Bill Text: WV SB293 | 2018 | Regular Session | Comm Sub
Bill Title: Adding grievance and appellate procedures and judicial review for participants in DHHR safety and treatment program
Spectrum: Partisan Bill (Republican 6-0)
Status: (Introduced - Dead) 2018-02-14 - To Judiciary [SB293 Detail]
Download: West_Virginia-2018-SB293-Comm_Sub.html
WEST virginia legislature
2018 regular session
Committee Substitute
for
Senate Bill 293
By Senators Rucker, Azinger, Clements, Gaunch, Maynard, and Cline
[Originating in the Committee on Health and Human Resources; Reported on February 14, 2018]
A BILL to amend and reenact §17C-5A-3 of the Code of West Virginia, 1931, as amended, relating to the addition of grievance and appellate procedures and judicial review for individuals participating, or who have participated, in the Department of Health and Human Resources’ safety and treatment program; and authorizing the Secretary of the Department of Health and Human Resources to promulgate rules to add such procedures and judicial review for participants of the safety and treatment program.
Be it enacted by the Legislature of West Virginia:
ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.
§17C-5A-3. Safety and treatment program; reissuance of license.
(a) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall administer a comprehensive safety and treatment program for persons whose licenses have been revoked under the provisions of this article or §17C-5-7 or §17B-3-5(6) and shall also establish the minimum qualifications for mental health facilities, day report centers, community correction centers, or other public agencies or private entities conducting the safety and treatment program: Provided, That the Department of Health and Human Resources, Division of Alcoholism and Drug Abuse may establish standards whereby the division will accept or approve participation by violators in another treatment program which provides the same or substantially similar benefits as the safety and treatment program established pursuant to this section.
(b) The program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they relate to driving, defensive driving, or other safety driving instruction and other programs designed to properly educate, train, and rehabilitate the offender.
(c) The Department of Health and Human Resources,
Division of Alcoholism and Drug Abuse shall provide for the preparation of an
educational and treatment the program for each person whose license has
been revoked under the provisions of this article, or
§17C-5-7, or §17B-3-5(6), which shall contain the following: (1) A
listing and evaluation of the offender's prior traffic record; (2) the
characteristics and history of alcohol or drug use, if any; (3) his or her
amenability to rehabilitation through the alcohol safety program; and (4) a
recommendation as to treatment or rehabilitation and the terms and conditions
of the treatment or rehabilitation. The program shall be prepared by persons
knowledgeable in the diagnosis of alcohol or drug abuse and treatment.
(d) There is hereby created a special revenue
account within the State Treasury known as the Department of Health and Human
Resources Safety and Treatment Fund. The account shall be administered by the
Secretary of the Department of Health and Human Resources for the purpose of
administering the comprehensive safety and treatment program established by subsection
(a) of this section §17C-5A-3 (a) of this code. The account may be
invested, and all earnings and interest accruing shall be retained in the
account. The Auditor shall conduct an audit of the fund at least every three
fiscal years.
Effective July 1, 2010, the State Treasurer shall make
a one-time transfer of $250,000 from the Motor Vehicle Fees Fund into the
Department of Health and Human Resources Safety and Treatment Fund.
(e) (1) The program provider shall collect the established fee from each participant upon enrollment unless the department has determined that the participant is an indigent based upon criteria established pursuant to legislative rule authorized in this section.
(2) If the department determined that a participant is
an indigent based upon criteria established pursuant to the legislative rule
authorized by this section, the department shall provide the applicant with
proof of its determination regarding indigence, which proof the applicant shall
present to the interlock provider as part of the application process provided
in section three-a §17C-5A-3a of this article code and/or
the rules promulgated pursuant thereto.
(3) Program providers shall remit to the Department of Health and Human Resources a portion of the fee collected, which shall be deposited by the Secretary of the Department of Health and Human Resources into the Department of Health and Human Resources Safety and Treatment Fund. The Department of Health and Human Resources shall reimburse enrollment fees to program providers for each eligible indigent offender.
(f) On or before January 15 of each year, the Secretary of the Department of Health and Human Resources shall report to the Legislature on:
(1) The total number of offenders participating in the safety and treatment program during the prior year;
(2) The total number of indigent offenders participating in the safety and treatment program during the prior year;
(3) The total number of program providers during the prior year; and
(4) The total amount of reimbursements paid to program providers during the prior year.
(g) The Commissioner of the Division of Motor
Vehicles, after giving due consideration to the program developed for the
offender, shall prescribe the necessary terms and conditions for the reissuance
of the license to operate a motor vehicle in this state revoked under this
article or §17C-5-7, or §17B-3-5(6), which shall include
successful completion of the educational, treatment, or rehabilitation program,
subject to the following:
(1) When the period of revocation is 6 months, the license to operate a motor vehicle in this state may not be reissued until: (A) At least 90 days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid.
(2) When the period of revocation is for a period of 1
year or for more than a year, the license to operate a motor vehicle in this
state may not be reissued until: (A) At least one-half of the time period has
elapsed from the date of the initial revocation, during which time the
revocation was actually in effect; (B) the offender has successfully completed
the program; (C) all costs of the program and administration have been paid;
and (D) all costs assessed as a result of a revocation hearing have been paid.
Notwithstanding any provision in this code, a person whose license is revoked
for refusing to take a chemical test as required by section seven, article
five of this chapter §17C-5-7 of this code for a first offense is
not eligible to reduce the revocation period by completing the safety and
treatment program.
(3) When the period of revocation is for life, the license to operate a motor vehicle in this state may not be reissued until: (A) At least 10 years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid.
(4) Notwithstanding any provision of this code or any rule, any mental health facilities or other public agencies or private entities conducting the safety and treatment program when certifying that a person has successfully completed a safety and treatment program shall only have to certify that the person has successfully completed the program.
(h) (1) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall provide for the preparation of an educational program for each person whose license has been suspended for 60 days pursuant to the provisions of §17C-5A-2(n). The educational program shall consist of not less than 12 nor more than 18 hours of actual classroom time.
(2) When a 60-day period of suspension has been ordered, the license to operate a motor vehicle may not be reinstated until: (A) At least 60 days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a suspension hearing have been paid.
(i) A required component of the treatment program
provided in subsection (b) of this section §17C-5A-3 (b) of this code
and the education program provided for in subsection (c) of this section
§17C-5A-3 (c) of this code shall be participation by the violator with a
victim impact panel program providing a forum for victims of alcohol and
drug-related offenses and offenders to share first-hand experiences on the
impact of alcohol and drug-related offenses in their lives. The Department of
Health and Human Resources, Division of Alcoholism and Drug Abuse
shall propose and implement a plan for victim impact panels where appropriate
numbers of victims are available and willing to participate and shall establish
guidelines for other innovative programs which may be substituted where the
victims are not available to assist persons whose licenses have been suspended
or revoked for alcohol and drug-related offenses to gain a full understanding
of the severity of their offenses in terms of the impact of the offenses on
victims and offenders. The plan shall require, at a minimum, discussion and
consideration of the following:
(A) (1)
Economic losses suffered by victims or offenders;
(B) (2)
Death or physical injuries suffered by victims or offenders;
(C) (3)
Psychological injuries suffered by victims or offenders;
(D) (4)
Changes in the personal welfare or familial relationships of victims or
offenders; and
(E) (5)
Other information relating to the impact of alcohol and drug-related offenses
upon victims or offenders.
The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse shall ensure that any meetings between victims and offenders shall be nonconfrontational and ensure the physical safety of the persons involved.
(j)(1) The Secretary of the Department of
Health and Human Resources shall promulgate a rule for legislative approval in
accordance with article three, chapter twenty-nine-a §29A-3-1 et seq.
of this code to administer the provisions of this section and establish a fee
to be collected from each offender enrolled in the safety and treatment
program. The rule shall include: (A) (1) A reimbursement
mechanism to program providers of required fees for the safety and treatment
program for indigent offenders, criteria for determining eligibility of
indigent offenders, and any necessary application forms; and (B) (1)
program standards that encompass provider criteria including minimum
professional training requirements for providers, curriculum approval, minimum
course length requirements, and other items that may be necessary to properly
implement the provisions of this section.
(2) The Legislature finds that an emergency exists
and, therefore, the secretary shall file by July 1, 2010, an emergency rule to
implement this section pursuant to the provisions of §29A-3-15.
(k) (1) The Department of Health and Human Resources shall provide fair, impartial, and expeditious grievance and appellate procedures for participants of the safety and treatment program to challenge an adverse decision or decisions by the department or other entity with whom the department has contracted to operate the program. The purpose of these procedures would be to allow a person to challenge decisions which negatively affect, or unnecessarily delay, the participant’s outcome in the program.
(2) After all administrative remedies provided by this section or any rules promulgated hereunder have been exhausted, participants who have been deemed unsuccessful in the program, rendering them ineligible for license reinstatement, or whose outcomes in the program have been unnecessarily delayed, are entitled to judicial review of the adverse decision or decisions, pursuant to § 29A-5-4 of this code.
(3) The Secretary of the Department of Health and Human Resources shall promulgate rules pursuant to the provisions of §29A-3-1 et seq. of this code related to the grievance and appellate procedures referenced in this section.
(k) (l)
Nothing in this section may be construed to prohibit day report or community
correction programs, authorized pursuant to §62-11C-1 et seq. of this code, from
administering a comprehensive safety and treatment program pursuant to this
section.