January 1, 2023, or at any time thereafter when any term of the policy, contract, or plan is changed, or any premium adjustment is made.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3ww. Required coverage for certain medical sterilization procedures.
(a) An insurance policy or plan issued by an insurer pursuant to this article that provides coverage for contraceptives health care services shall provide coverage for the cost of the following health care services:
(1) A tubal ligation, bilateral salpingectomy or hysterectomy for female sterilization. For purposes of this section the term “tubal ligation” shall mean a medical procedure that severs and ties the fallopian tubes to prevent pregnancy by blocking the passage of eggs from the ovaries to the uterus; the term “salpingectomy” shall mean a surgical procedure where one or both of a woman's fallopian tubes are removed; and the term “hysterectomy” shall mean a surgery to remove a woman's uterus; and
(2) A vasectomy for male sterilization. For purposes of this section the term “vasectomy” shall mean a medical procedure that prevents the supply of sperm from entering the urethra by cutting and/or sealing the vas deferens tube that carries semen.
(b) The coverage for these health care services shall not require multiple office visits, waiting periods, or prior authorization prior to the delivery of health care services as set forth in this section.
(c) The requirements of this section shall apply to all insurance policies issued by an insurer pursuant to this article delivered, issued for delivery, reissued, or extended in the state on and after January 1, 2023, or at any time thereafter when any term of the policy, contract, or plan is changed, or any premium adjustment is made.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.
§33-24-7x. Required coverage for certain medical sterilization procedures.
(a) A contract, plan or agreement issued by an insurer pursuant to this article that provides coverage for contraceptives health care services shall provide coverage for the cost of the following health care services:
(1) A tubal ligation, bilateral salpingectomy or hysterectomy for female sterilization. For purposes of this section the term “tubal ligation” shall mean a medical procedure that severs and ties the fallopian tubes to prevent pregnancy by blocking the passage of eggs from the ovaries to the uterus; the term “salpingectomy” shall mean a surgical procedure where one or both of a woman's fallopian tubes are removed; and the term “hysterectomy” shall mean a surgery to remove a woman's uterus; and
(2) A vasectomy for male sterilization. For purposes of this section the term “vasectomy” shall mean a medical procedure that prevents the supply of sperm from entering the urethra by cutting and/or sealing the vas deferens tube that carries semen.
(b) The coverage for these health care services shall not require multiple office visits, waiting periods, or prior authorization prior to the delivery of health care services as set forth in this section.
(c) The requirements of this section shall apply to all insurance policies issued by an insurer pursuant to this article delivered, issued for delivery, reissued, or extended in the state on and after January 1, 2023, or at any time thereafter when any term of the policy, contract, or plan is changed, or any premium adjustment is made.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-8u. Required coverage for certain medical sterilization procedures.
(a) A contract, plan or agreement issued by an insurer pursuant to this article that provides coverage for contraceptives health care services shall provide coverage for the cost of the following health care services:
(1) A tubal ligation, bilateral salpingectomy or hysterectomy for female sterilization. For purposes of this section the term “tubal ligation” shall mean a medical procedure that severs and ties the fallopian tubes to prevent pregnancy by blocking the passage of eggs from the ovaries to the uterus; the term “salpingectomy” shall mean a surgical procedure where one or both of a woman's fallopian tubes are removed; and the term “hysterectomy” shall mean a surgery to remove a woman's uterus; and
(2) A vasectomy for male sterilization. For purposes of this section the term “vasectomy” shall mean a medical procedure that prevents the supply of sperm from entering the urethra by cutting and/or sealing the vas deferens tube that carries semen.
(b) The coverage for these health care services shall not require multiple office visits, waiting periods, or prior authorization prior to the delivery of health care services as set forth in this section.
(c) The requirements of this section shall apply to all insurance policies issued by an insurer pursuant to this article delivered, issued for delivery, reissued, or extended in the state on and after January 1, 2023, or at any time thereafter when any term of the policy, contract, or plan is changed, or any premium adjustment is made.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-8x. Required coverage for certain medical sterilization procedures.
(a) A contract, plan or agreement issued by an insurer pursuant to this article that provides coverage for contraceptives health care services shall provide coverage for the cost of the following health care services:
(1) A tubal ligation, bilateral salpingectomy or hysterectomy for female sterilization. For purposes of this section the term “tubal ligation” shall mean a medical procedure that severs and ties the fallopian tubes to prevent pregnancy by blocking the passage of eggs from the ovaries to the uterus; the term “salpingectomy” shall mean a surgical procedure where one or both of a woman's fallopian tubes are removed; and the term “hysterectomy” shall mean a surgery to remove a woman's uterus; and
(2) A vasectomy for male sterilization. For purposes of this section the term “vasectomy” shall mean a medical procedure that prevents the supply of sperm from entering the urethra by cutting and/or sealing the vas deferens tube that carries semen.
(b) The coverage for these health care services shall not require multiple office visits, waiting periods, or prior authorization prior to the delivery of health care services as set forth in this section.
(c) The requirements of this section shall apply to all insurance policies issued by an insurer pursuant to this article delivered, issued for delivery, reissued, or extended in the state on and after January 1, 2023, or at any time thereafter when any term of the policy, contract, or plan is changed, or any premium adjustment is made.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 11. SUPPORT OF CHILDREN.
§48-11-101. General provisions relating to child support.
(a) It is one of the purposes of the Legislature in enacting this chapter to improve and facilitate support enforcement efforts in this state, with the primary goal being to establish and enforce reasonable child support orders and thereby improve opportunities for children. It is the intent of the Legislature that to the extent practicable, the laws of this state should encourage and require a child's parents to meet the obligation of providing that child with adequate food, shelter, clothing, education, and health and child care.
(b) When the domestic relations action involves a minor child or children, the court shall require either party to pay child support in the form of periodic installments for the maintenance of the minor children of the parties in accordance with support guidelines promulgated pursuant to article 13-101, et seq., of this chapter. Payments of child support are to be ordinarily made from a party's income, but in cases when the income is not sufficient to adequately provide for those payments, the court may, upon specific findings set forth in the order, order the party required to make those payments to make them from the corpus of his or her separate estate.
(c) A pregnant mother may seek child support from the father for her unborn child for up to the total cost of all direct pregnancy-related medical expenses. Once the child is born, the current child support law would take effect.
CHAPTER 49. CHILD WELFARE.
ARTICLE 4. COURT ACTIONS.
§49-4-405. Multidisciplinary treatment planning process involving child abuse and neglect; team membership; duties; reports; admissions.
(a) Within 30 days of the initiation of a judicial proceeding
pursuant to part six, of this article §49-4-601 of this code, the
Department of Health and Human Services shall convene a multidisciplinary
treatment team to assess, plan, and implement a comprehensive,
individualized service plan for children who are victims of abuse or neglect
and their families. The circuit court shall set aside
one day each month to enable multidisciplinary treatment teams to meet.
The multidisciplinary team shall obtain and utilize any assessments for the
children or the adult respondents that it deems necessary to assist in the
development of that plan.
(b) In a case initiated pursuant to part six of this article
§49-4-601 of this code, the treatment team consists of:
(1) The child or family’s case manager in the Department of Health and Human Resources;
(2) The adult respondent or respondents;
(3) The child’s parent or parents, guardians, any co-petitioners, custodial relatives of the child, foster or preadoptive parents;
(4) Any attorney representing an adult respondent or other member of the treatment team;
(5) The child’s counsel or the guardian ad litem;
(6) The prosecuting attorney or his or her designee;
(7) A member of a child advocacy center when the child has been processed through the child advocacy center program or programs or it is otherwise appropriate that a member of the child advocacy center participate;
(8) Any court-appointed special advocate assigned to a case;
(9) Any other person entitled to notice and the right to be heard;
(10) An appropriate school official; and
(11) The managed care case coordinator;
(12) The child placing agency case coordinator; and
(11)(13) Any other person or agency representative who may assist in
providing recommendations for the particular needs of the child and family,
including domestic violence service providers.
The child may participate in multidisciplinary treatment team meetings if the child’s participation is deemed appropriate by the multidisciplinary treatment team. Unless otherwise ordered by the court, a party whose parental rights have been terminated and his or her attorney may not be given notice of a multidisciplinary treatment team meeting and does not have the right to participate in any treatment team meeting.
(c) Prior to disposition in each case which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and the type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement with appropriate relatives then with foster care homes, facilities or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child.
(d) The multidisciplinary treatment team shall submit written reports to the court as required by the rules governing this type of proceeding or by the court, and shall meet as often as deemed necessary but at least every three months until the case is dismissed from the docket of the court. The multidisciplinary treatment team shall be available for status conferences and hearings as required by the court.
(e) If a respondent or co-petitioner admits the underlying allegations of child abuse or neglect, or both abuse and neglect, in the multidisciplinary treatment planning process, his or her statements may not be used in any subsequent criminal proceeding against him or her, except for perjury or false swearing.
§49-4-406. Multidisciplinary treatment process for status offenders or delinquents; requirements; custody; procedure; reports; cooperation; inadmissibility of certain statements.
(a) When a juvenile is adjudicated as a status offender pursuant to §49-4-711 of this code, the Department of Health and Human Resources shall promptly convene a multidisciplinary treatment team and conduct an assessment, utilizing a standard uniform comprehensive assessment instrument or protocol, including a needs assessment, to determine the juvenile’s mental and physical condition, maturity and education level, home and family environment, rehabilitative needs and recommended service plan, which shall be provided in writing to the court and team members. Upon completion of the assessment, the treatment team shall prepare and implement a comprehensive, individualized service plan for the juvenile.
(b) When a juvenile is adjudicated as a delinquent or has been granted a pre-adjudicatory community supervision period pursuant to §49-4-708 of this code, the court, either upon its own motion or motion of a party, may require the Department of Health and Human Resources to convene a multidisciplinary treatment team and conduct an assessment, utilizing a standard uniform comprehensive assessment instrument or protocol, including a needs assessment, to determine the juvenile’s mental and physical condition, maturity and education level, home and family environment, rehabilitative needs and recommended service plan, which shall be provided in writing to the court and team members. A referral to the Department of Health and Human Resources to convene a multidisciplinary treatment team and to conduct such an assessment shall be made when the court is considering placing the juvenile in the department’s custody or placing the juvenile out-of-home at the department’s expense pursuant to §49-4-714 of this code. In any delinquency proceeding in which the court requires the Department of Health and Human Resources to convene a multidisciplinary treatment team, the probation officer shall notify the department at least 15 working days before the court proceeding in order to allow the department sufficient time to convene and develop an individualized service plan for the juvenile.
(c) When a juvenile has been adjudicated and committed to the custody of the Director of the Division of Corrections and Rehabilitation, including those cases in which the juvenile has been committed for examination and diagnosis, or the court considers commitment for examination and diagnosis, the Division of Corrections and Rehabilitation shall promptly convene a multidisciplinary treatment team and conduct an assessment, utilizing a standard uniform comprehensive assessment instrument or protocol, including a needs assessment, to determine the juvenile’s mental and physical condition, maturity and education level, home and family environment, rehabilitative needs and recommended service plan. Upon completion of the assessment, the treatment team shall prepare and implement a comprehensive, individualized service plan for the juvenile, which shall be provided in writing to the court and team members. In cases where the juvenile is committed as a post-sentence disposition to the custody of the Division of Corrections and Rehabilitation, the plan shall be reviewed quarterly by the multidisciplinary treatment team. Where a juvenile has been detained in a facility operated by the Division of Corrections and Rehabilitation without an active service plan for more than 60 days, the director of the facility may call a multidisciplinary team meeting to review the case and discuss the status of the service plan.
(d)(1) The rules of juvenile procedure shall govern the procedure for obtaining any assessment of a juvenile, preparing an individualized service plan and submitting the plan and any assessment to the court.
(2) In juvenile proceedings conducted pursuant to §49-4-701 et seq. of this code, the following representatives shall serve as members and attend each meeting of the multidisciplinary treatment team, so long as they receive notice at least seven days prior to the meeting:
(A) The juvenile;
(B) The juvenile’s case manager in the Department of Health and Human Resources or the Division of Corrections and Rehabilitation;
(C) The juvenile’s parent, guardian or custodian;
(D) The juvenile’s attorney;
(E) Any attorney representing a member of the multidisciplinary treatment team;
(F) The prosecuting attorney or his or her designee;
(G) The county school superintendent or the superintendent’s designee;
(H) A treatment or service provider with training and clinical
experience coordinating behavioral or mental health treatment; and
(I) The managed care case coordinator; and
(J) Any other person or agency representative who may assist in providing recommendations for the particular needs of the juvenile and family, including domestic violence service providers. In delinquency proceedings, the probation officer shall be a member of a multidisciplinary treatment team. When appropriate, the juvenile case manager in the Department of Health and Human Resources and the Division of Corrections and Rehabilitation shall cooperate in conducting multidisciplinary treatment team meetings when it is in the juvenile’s best interest.
(3) Prior to disposition, in each case in which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement at facilities or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child. The multidisciplinary treatment team shall also determine and advise the court as to the individual treatment and rehabilitation plan recommended for the child for either out-of-home placement or community supervision. The plan may focus on reducing the likelihood of reoffending, requirements for the child to take responsibility for his or her actions, completion of evidence-based services or programs or any other relevant goal for the child. The plan may also include opportunities to incorporate the family, custodian or guardian into the treatment and rehabilitation process.
(4) The multidisciplinary treatment team shall submit written reports to the court as required by applicable law or by the court, shall meet with the court at least every three months, as long as the juvenile remains in the legal or physical custody of the state, and shall be available for status conferences and hearings as required by the court. The multidisciplinary treatment team shall monitor progress of the plan identified in subdivision (3) of this subsection and review progress of the plan at the regular meetings held at least every three months pursuant to this section, or at shorter intervals, as ordered by the court, and shall report to the court on the progress of the plan or if additional modification is necessary.
(5) In any case in which a juvenile has been placed out of his or her home except for a temporary placement in a shelter or detention center, the multidisciplinary treatment team shall cooperate with the state agency in whose custody the juvenile is placed to develop an after-care plan. The rules of juvenile procedure and §49-4-409 of this code govern the development of an after-care plan for a juvenile, the submission of the plan to the court and any objection to the after-care plan.
(6) If a juvenile respondent admits the underlying allegations of the case initiated pursuant to §49-4-701 through §49-4-725 of this code, in the multidisciplinary treatment planning process, his or her statements may not be used in any juvenile or criminal proceedings against the juvenile, except for perjury or false swearing.
§49-4-601. Petition to court when child believed neglected or abused; venue; notice; right to counsel; continuing legal education; findings; proceedings; procedure.
(a) Petitioner and venue. — If the department or a reputable person believes that a child is neglected or abused, the department or the person may present a petition setting forth the facts to the circuit court in the county in which the child resides, or if the petition is being brought by the department, in the county in which the custodial respondent or other named party abuser resides, or in which the abuse or neglect occurred, or to the judge of the court in vacation. Under no circumstance may a party file a petition in more than one county based on the same set of facts.
(b) Contents of Petition. — The petition shall be verified by the oath of some credible person having knowledge of the facts. The petition shall allege specific conduct including time and place, how the conduct comes within the statutory definition of neglect or abuse with references to the statute, any supportive services provided by the department to remedy the alleged circumstances, and the relief sought. Each petition shall name as a party each parent, guardian, custodian, other person standing in loco parentis of or to the child allegedly neglected or abused and state with specificity whether each parent, guardian, custodian, or person standing in loco parentis is alleged to have abused or neglected the child.
(c) Court action upon filing of petition. — Upon filing of
the petition, the court shall set a time and place for a hearing and shall
appoint counsel for the child. When there is an order for temporary custody
pursuant to this article, the preliminary hearing shall be held within ten
10 days of the order continuing or transferring custody, unless a
continuance for a reasonable time is granted to a date certain, for good cause
shown.
(d) Department action upon filing of the petition. — At the time of the institution of any proceeding under this article, the department shall provide supportive services in an effort to remedy circumstances detrimental to a child.
(e) Notice of hearing. —
(1) The petition and notice of the hearing shall be served by the sheriff’s office, without additional compensation, upon both parents and any other guardian, custodian, or person standing in loco parentis, giving to the persons at least five days' actual notice of a preliminary hearing and at least ten days' notice of any other hearing.
(2) Notice shall be given to the department, any foster or pre-adoptive parent, and any relative providing care for the child.
(3) In cases where personal service within West Virginia cannot be obtained after due diligence upon any parent or other custodian, a copy of the petition and notice of the hearing shall be mailed to the person by certified mail, addressee only, return receipt requested, to the last known address of the person. If the person signs the certificate, service is complete and the certificate shall be filed as proof of the service with the clerk of the circuit court.
(4) If service cannot be obtained by personal service or by
certified mail, notice shall be by publication as a Class II legal
advertisement in compliance with article three, chapter fifty-nine
§59-3-1 et seq. of this code.
(5) A notice of hearing shall specify the time and place of the hearings, the right to counsel of the child, parents, and other guardians, custodians, and other persons standing in loco parentis with the child and the fact that the proceedings can result in the permanent termination of the parental rights.
(6) Failure to object to defects in the petition and notice may not be construed as a waiver.
(f) Right to counsel. —
(1) In any proceeding under this article, the child shall have counsel to represent his or her interests at all stages of the proceedings.
(2) The court’s initial order shall appoint counsel for the child, and for any parent, guardian, custodian, or other person standing in loco parentis with the child if such person is without retained counsel.
(3) The court shall, at the initial hearing in the matter, determine whether persons other than the child for whom counsel has been appointed:
(A) Have retained counsel; and
(B) Are financially able to retain counsel.
(4) A parent, guardian, custodian, or other person standing in loco parentis with the child who is alleged to have neglected or abused the child and who has not retained counsel and is financially unable to retain counsel beyond the initial hearing, shall be afforded appointed counsel at every stage of the proceedings.
(5) Under no circumstances may the same attorney represent both the child and another party. The same attorney may not represent more than one parent or custodian: Provided, That one attorney may represent both parents or custodians where both parents or custodians consent to this representation after the attorney fully discloses to the client the possible conflict and where the attorney advises the court that he or she is able to represent each client without impairing his or her professional judgment; if more than one child from a family is involved in the proceeding, one attorney may represent all the children.
(6) A parent who is a co-petitioner is entitled to his or her own attorney.
(7) The court may allow to each attorney appointed pursuant to this section a fee in the same amount which appointed counsel can receive in felony cases.
(8) The court shall, sua sponte or upon motion, appoint counsel to any unrepresented party if, at any stage of the proceedings, the court determines doing so is necessary to satisfy the requirements of fundamental fairness.
(g) Continuing education for counsel. — Any attorney representing a party under this article shall receive a minimum of eight hours of continuing legal education training per reporting period on child abuse and neglect procedure and practice. In addition to this requirement, any attorney appointed to represent a child must first complete training on representation of children that is approved by the administrative office of the Supreme Court of Appeals. The Supreme Court of Appeals shall develop procedures for approval and certification of training required under this section. Where no attorney has completed the training required by this subsection, the court shall appoint a competent attorney with demonstrated knowledge of child welfare law to represent the parent or child. Any attorney appointed pursuant to this section shall perform all duties required of an attorney licensed to practice law in the State of West Virginia.
(h) Right to be heard. — In any proceeding pursuant to this article, the party or parties having custodial or other parental rights or responsibilities to the child shall be afforded a meaningful opportunity to be heard, including the opportunity to testify and to present and cross-examine witnesses. Foster parents, pre-adoptive parents, and relative caregivers shall also have a meaningful opportunity to be heard.
(i) Findings of the court. — Where relevant, the court shall consider the efforts of the department to remedy the alleged circumstances. At the conclusion of the adjudicatory hearing, the court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether the child is abused or neglected and whether the respondent is abusing, neglecting, or, if applicable, a battered parent, all of which shall be incorporated into the order of the court. The findings must be based upon conditions existing at the time of the filing of the petition and proven by clear and convincing evidence.
(j) Priority of proceedings. — Any petition filed and any
proceeding held under this article shall, to the extent practicable, be given
priority over any other civil action before the court, except proceedings under
section three hundred nine, article twenty-seven, chapter forty-eight
§48-27-309 of this code and actions in which trial is in progress. Any
petition filed under this article shall be docketed immediately upon filing.
Any hearing to be held at the end of an improvement period and any other
hearing to be held during any proceedings under this article shall be held as
nearly as practicable on successive days and, with respect to the hearing to be
held at the end of an improvement period, shall be held as close in time as
possible after the end of the improvement period and shall be held within thirty
30 days of the termination of the improvement period.
(k) Procedural safeguards. — The petition may not be taken as confessed. A transcript or recording shall be made of all proceedings unless waived by all parties to the proceeding. The rules of evidence shall apply. Following the court's determination, it shall ask the parents or custodians whether or not an appeal is desired and the response transcribed. A negative response may not be construed as a waiver. The evidence shall be transcribed and made available to the parties or their counsel as soon as practicable, if the transcript is required for purposes of further proceedings. If an indigent person intends to pursue further proceedings, the court reporter shall furnish a transcript of the hearing without cost to the indigent person if an affidavit is filed stating that he or she cannot pay the transcript.
ARTICLE 5. RECORD KEEPING AND DATABASE.
§49-5-101. Confidentiality of records; nonrelease of records; exceptions; penalties.
(a) Except as otherwise provided in this chapter or by order of the court, all records and information concerning a child or juvenile which are maintained by the Division of Juvenile Services, the Department of Health and Human Resources, a child agency or facility, court or law-enforcement agency are confidential and shall not be released or disclosed to anyone, including any federal or state agency.
(b) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, records concerning a child or juvenile, except adoption records and records disclosing the identity of a person making a complaint of child abuse or neglect, may be made available:
(1) Where otherwise authorized by this chapter;
(2) To:
(A) The child;
(B) A parent whose parental rights have not been terminated; or
(C) The attorney of the child or parent;
(3) With the written consent of the child or of someone authorized to act on the child’s behalf; or
(4) Pursuant to an order of a court of record. However, the court shall review the record or records for relevancy and materiality to the issues in the proceeding and safety, and may issue an order to limit the examination and use of the records or any part thereof.
(c) In addition to those persons or entities to whom information may be disclosed under subsection (b) of this section, information related to child abuse or neglect proceedings, except information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available, upon request, to:
(1) Federal, state or local government entities, or any agent of those entities, including law-enforcement agencies and prosecuting attorneys, having a need for that information in order to carry out its responsibilities under law to protect children from abuse and neglect;
(2) The child fatality review team;
(3) Child abuse citizen review panels;
(4) Multidisciplinary investigative and treatment teams; or
(5) A grand jury, circuit court or family court, upon a finding that information in the records is necessary for the determination of an issue before the grand jury, circuit court or family court.
(d) In the event of a child fatality or near fatality due to child abuse and neglect, information relating to a fatality or near fatality shall be made public by the Department of Health and Human Resources and to the entities described in subsection (c) of this section, all under the circumstances described in that subsection. However, information released by the Department of Health and Human Resources pursuant to this subsection may not include the identity of a person reporting or making a complaint of child abuse or neglect. For purposes of this subsection, “near fatality” means any medical condition of the child which is certified by the attending physician to be life threatening.
(e) Except in juvenile proceedings which are transferred to criminal proceedings, law-enforcement records and files concerning a child or juvenile shall be kept separate from the records and files of adults and not included within the court files. Law-enforcement records and files concerning a child or juvenile shall only be open to inspection pursuant to section one hundred three of this article.
(f) Any person who willfully violates this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000, or confined in jail for not more than six months, or both fined and confined. A person convicted of violating this section is also liable for damages in the amount of $300 or actual damages, whichever is greater.
(g) Notwithstanding the provisions of this section, or any other provision of this code to the contrary, the name and identity of any juvenile adjudicated or convicted of a violent or felonious crime shall be made available to the public;
(h)(1) Notwithstanding the provisions of this section or any other provision of this code to the contrary, the Division of Juvenile Services may provide access to and the confidential use of a treatment plan, court records or other records of a juvenile to an agency in another state which:
(A) Performs the same functions in that state that are performed by the Division of Juvenile Services in this state;
(B) Has a reciprocal agreement with this state; and
(C) Has legal custody of the juvenile.
(2) A record which is shared under this subsection may only provide information which is relevant to the supervision, care, custody and treatment of the juvenile.
(3) The Division of Juvenile Services is authorized to enter into reciprocal agreements with other states and to propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement this subsection.
(4) Other than the authorization explicitly given in this subsection, this subsection may not be construed to enlarge or restrict access to juvenile records as provided elsewhere in this code.
(i) The records subject to disclosure pursuant to subsection (b) of this section shall not include a recorded/videotaped interview, as defined in subdivision (6), section two, article six-b, chapter sixty-two of this code, the disclosure of which is exclusively subject to the provisions of section six of said article.
(k) The department shall provide access to a child placing agency electronic information required to perform an adoption.”
ADOPTED
REJECTED