hdj2003-03-08-60

__________*__________
Saturday, March 8, 2003

     The House of Delegates met at 10:00 a.m., and was called to order by the Speaker.
     Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
     The Clerk proceeded to read the Journal of Friday, March 7, 2003, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
     Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
     Your Committee on Rules has had under consideration:
     H. C. R. 34, Requesting the Committee on Government and Finance to conduct a study of adding wheelchair accessible ramps and covered walkways to the wings of the state capitol,
     And reports back a committee substitute therefor, with a new title, as follows:
     Com. Sub. for H. C. R. 34 - "Requesting the Department of Administration and the Capitol Building Commission determine the feasibility of enclosing both wings of the State Capitol for the purpose of providing easier wheelchair access and providing additional legislative office space,"
     With the recommendation that the committee substitute be adopted.
     Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
     Your Committee on Rules has had under consideration:
     S. C. R. 35, Relating to pension fund bonds,
     And reports the same back with the recommendation that it be adopted.
     Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
     Your Committee on Rules has had under consideration:
     H. C. R. 60, Requesting the Joint Committee on Government and Finance appoint an interim committee to study the feasibility of providing retirement programs for emergency medical system personnel, Division of Natural Resources conservation officers, Division of Juvenile Services employees,
     H. C. R. 80, Requesting the Joint Committee on Government and Finance to study the use, benefits and management of technology as it impacts the Legislature,
     H. C. R. 85, Directing the Joint Committee on Government and Finance to make a study on the changing role of school counseling and the potential impact of counselors on students in the public schools of the state,
     H. C. R. 87, Requesting the Division of Highways to name the proposed replacement bridge on 12 Pole Road at Breeden, Mingo Count, West Virginia, the "Woodrow Baisden Bridge",
     H. C. R. 88, Requesting the Joint Committee on Government and Finance to conduct a study to examine how the Legislature might operate more efficiently and effectively in representing the citizens by examining other state models of technology,
     H. C. R. 90, Naming the portion of U. S. 52 from Taylorville Bridge to the intersection of State Route 44 in Mingo County, the "R. A. West Memorial Highway",
     S. C. R. 45, Urging Congress provide additional funding from the Abandoned Mine Reclamation Fund to finance future water projects in West Virginia,
     S. C. R. 46, Requesting the Joint Committee on Government and Finance appoint an interim committee to review the current need for and feasibility of existing state legislative rules and federal regulations promulgated by the Office of Surface Mining Reclamation and Enforcement,
     S. C. R. 11, Requesting the Division of Highways name the new bridge on Route 5 near Elizabeth, Wirt County, the "World War II Veterans Memorial Bridge",
     H. C. R. 93, Requesting that the Joint Committee on Government and Finance study the feasibility of establishing a statewide trail coordinator to promote tourism and economic development throughout West Virginia,
     And,
     H. C. R. 95, Studying the annexation laws of the state of West Virginia and of the various states to develop responsible and fair annexation alternatives,
     And reports the same back with the recommendation that they each be adopted.
     Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
     Your Committee on the Judiciary has had under consideration:
     Com. Sub. for S. B. 475, Relating to rehabilitation and liquidation of insurers,
     And reports the same back, with amendment, with the recommendation that it do pass, as amended.
     Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
     Your Committee on the Judiciary has had under consideration:
     Com. Sub. for S. B. 51, Setting required and permitted uses of proceeds from charitable bingo and raffles,
     And reports the same back, with amendment, with the recommendation that it do pass, as amended, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.
     In the absence of objection, reference of the bill (Com. Sub. for S. B. 51) to the Committee on Finance was abrogated.
Messages from the Executive
     Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor, advising that on March 7, 2003, he approved Com. Sub. for H. B. 2359, S. B. 182, S. B. 415, S. B. 416, S. B. 418, S. B. 469 and S. B. 471.
     Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Youth Services and Comprehensive Plan Update for the West Virginia Department of Health and Human Services, in accordance with section seven, article five-b, chapter forty-nine of the code; which was filed in the Clerk's Office.
     Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Geological and Economic Survey in accordance with the provisions of the code; which was filed in the House Clerk's Office.
Messages from the Senate
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
     Com. Sub. for H. B. 2003, Allowing municipalities to self-insure together and promulgation of rules by the Commissioner of Insurance.
     On motion of Delegate Staton, the bill was taken up for immediate consideration.
     The following Senate amendments were reported by the Clerk:
     On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
     "That article twelve, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section fourteen, and that section sixteen, article twelve-a of said chapter be amended and reenacted, all to read as follows:
ARTICLE 12. STATE INSURANCE.
§29-12-14. Promulgation of rules.
     The board of risk and insurance management is authorized to propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine a of this code, that are necessary to administer the powers and duties of the board including, but not limited to, rules setting minimum contract terms for entities participating in insurance programs and mandatory waiting periods for reentry into insurance programs for entities which have terminated coverage through the board.
ARTICLE 12A. GOVERNMENTAL TORT CLAIMS AND INSURANCE REFORM ACT.
§29-12A-16. Procurement of liability insurance and self-insurance.
     (a) A political subdivision may use public funds to secure insurance with respect to its potential liability and that of its employees in for damages in civil actions for injury, death or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees, including insurance coverage procured through the state board of risk and insurance management. The insurance may be at the limits for the circumstances, and subject to the terms and conditions that are determined by the political subdivision in its discretion.
     The insurance may be for the period ~~of time~~ that is set forth in specifications for competitive bids or, when competitive bidding is not required, for the period ~~of time~~ that is mutually agreed upon by the political subdivision and insurance company. The period ~~of time~~ does not have to be, but can be, limited to the fiscal cycle under which the political subdivision is funded and operates.
     (b)(1) Regardless of whether a political subdivision procures a policy or policies of liability insurance pursuant to subsection (a) of this section or otherwise:
    (A) ~~the~~ Any political subdivision may establish and maintain a self-insurance program relative to its potential liability and that of its employees in for damages in civil actions for injury, death, or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees; or
    (B) Any group of two or more political subdivisions may establish and maintain a self- insurance pool relative to their collective potential liability and that of their collective employees for damages in civil actions for injury, death or loss to persons or property allegedly caused by an act or omission of the political subdivision or any of its employees.
_____(2) If it so chooses, the political subdivision or group of political subdivisions may contract with any person, any licensed West Virginia insurance agent, other political subdivision, municipal association, county association or regional council of governments for purposes of the administration of ~~such a~~ the program or pool.
     (c) Political subdivisions that have established self-insurance programs relative to their potential liability and that of their employees, as described in subdivision (A), subsection (b)(1) of this section, may mutually agree that their self-insurance programs ~~will~~ may be jointly administered in a specified manner.
     (d) The purchase of liability insurance, or the establishment and maintenance of a self- insurance program, by a political subdivision does not constitute a waiver of any immunity it may have pursuant to this article or any defense of the political subdivision or its employees.
     (e) The authorization for political subdivisions to secure insurance and to establish and maintain self-insurance programs and pools, as set out in subsections (a) and (b) in this section, are in addition to any other authority to secure insurance or to establish and maintain self-insurance that is granted pursuant to this code or the constitution of this state, and they are not in derogation of any other authorization.
     (f) An insurance agent licensed in West Virginia is authorized to establish or write policies for a self-insurance program or pool for political subdivisions, pursuant to the provisions of this section.
_____~~(f)~~ (g) The commissioner of insurance shall ~~promulgate legislative~~ propose rules for legislative approval, ~~or regulations~~ pursuant to the provisions of chapter twenty-nine-a of this code, setting forth ~~guidelines relating to self-insurance programs~~ the criteria for establishing and maintaining self-insurance programs and pools for political subdivisions."
     And,
     By amending the title of the bill to read as follows:
     Com. Sub. for H. B. 2003 - "A Bill to amend article twelve, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fourteen; and to amend and reenact section sixteen, article twelve-a of said chapter, all relating to authorizing political subdivisions to establish and maintain self-insurance pools; authorizing the board of risk and insurance management to propose rules dealing with insurance programs; authorizing West Virginia insurance agents to establish and write policies for self-insurance programs and pools; and requiring the insurance commissioner to propose legislative rules relating to self-insurance programs and pools for political subdivisions."
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
     The bill, as amended by the Senate, was then put upon its passage.
     On the passage of the bill, the yeas and nays were taken (Roll No. 482), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman, Hatfield and R. M. Thompson.
    So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2003) passed.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect July 1, 2003, a bill of the House of Delegates as follows:
     Com. Sub. for H. B. 2118, Adjusting the retirement benefits for all members of the West Virginia state police retirement system.
     On motion of Delegate Martin, the bill was taken up for immediate consideration.
     The following Senate amendment was reported by the Clerk:
     On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.

§15-2A-12. Awards and benefits to dependents of member - When member dies in performance of duty, etc.; dependent child scholarship and amount.

  The surviving spouse, the dependent child or children or dependent parent or parents of any member who has lost or ~~shall lose~~ loses his or her life by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members while the member was or ~~shall be~~ is engaged in the performance of his or her duties as a member of the division, or the survivor of a member who dies from any cause after having been retired pursuant to the provisions of section nine of this article, ~~shall be~~ is entitled to receive and shall be paid from the fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime, one or the other of two amounts, which shall become immediately available and which shall be the greater of:
  (1) An amount equal to ~~seven~~ nine tenths of the base salary received in the preceding twelve- month employment period by the deceased member: Provided, That if the member had not been employed with the division for twelve months prior to his or her death, the amount of monthly salary shall be annualized for the purpose of determining the benefit; or
  (2) The sum of ~~six~~ ten thousand dollars.
  In addition thereto, the surviving spouse ~~shall be~~ is entitled to receive and there shall be paid to ~~such~~ that person one hundred fifty dollars monthly for each dependent child or children. If the surviving spouse dies or if there is no surviving spouse, there shall be paid monthly to each dependent child or children from the fund a sum equal to one ~~fourth~~ third of the surviving spouse's entitlement. If there is no surviving spouse and no dependent child or children, there shall be paid annually in equal monthly installments from the fund to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is but one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive.
  Any person qualifying as a surviving dependent child under this section ~~shall~~ is, in addition to any other benefits due under this or other sections of this article, be entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding seven thousand five hundred dollars, shall be paid from the fund to any university or college in this state or to any trade or vocational school or other entity in this state approved by the board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the board on an approved form and under ~~such~~ any rules as the board ~~may provide~~ provides and maintains scholastic eligibility as defined by the institution or the board. The board may by appropriate rules define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section.
  Awards and benefits for a surviving spouse or dependents of a member received under any section or any of the provisions of this retirement system shall be in lieu of receipt of any benefits for these persons under the provisions of any other state retirement system. Receipt of benefits under any other state retirement system shall be in lieu of any right to receive any benefits under this retirement system, so that only a single receipt of state retirement benefits shall occur."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 483), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2118) passed.
  Delegate Staton moved that the bill take effect July 1, 2003.
  On this question, the yeas and nays were taken (Roll No. 484), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2118) takes effect July 1, 2003.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2126, Strengthening penalties relating to violations of fire laws and rules.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section four, article three-a of said chapter be amended and reenacted; and that article three, chapter sixty-one of said code be amended by adding thereto a new section, designated section five-a, all to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-12. Powers and duties of state fire marshal.
  (a) Enforcement of laws. -- The state fire marshal and any other person authorized to enforce the provisions of this article under the supervision and direction of the state fire marshal has the authority to enforce all laws of the state having to do with:
  (1) Prevention of fire;
  (2) The storage, sale and use of any explosive,
combustible or other dangerous article or articles in solid, flammable liquid or gas form;
  (3) The installation and maintenance of equipment of all sorts intended to extinguish, detect and control fires;
  (4) The means and adequacy of exit, in case of fire, from buildings and all other places in which persons work, live or congregate, from time to time, for any purpose, except buildings used wholly as dwelling houses for no more than two families;
  (5) The suppression of arson; and
  (6) Any other thing necessary to carry into effect the provisions of this article including, but not limited to, confiscating any materials, chemicals, items, or personal property owned, possessed or used in direct violation of the state fire code.
  (b) Assistance upon request. -- Upon request, the state fire marshal shall assist any chief of any recognized fire company or department. Upon the request of any federal law-enforcement officer, state police officer, conservation officer or any county or municipal law-enforcement officer, the state fire marshal, any deputy state fire marshal or assistant state fire marshal employed pursuant to section eleven of this article and any person deputized pursuant to subsection (j) of this section may assist in the lawful execution of the requesting officer's official duties: Provided, That the state fire marshal or other person authorized to act under this subsection shall at all times work under the direct supervision of the requesting officer.
  (c) Enforcement of rules. -- The state fire marshal shall enforce the rules promulgated by the state fire commission as authorized by this article.
  (d) Inspections generally. -- The state fire marshal shall inspect all structures and facilities, other than one- and two-family dwelling houses, subject to the state fire code and this article, including, but not limited to, state, county and municipally owned institutions, all public and private schools, health care facilities, theaters, churches and other places of public assembly to determine whether the structures or facilities are in compliance with the state fire code.
  (e) Right of entry. -- The state fire marshal may, at all reasonable hours, enter any building or premises, other than dwelling houses, for the purpose of making an inspection which he or she may consider necessary under the provisions of this article. The state fire marshal and any deputy state fire marshal or assistant state fire marshal approved by the state fire marshal may enter upon any property, or enter any building, structure or premises, including dwelling houses during construction and prior to occupancy, for the purpose of ascertaining compliance with the conditions set forth in any permit or license issued by the office of the state fire marshal pursuant to subdivision (1), subsection (a), section twelve-b of this article or of article three-b of this chapter.
  (f) Investigations. -- The state fire marshal may, at any time, investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire or explosion occurring in the state. The state fire marshal has the authority at all times of the day or night, in performance of the duties imposed by the provisions of this article, to investigate where any fires or explosions or attempt to cause fires or explosions may have occurred, or which at the time may be burning. Notwithstanding the above provisions of this subsection, prior to entering any building or premises for the purposes of ~~such~~ the investigation, the state fire marshal shall obtain a proper search warrant: Provided, That a search warrant is not necessary where there is permissive waiver or the state fire marshal is an invitee of the individual having legal custody and control of the property, building or premises to be searched.
  (g) Testimony. -- The state fire marshal, in making an inspection or investigation when in his or her judgment ~~such~~ ~~proceedings are~~ it is necessary, may take the statements or testimony under oath of all persons who may be cognizant of any facts or have any knowledge about the matter to be examined and inquired into and may have the statements or testimony reduced to writing; and shall transmit a copy of ~~such~~ the statements or testimony so taken to the prosecuting attorney for the county ~~wherein~~ where the fire or explosion or attempt to cause a fire or explosion occurred. Notwithstanding the above, no person may be compelled to testify or give ~~any such~~ a statement under this subsection.
  (h) Arrests; warrants. -- The state fire marshal, any full-time deputy fire marshal or any full- time assistant fire marshal employed by the state fire marshal pursuant to section eleven of this article is ~~hereby~~ authorized: and empowered and any person deputized pursuant to subsection(j) of this section may be authorized and empowered by the state fire marshal:
  (1) To arrest any person anywhere ~~within~~ in the confines of the state of West Virginia, or have him or her arrested, for any violation of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter: Provided, That any and all persons so arrested shall be forthwith brought before the magistrate or circuit court.
  (2) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute an arrest warrant when knowing or having reason to believe that anyone has committed an offense under any provision of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over ~~such~~ the violation.
  (3) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute a warrant for the search of any premises that may possess evidence or unlawful contraband relating to violations of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all search warrants before the tribunal having jurisdiction over ~~such~~ the violation.
  (i) Witnesses and oaths. -- The state fire marshal ~~is empowered and authorized to~~ may issue subpoenas and subpoenas duces tecum to compel the attendance of persons before him or her to testify in relation to any matter which is, by the provision of this article, a subject of inquiry and investigation by the state fire marshal and cause to be produced before him or her ~~such~~ papers ~~as he or she may require~~ that he or she requires in making ~~such~~ the examination. The state fire marshal is ~~hereby~~ authorized to administer oaths and affirmations to persons appearing as witnesses before him or her. False swearing in ~~any matter or proceeding aforesaid shall be considered~~ these inquiries or investigations is perjury and ~~shall be~~ is punishable as ~~such~~ perjury.
  (j) Deputizing members of fire departments in this state. -- The state fire marshal may deputize a member of any fire department, duly organized and operating in this state, who is approved by the chief of his or her department and who is properly qualified to act as his or her assistant for the purpose of making inspections with the consent of the property owner or the person in control of the property and ~~such~~ the investigations as ~~may be~~ directed by the state fire marshal, and the carrying out of ~~such~~ other orders ~~as may be~~ prescribed by him or her, to enforce and make effective the provisions of this article and any and all rules promulgated by the state fire commission under authority of this article: Provided, That in the case of a volunteer fire department, only the chief ~~thereof or his or her~~ of the department or the chief's single designated assistant may be so deputized.
  (k) Written report of examinations. -- The state fire marshal shall, at the request of the county commission of any county or the municipal authorities of any incorporated municipality in this state, make to them a written report of the examination made by him or her regarding any fire happening within their respective jurisdictions.
  (l) Report of losses by insurance companies. -- It is the duty of each fire insurance company or association doing business in this state, within ten days after the adjustment of any loss sustained by it that exceeds fifteen hundred dollars, to report to the state fire marshal information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted. This report is in addition to any ~~such~~ other information required by the state insurance commissioner. Upon the request of the owner or insurer of any property destroyed or injured by fire or explosion, or in which an attempt to cause a fire or explosion may have occurred, the state fire marshal shall report in writing to the owner or insurer the result of the examination regarding the property.
  (m) Issuance of permits and licenses. -- The state fire marshal is authorized to issue permits, documents and licenses in accordance with the provisions of this article or of article three-b of this chapter. The state fire marshal may require any person who applies for a permit to use explosives, other than an applicant for a license to be a pyrotechnic operator under section twenty-four of this article, to be fingerprinted and to authorize the state fire marshal to conduct a criminal records check through the criminal identification bureau of the West Virginia state police and a national criminal history check through the federal bureau of investigation. The results of any criminal records or criminal history check shall be sent to the state fire marshal.
  (n) Issuance of citations for fire and life safety violations. -- The state fire marshal, any deputy fire marshal and any assistant fire marshal employed pursuant to section eleven of this article are ~~hereby~~ authorized, and any person deputized pursuant to subsection (j) of this section may be authorized by the state fire marshal to issue citations, in his or her jurisdiction, for fire and life safety violations of the state fire code and as provided for by the rules promulgated by the state fire commission in accordance with article three, chapter twenty-nine-a of this code: Provided, That a summary report of all citations issued pursuant to this section by persons deputized under subsection (j) of this section shall be forwarded monthly to the state fire marshal in ~~such~~ the form and containing information as he or she may by rule require, including the violation for which the citation was issued, the date of issuance, the name of the person issuing the citation and the person to whom the citation was issued. The state fire marshal may at any time revoke the authorization of a person deputized pursuant to subsection (j) of this section to issue citations, if in the opinion of the state fire marshal, the exercise of authority by the person is inappropriate. Violations for which citations may be issued include, but are not limited to:
  (1) Overcrowding places of public assembly;
  (2) Locked or blocked exits in public areas;
  (3) Failure to abate a fire hazard;
  (4) Blocking of fire lanes or fire department connections; and
  (5) Tampering with, or rendering inoperable except during necessary maintenance or repairs, on-premise fire-fighting equipment, fire detection equipment and fire alarm systems.
  (o) Required training; liability coverage. -- No person deputized pursuant to subsection (j) of this section may be authorized to issue a citation unless that person has satisfactorily completed a law-enforcement officer training course designed specifically for fire marshals. The course shall be approved by the law-enforcement training subcommittee of the governor's committee on criminal justice and highway safety and the state fire commission. In addition, no person deputized pursuant to subsection (j) of this section may be authorized to issue a citation until evidence of liability coverage of ~~such~~ the person has been provided, in the case of a paid municipal fire department by the municipality ~~wherein~~ where the fire department is located, or in the case of a volunteer fire department, by the county commission of the county ~~wherein~~ where the fire department is located or by the municipality served by the volunteer fire department and that evidence of liability coverage has been filed with the state fire marshal.
  (p) Penalties for violations. -- Any person who violates any fire and life safety rule of the state fire code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or ~~imprisoned~~ confined in the county or regional jail not more than ninety days, or both fined and ~~imprisoned~~ confined. Each and every day during which any violation of the provisions of this article continues after knowledge or official notice that same is illegal is a separate offense.

§29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units; penalty.

  (a) ~~On or before the first day of July, one thousand nine hundred ninety-one,~~ An operational smoke detector shall be installed in the immediate vicinity of each sleeping area within all one- and two-family dwellings, including any "manufactured home" as that term is defined in subsection (j), section two, article nine, chapter twenty-one of this code. The smoke detector shall be capable of sensing visible or invisible particles of combustion and shall meet the specifications and be installed as provided in the national fire protection association standard 72, 'Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment', ~~1996~~ 1999 edition, and in the manufacturer's specifications. When activated, the smoke detector shall provide an alarm suitable to warn the occupants of the danger of fire.
  (b) The owner of each dwelling described in subsection (a) of this section shall provide, install and replace the operational smoke detectors required by this section. So as to assure that the smoke detector continues to be operational, in each dwelling described in subsection (a) of this section which is not occupied by ~~the~~ its owner ~~thereof~~, the tenant in any dwelling shall perform routine maintenance on the smoke detectors within the dwelling.
  (c) Where a dwelling is not occupied by the owner and is occupied by an individual who is deaf or hearing impaired, the owner shall, upon written request by or on behalf of the individual, provide and install a smoke detector with a light signal sufficient to warn the deaf or hearing- impaired individual of the danger of fire.
  (d) An automatic fire sprinkler system installed in accordance with the national fire protection association standard 13D, 'Standard for the Installation of Sprinkler Systems in Residential Occupancies', ~~1989~~ 1999 edition, may be provided in lieu of smoke detectors.
  (e) After investigating a fire in any dwelling described in subsection (a) of this section, the local investigating authority shall issue to the owner a smoke detector installation order in the absence of the required smoke detectors.
  (f) ~~After the first day of July, one thousand nine hundred ninety-eight,~~ An operational carbon monoxide detector with a suitable alarm shall be installed in accordance with the manufacturer's direction:
  (1) In any newly constructed residential unit which has a fuel-burning heating or cooking source including, but not limited to, an oil or gas furnace or stove; and
  (2) In any residential unit which is connected to a newly constructed building, including, but not limited to, a garage, storage shed or bar, which has a fuel-burning heating or cooking source, including, but not limited to, an oil or gas furnace or stove.
  (g) Any person installing a carbon monoxide detector in a residential unit shall inform the owner, lessor or the occupant or occupants of the residential unit of the dangers of carbon monoxide poisoning and instructions on the operation of the carbon monoxide detector installed.
  (h) When repair or maintenance work is undertaken on a fuel-burning heating or cooking source or a venting system in an existing residential unit, the person making the repair or performing the maintenance shall inform the owner, lessor or the occupant or occupants of the unit being served by the fuel-burning heating or cooking source or venting system of the dangers of carbon monoxide poisoning and recommend the installation of a carbon monoxide detector.
  (i) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than ~~fifty~~ one hundred dollars nor more than one ~~hundred~~ thousand dollars.
  (j) A violation of this section ~~may not be considered by virtue of the violation to constitute~~ is not evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.
  (k) A violation of this section ~~may not constitute~~ is not a defense in any civil action or proceeding involving any insurance policy.
  (l) Nothing in this section ~~shall be construed to limit~~ limits the rights of any political subdivision in this state to enact laws imposing upon owners of any dwelling or other building described in subsection (a) or (f) of this section a greater duty with regard to the installation, repair and replacement of the smoke detectors or carbon monoxide detectors than is required by this section.
§29-3-27. Penalties.
  (a) Any person who violates any ~~regulations~~ rule promulgated by the state fire commission as provided in section five of this article, ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one ~~hundred~~ thousand dollars or ~~imprisoned~~ confined in ~~the~~ a county or regional jail not more than ninety days, or both fined and ~~imprisoned~~ confined.
  Each and every day during which any illegal erection, construction, reconstruction, alteration, maintenance or use continues after knowledge or official notice that same is illegal ~~shall be deemed~~ is a separate offense.
  (b) Any person who violates the provisions of section twenty- one of this article ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined for a first offense not less than one hundred dollars nor more than one ~~hundred~~ thousand dollars or ~~imprisoned~~ confined in ~~the~~ a county or regional jail for not more than thirty days, or both fined and ~~imprisoned~~ confined, and for a second and each subsequent offense fined not less than ~~one~~ five hundred dollars nor more than ~~five hundred~~ one thousand dollars or ~~imprisoned~~ confined in ~~the~~ a county or regional jail for not less than ninety days nor more than one year, or both fined and ~~imprisoned~~ confined.
  (c) Any officer who ~~shall fail~~ fails to perform any duty required of him or her by this article or who ~~shall violate~~ violates any of its provisions ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than ~~twenty-five~~ one hundred dollars nor more than ~~fifty~~ one thousand dollars for each failure or violation.
  (d) Any person who violates any other provision of this article ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one ~~hundred~~ thousand dollars, or ~~imprisoned~~ confined in ~~the~~ a county or regional jail not more than ninety days, or both fined and ~~imprisoned~~ confined.
ARTICLE 3A. AUTHORITY OF LOCAL FIRE DEPARTMENTS.

§29-3A-4. Person attacking or hindering or obstructing firefighter or emergency equipment; penalties.

  (a) It is unlawful, while any fire department or company or firefighter is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, for any person to:
  (1) Attack any firefighter or any of his or her equipment with any deadly weapon as defined in section two, article seven, chapter sixty-one of this code; or
  (2) Intentionally hinder, obstruct, oppose, or attempt to hinder, obstruct or oppose, or counsel, advise or invite others to hinder, obstruct or oppose, any fire department, fire company or firefighter.
  (b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than ten years, or, in the discretion of the court, be confined in the regional or county jail not more than one year or fined not less than five hundred dollars nor more than ~~five hundred~~ one thousand dollars, or both.
  (c) Any person willfully violating any of the provisions of section one or three of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than ~~five hundred~~ one thousand dollars.
  (d) Nothing in this article ~~shall be construed to prevent~~ prevents law-enforcement officials from controlling traffic and otherwise maintaining order at the scene of a fire.
  (e) No person may willfully fail or refuse to comply with a lawful order or direction of any fire department or company or firefighter who is lawfully exercising or discharging the department's, company's or firefighter's official duty during an emergency, relating to directing, controlling or regulating traffic, so long as such order or direction is conveyed by a retro-reflective hand signing device. Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof: (1) For a first offense shall be fined not less than one hundred dollars nor more than one ~~hundred~~ thousand dollars; (2) for a second offense occurring within one year of a previous conviction shall be fined not less than ~~two~~ three hundred nor more than one thousand dollars; and (3) for a third and subsequent offense shall be fined not less than five hundred nor more than ~~five hundred~~ one thousand dollars or confined in a county jail or a regional jail for not less than ninety days nor more than one year or both fined and confined.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-5a. Burning personal property of another of the value of five hundred dollars or less; fifth degree arson; penalty.

  Any person who knowingly and intentionally sets fire to or burns, or who causes to be burned, or who aids, counsels, procures, persuades, incites, entices or solicits any person to burn, any personal property of any class or character of the value of less than five hundred dollars, and the property of another person, shall be guilty of arson in the fifth degree and, upon conviction thereof, be confined in a county or regional jail for not less than thirty days or more than one year, fined no less than one hundred dollars nor more than one thousand dollars, or both."
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2126 - "A Bill to amend and reenact sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article three-a of said chapter; and to amend article three, chapter sixty-one of said code by adding thereto a new section, designated section five-a, all relating to violations of fire laws and rules; increasing penalties; providing for increased criminal penalties; and providing criminal penalty under certain circumstances for persons involved in setting fires to the property of others or in public rights-of- way."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section four, article three-a of said chapter be amended and reenacted; and that article three, chapter sixty-one of said code be amended by adding thereto a new section, designated section five-a, all to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-12. Powers and duties of state fire marshal.
  (a) Enforcement of laws. -- The state fire marshal and any other person authorized to enforce the provisions of this article under the supervision and direction of the state fire marshal has the authority to enforce all laws of the state having to do with:
  (1) Prevention of fire;
  (2) The storage, sale and use of any explosive, combustible or other dangerous article or articles in solid, flammable liquid or gas form;
  (3) The installation and maintenance of equipment of all sorts intended to extinguish, detect and control fires;
  (4) The means and adequacy of exit, in case of fire, from buildings and all other places in which persons work, live or congregate, from time to time, for any purpose, except buildings used wholly as dwelling houses for no more than two families;
  (5) The suppression of arson; and
  (6) Any other thing necessary to carry into effect the provisions of this article including, but not limited to, confiscating any materials, chemicals, items, or personal property owned, possessed or used in direct violation of the state fire code.
  (b) Assistance upon request. -- Upon request, the state fire marshal shall assist any chief of any recognized fire company or department. Upon the request of any federal law-enforcement officer, state police officer, conservation officer or any county or municipal law-enforcement officer, the state fire marshal, any deputy state fire marshal or assistant state fire marshal employed pursuant to section eleven of this article and any person deputized pursuant to subsection (j) of this section may assist in the lawful execution of the requesting officer's official duties: Provided, That the state fire marshal or other person authorized to act under this subsection shall at all times work under the direct supervision of the requesting officer.
  (c) Enforcement of rules. -- The state fire marshal shall enforce the rules promulgated by the state fire commission as authorized by this article.
  (d) Inspections generally. -- The state fire marshal shall inspect all structures and facilities, other than one- and two-family dwelling houses, subject to the state fire code and this article, including, but not limited to, state, county and municipally owned institutions, all public and private schools, health care facilities, theaters, churches and other places of public assembly to determine whether the structures or facilities are in compliance with the state fire code.
  (e) Right of entry. -- The state fire marshal may, at all reasonable hours, enter any building or premises, other than dwelling houses, for the purpose of making an inspection which he or she may consider necessary under the provisions of this article. The state fire marshal and any deputy state fire marshal or assistant state fire marshal approved by the state fire marshal may enter upon any property, or enter any building, structure or premises, including dwelling houses during construction and prior to occupancy, for the purpose of ascertaining compliance with the conditions set forth in any permit or license issued by the office of the state fire marshal pursuant to subdivision (1), subsection (a), section twelve-b of this article or of article three-b of this chapter.
  (f) Investigations. -- The state fire marshal may, at any time, investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire or explosion occurring in the state. The state fire marshal has the authority at all times of the day or night, in performance of the duties imposed by the provisions of this article, to investigate where any fires or explosions or attempt to cause fires or explosions may have occurred, or which at the time may be burning. Notwithstanding the above provisions of this subsection, prior to entering any building or premises for the purposes of ~~such~~ the investigation, the state fire marshal shall obtain a proper search warrant: Provided, That a search warrant is not necessary where there is permissive waiver or the state fire marshal is an invitee of the individual having legal custody and control of the property, building or premises to be searched.
  (g) Testimony. -- The state fire marshal, in making an inspection or investigation when in his or her judgment ~~such~~ ~~proceedings are~~ it is necessary, may take the statements or testimony under oath of all persons who may be cognizant of any facts or have any knowledge about the matter to be examined and inquired into and may have the statements or testimony reduced to writing; and shall transmit a copy of ~~such~~ the statements or testimony so taken to the prosecuting attorney for the county ~~wherein~~ where the fire or explosion or attempt to cause a fire or explosion occurred. Notwithstanding the above, no person may be compelled to testify or give ~~any such~~ a statement under this subsection.
  (h) Arrests; warrants. -- The state fire marshal, any full-time deputy fire marshal or any full- time assistant fire marshal employed by the state fire marshal pursuant to section eleven of this article is ~~hereby~~ authorized: and empowered and any person deputized pursuant to subsection (j) of this section may be authorized and empowered by the state fire marshal:
  (1) To arrest any person anywhere ~~within~~ in the confines of the state of West Virginia, or have him or her arrested, for any violation of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter: Provided, That any and all persons so arrested shall be forthwith brought before the magistrate or circuit court.
  (2) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute an arrest warrant when knowing or having reason to believe that anyone has committed an offense under any provision of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all arrest warrants before the tribunal having jurisdiction over ~~such~~ the violation.
  (3) To make complaint in writing before any court or officer having jurisdiction and obtain, serve and execute a warrant for the search of any premises that may possess evidence or unlawful contraband relating to violations of this article, of the arson-related offenses of article three, chapter sixty-one of this code or of the explosives-related offenses of article three-e of said chapter. Proper return shall be made on all search warrants before the tribunal having jurisdiction over ~~such~~ the violation.
  (i) Witnesses and oaths. -- The state fire marshal ~~is empowered and authorized to~~ may issue subpoenas and subpoenas duces tecum to compel the attendance of persons before him or her to testify in relation to any matter which is, by the provision of this article, a subject of inquiry and investigation by the state fire marshal and cause to be produced before him or her ~~such~~ papers ~~as he or she may require~~ that he or she requires in making ~~such~~ the examination. The state fire marshal is ~~hereby~~ authorized to administer oaths and affirmations to persons appearing as witnesses before him or her. False swearing in ~~any matter or proceeding aforesaid shall be considered~~ these inquiries or investigations is perjury and ~~shall be~~ is punishable as ~~such~~ perjury.
  (j) Deputizing members of fire departments in this state. -- The state fire marshal may deputize a member of any fire department, duly organized and operating in this state, who is approved by the chief of his or her department and who is properly qualified to act as his or her assistant for the purpose of making inspections with the consent of the property owner or the person in control of the property and ~~such~~ the investigations as ~~may be~~ directed by the state fire marshal, and the carrying out of ~~such~~ other orders ~~as may be~~ prescribed by him or her, to enforce and make effective the provisions of this article and any and all rules promulgated by the state fire commission under authority of this article: Provided, That in the case of a volunteer fire department, only the chief ~~thereof or his or her~~ of the department or the chief's single designated assistant may be so deputized.
  (k) Written report of examinations. -- The state fire marshal shall, at the request of the county commission of any county or the municipal authorities of any incorporated municipality in this state, make to them a written report of the examination made by him or her regarding any fire happening within their respective jurisdictions.
  (l) Report of losses by insurance companies. -- It is the duty of each fire insurance company or association doing business in this state, within ten days after the adjustment of any loss sustained by it that exceeds fifteen hundred dollars, to report to the state fire marshal information regarding the amount of insurance, the value of the property insured and the amount of claim as adjusted. This report is in addition to any ~~such~~ other information required by the state insurance commissioner. Upon the request of the owner or insurer of any property destroyed or injured by fire or explosion, or in which an attempt to cause a fire or explosion may have occurred, the state fire marshal shall report in writing to the owner or insurer the result of the examination regarding the property.
  (m) Issuance of permits and licenses. -- The state fire marshal is authorized to issue permits, documents and licenses in accordance with the provisions of this article or of article three-b of this chapter. The state fire marshal may require any person who applies for a permit to use explosives, other than an applicant for a license to be a pyrotechnic operator under section twenty-four of this article, to be fingerprinted and to authorize the state fire marshal to conduct a criminal records check through the criminal identification bureau of the West Virginia state police and a national criminal history check through the federal bureau of investigation. The results of any criminal records or criminal history check shall be sent to the state fire marshal.
  (n) Issuance of citations for fire and life safety violations. -- The state fire marshal, any deputy fire marshal and any assistant fire marshal employed pursuant to section eleven of this article are ~~hereby~~ authorized, and any person deputized pursuant to subsection (j) of this section may be authorized by the state fire marshal to issue citations, in his or her jurisdiction, for fire and life safety violations of the state fire code and as provided for by the rules promulgated by the state fire commission in accordance with article three, chapter twenty-nine-a of this code: Provided, That a summary report of all citations issued pursuant to this section by persons deputized under subsection (j) of this section shall be forwarded monthly to the state fire marshal in ~~such~~ the form and containing information as he or she may by rule require, including the violation for which the citation was issued, the date of issuance, the name of the person issuing the citation and the person to whom the citation was issued. The state fire marshal may at any time revoke the authorization of a person deputized pursuant to subsection (j) of this section to issue citations, if in the opinion of the state fire marshal, the exercise of authority by the person is inappropriate.
  Violations for which citations may be issued include, but are not limited to:
  (1) Overcrowding places of public assembly;
  (2) Locked or blocked exits in public areas;
  (3) Failure to abate a fire hazard;
  (4) Blocking of fire lanes or fire department connections; and
  (5) Tampering with, or rendering inoperable except during necessary maintenance or repairs, on-premise fire-fighting equipment, fire detection equipment and fire alarm systems.
  (o) Required training; liability coverage. -- No person deputized pursuant to subsection (j) of this section may be authorized to issue a citation unless that person has satisfactorily completed a law-enforcement officer training course designed specifically for fire marshals. The course shall be approved by the law-enforcement training subcommittee of the governor's committee on criminal justice and highway safety and the state fire commission. In addition, no person deputized pursuant to subsection (j) of this section may be authorized to issue a citation until evidence of liability coverage of ~~such~~ the person has been provided, in the case of a paid municipal fire department by the municipality ~~wherein~~ where the fire department is located, or in the case of a volunteer fire department, by the county commission of the county ~~wherein~~ where the fire department is located or by the municipality served by the volunteer fire department and that evidence of liability coverage has been filed with the state fire marshal.
  (p) Penalties for violations. -- Any person who violates any fire and life safety rule of the state fire code is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or ~~imprisoned~~ confined in the county or regional jail not more than ninety days, or both fined and ~~imprisoned~~ confined.
  Each and every day during which any violation of the provisions of this article continues after knowledge or official notice that same is illegal is a separate offense.

§29-3-16a. Smoke detectors in one- and two-family dwellings; carbon monoxide detectors in residential units; penalty.

  (a) ~~On or before the first day of July, one thousand nine hundred ninety-one,~~ An operational smoke detector shall be installed in the immediate vicinity of each sleeping area within all one- and two-family dwellings, including any 'manufactured home' as that term is defined in subsection (j), section two, article nine, chapter twenty-one of this code. The smoke detector shall be capable of sensing visible or invisible particles of combustion and shall meet the specifications and be installed as provided in the national fire protection association standard 72, 'Standard for the Installation, Maintenance and Use of Household Fire Warning Equipment', ~~1996~~ 1999 edition, and in the manufacturer's specifications. When activated, the smoke detector shall provide an alarm suitable to warn the occupants of the danger of fire.
  (b) The owner of each dwelling described in subsection (a) of this section shall provide, install and replace the operational smoke detectors required by this section. So as to assure that the smoke detector continues to be operational, in each dwelling described in subsection (a) of this section which is not occupied by ~~the~~ its owner ~~thereof~~, the tenant in any dwelling shall perform routine maintenance on the smoke detectors within the dwelling.
  (c) Where a dwelling is not occupied by the owner and is occupied by an individual who is deaf or hearing impaired, the owner shall, upon written request by or on behalf of the individual, provide and install a smoke detector with a light signal sufficient to warn the deaf or hearing- impaired individual of the danger of fire.
  (d) An automatic fire sprinkler system installed in accordance with the national fire protection association standard 13D, 'Standard for the Installation of Sprinkler Systems in Residential Occupancies', ~~1989~~ 1999 edition, may be provided in lieu of smoke detectors.
  (e) After investigating a fire in any dwelling described in subsection (a) of this section, the local investigating authority shall issue to the owner a smoke detector installation order in the absence of the required smoke detectors.
  (f) ~~After the first day of July, one thousand nine hundred ninety-eight,~~ An operational carbon monoxide detector with a suitable alarm shall be installed in accordance with the manufacturer's direction:
  (1) In any newly constructed residential unit which has a fuel-burning heating or cooking source including, but not limited to, an oil or gas furnace or stove; and
  (2) In any residential unit which is connected to a newly constructed building, including, but not limited to, a garage, storage shed or bar, which has a fuel-burning heating or cooking source, including, but not limited to, an oil or gas furnace or stove.
  (g) Any person installing a carbon monoxide detector in a residential unit shall inform the owner, lessor or the occupant or occupants of the residential unit of the dangers of carbon monoxide poisoning and instructions on the operation of the carbon monoxide detector installed.
  (h) When repair or maintenance work is undertaken on a fuel-burning heating or cooking source or a venting system in an existing residential unit, the person making the repair or performing the maintenance shall inform the owner, lessor or the occupant or occupants of the unit being served by the fuel-burning heating or cooking source or venting system of the dangers of carbon monoxide poisoning and recommend the installation of a carbon monoxide detector.
  (i) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than ~~fifty~~ one hundred dollars nor more than one ~~hundred~~ thousand dollars.
  (j) A violation of this section ~~may not be considered by virtue of the violation to constitute~~ is not evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages.
  (k) A violation of this section ~~may not constitute~~ is not a defense in any civil action or proceeding involving any insurance policy.
  (l) Nothing in this section ~~shall be construed to limit~~ limits the rights of any political subdivision in this state to enact laws imposing upon owners of any dwelling or other building described in subsection (a) or (f) of this section a greater duty with regard to the installation, repair and replacement of the smoke detectors or carbon monoxide detectors than is required by this section. §29-3-27. Penalties.
  (a) Any person who violates any ~~regulations~~ rule promulgated by the state fire commission as provided in section five of this article, ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one ~~hundred~~ thousand dollars or ~~imprisoned~~ confined in ~~the~~ a county or regional jail not more than ninety days, or both fined and ~~imprisoned~~ confined.
  Each and every day during which any illegal erection, construction, reconstruction, alteration, maintenance or use continues after knowledge or official notice that same is illegal ~~shall be deemed~~ is a separate offense.
  (b) Except as provided by the provisions of subsection (c) of this section, any ~~Any~~ person who violates the provisions of section twenty- one of this article ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined for a first offense not less than one hundred dollars nor more than one ~~hundred~~ thousand dollars or ~~imprisoned~~ confined in ~~the~~ a county or regional jail for not more than thirty days, or both fined and ~~imprisoned~~ confined, and for a second and each subsequent offense fined not less than ~~one~~ five hundred dollars nor more than ~~five hundred~~ one thousand dollars or ~~imprisoned~~ confined in ~~the~~ a county or regional jail for not less than ninety days nor more than one year, or both fined and ~~imprisoned~~ confined.
__(c) Any person who violates the provisions of section twenty-one of this article with the intent to cause injury to the person of another, to cause destruction of the property of another or to divert the attention of law enforcement or fire personnel to help effectuate the commission of another crime shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one nor more than three years, or fined not more than five thousand dollars, or both.
__~~(c)~~ (d) Any officer who ~~shall fail~~ fails to perform any duty required of him or her by this article or who ~~shall violate~~ violates any of its provisions ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than ~~twenty-five~~ one hundred dollars nor more than ~~fifty~~ one thousand dollars for each failure or violation.
  ~~(d)~~ (e) Any person who violates any other provision of this article ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one ~~hundred~~ thousand dollars, or ~~imprisoned~~ confined in ~~the~~ a county or regional jail not more than ninety days, or both fined and ~~imprisoned~~ confined.
ARTICLE 3A. AUTHORITY OF LOCAL FIRE DEPARTMENTS.

§29-3A-4. Person attacking or hindering or obstructing firefighter or emergency equipment; penalties.

§61-3-5a. Burning personal property of another of the value of five hundred dollars or less; fifth degree arson; penalty.

ARTICLE 16. COLLECTION AGENCIES.

§47-16-2. Definitions.

  The following words and terms as used in this article shall be construed as follows:
  (a) 'Claim' means any obligation for the payment of money due or asserted to be due to another person, firm, corporation or association.
  (b) 'Collection agency' means and includes all persons, firms, corporations and associations: (1) Directly or indirectly engaged in the business of soliciting from or collecting for others any account, bill or indebtedness originally due or asserted to be owed or due another and all persons, firms, corporations and associations directly or indirectly engaged in asserting, enforcing or prosecuting those claims; (2) which, in attempting to collect or in collecting his or her or its own accounts or claims uses a fictitious name or names other than his or her or its own name; (3) which attempts to or does give away or sell to others any system or series of letters or forms for use in the collection of accounts or claims which assert or indicate directly or indirectly that the claims or accounts are being asserted or collected by any person, firm, corporation or association other than the creditor or owner of the claim or account; or (4) directly or indirectly engaged in the business of soliciting, or who holds himself or herself out as engaged in the business of soliciting, debts of any kind owed or due, or asserted to be owed or due, to any solicited person, firm, corporation or association for fee, commission or other compensation.
  The term 'collection agency' shall not mean or include: (1) Regular employees of a single creditor or of a collection agency licensed hereunder; (2) banks; (3) trust companies; (4) savings and loan associations; (5) building and loan associations; (6) industrial loan companies; (7) small loan companies; (8) abstract companies doing an escrow business; (9) duly licensed real estate brokers or agents when the claims or accounts being handled by such broker or agent are related to or in connection with such brokers' or agents' regular real estate business; (10) express and telegraph companies subject to public regulation and supervision; (11) attorneys-at-law handling claims and collections in their own names and not operating a collection agency under the management of a layman; or (12) any person, firm, corporation or association acting under the order of any court of competent jurisdiction; or (13) any person collecting a debt owed to another person only where: (A) Both persons are related by wholly-owned, common ownership or affiliated by wholly-owned corporate control; (B) the person collecting the debt acts only on behalf of persons related as described in paragraph (A) of this subdivision; and (C) debt collection is not the principal business of the person collecting the debt.
  (c) 'Commissioner' means the state tax commissioner or his or her agent.
  (d) 'Customer' means any person, firm, corporation or association who has filed, assigned or sold any claim or chose in action with or to a collection agency for collection.
  (e) 'Licensee' means any person holding a business franchise registration certificate under section two, article twelve, chapter eleven of this code and under the provisions of this article.
  (f) 'Trust account' means a special account established by a collection agency with a banking institution in this state, wherein funds collected on behalf of a customer shall be deposited."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 486), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2239) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2240, Allowing persons purchasing or renewing hunting or fishing licenses to donate to the "hunters helping the hungry program".
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page nine, section thirty-four, following line forty-three, by adding a new section, designated section forty-three, to read as follows:
"§20-2-43. Class E, Class EE, Class F, Class H and Class J licenses for nonresidents.
  The licenses in this section ~~shall be~~ are required of nonresidents to hunt, trap or fish in West Virginia.
  (1) A Class E license ~~shall be~~ is a nonresident hunting and trapping license and ~~shall entitle~~ entitles the licensee to hunt or trap all legal species of wild animals and wild birds in all counties of the state except when other licenses or permits are required. The fee ~~therefor shall be~~ for the license is one hundred dollars.
  (2) A Class EE license ~~shall be~~ is a nonresident bear hunting license and ~~shall entitle~~ entitles the licensee to hunt bear in all counties of the state, except when additional licenses or permits are required. The fee ~~therefor shall be~~ for the license is one hundred fifty dollars.
  (3) A Class F license ~~shall be~~ is a nonresident fishing license and ~~shall entitle~~ entitles the licensee to fish for all fish in all counties of the state except when additional licenses or permits are required. The fee ~~therefor shall be~~ for the license is thirty dollars. Trout fishing is not permitted with a Class F license unless ~~such~~ the license has affixed ~~thereto~~ to it an appropriate trout stamp as prescribed by the division of natural resources.
  (4) A Class H license ~~shall be~~ is a nonresident small game hunting license and ~~shall entitle~~ entitles the licensee to hunt small game in all counties of the state, except when additional licenses or permits are required, for a period of six days beginning with the date it is issued.
  The fee ~~therefor shall be~~ for the license is twenty dollars. As used in this section, 'small game' means all game except bear, deer, wild turkey and wild boar.
  (5) A Class J license is a nonresident small game shooting preserve license and entitles the licensee to hunt small game on designated shooting preserves, except when additional licenses or permits are required, for a period of six days beginning with the date it is issued. The fee for the license is ten dollars."
  On page two, by amending the enacting section to read as follows:
  "That sections thirty, thirty-three, thirty-four and forty-three, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section thirty-three-a, all to read as follows" followed by a colon.
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2240 - "A Bill to amend and reenact sections thirty, thirty-three, thirty- four and forty-three, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section thirty-three-a, all relating generally to hunting and fishing license applications and fees; statement of eligibility for license; false statement; electronic application for license to apprise applicant of hunters helping the hungry program; voluntary donations; creating sub-account designated 'hunters helping the hungry fund'; authorized expenditures; establishing a Class J license for small game preserves; and technical amendments."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 487), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Renner.
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2240) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  H. B. 2670, Continuing the office of judges until July 1, 2009.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page two, section seventeen, line four, by striking out the word "nine" and inserting in lieu thereof the word "four" and a comma.
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 488), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2670) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  H. B. 2797, Authorizing the DMV to reimburse members of the motor vehicle dealer advisory board and the motorcycle safety awareness board for necessary expenses.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION, CERTIFICATE OF TITLE, AND ANTI-THEFT PROVISIONS.
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS; SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.

§17A-6-18a. Motor vehicle dealers advisory board.
  (a) There is ~~created~~ continued a motor vehicle dealers advisory board to assist and to advise the commissioner on the administration of laws regulating the motor vehicle industry; to work with the commissioner in developing new laws, rules or policies regarding the motor vehicle industry; and to give the commissioner ~~such~~ any further advice and assistance as he or she may from time to time require.
  The board shall consist of nine members and the commissioner of motor vehicles, or his or her representative, who shall be an ex-officio member. Two members shall represent new motor vehicle dealers, with one of these two members representing dealers that sell less than one hundred new vehicles per year; one member shall represent used motor vehicle dealers; one member shall represent wrecker/dismantler/rebuilders; one member shall represent automobile auctions; one member shall represent recreational dealers; one member shall represent the West Virginia attorney general's office; and two members shall represent consumers. All of the representatives, except the attorney general representative who shall be designated by the attorney general, shall be appointed by the governor with the advice and consent of the Senate, with no more than five representatives being from the same political party. ~~The appointed members shall serve without compensation~~
  The terms of the board members shall be for three years commencing the first day of July, one thousand nine hundred ninety-six. Two members shall be appointed to serve one year, two members shall be appointed to serve two years and five members shall be appointed to serve three years. Successive appointments shall be for the full three years. The attorney general representative shall serve continuously.
  The board shall meet at least four times annually and at the call of the commissioner.
  (b) The commissioner shall consult with the board before he or she takes any disciplinary action against a dealer, an automobile auction or a license service to revoke, or suspend a license, place the licensee on probation or levy a civil penalty, unless the commissioner determines that the consultation would endanger a criminal investigation.
  (c) The commissioner may consult with the board by mail, by facsimile, by telephone or at a meeting of the board, but the commissioner is not bound by the recommendations of the board. The commissioner shall give members seven days from the date of a mailing or other notification to respond to proposed actions, except in those instances when the commissioner determines that the delay in acting creates a serious danger to the public's health or safety or would unduly compromise the effectiveness of the action.
  (d) No action taken by the commissioner ~~shall be~~ is subject to challenge or rendered invalid on account of his or her failure to consult with the board.
  (e) The appointed members shall serve without compensation, however, members are entitled to reimbursement of travel and other necessary expenses actually incurred while engaged in legitimate board activities in accordance with the guidelines of the travel management office of the department of administration or its successor agency.
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.
ARTICLE 1D. MOTORCYCLE SAFETY EDUCATION.
§17B-1D-8. Motorcycle safety awareness board continued.
  (a) The motorcycle safety and education committee created pursuant to subsection (f), of section forty-four, article fifteen, chapter seventeen-c of this code will terminate on the thirtieth day of June, two thousand one.
  ~~(b) Effective the first day of July, two thousand one,~~ There is ~~created~~ continued an eight member motorcycle safety awareness board consisting of four ex-officio members and four nongovernmental members. The ex-officio members are the motorcycle safety program coordinator, as appointed under section two of this article, or a designee; the superintendent of the state police or a designee; the commissioner of the bureau of public health or a designee; and the commissioner of the division of tourism or a designee. The four nongovernmental members are a licensed motorcycle operator ~~who will be appointed for an initial term of one year~~; a member of American bikers aimed toward education (ABATE) or the West Virginia confederation of motorcycle clubs ~~who will be appointed for an initial term of one year~~; a licensed insurance agent who has a valid motorcycle endorsement who will be appointed for an initial term of two years; and, an owner of a motorcycle dealership or supplier of aftermarket nonfranchised motorcycle supplies who will be appointed for an initial term of three years. The motorcycle safety program coordinator shall serve as chair of the board. The nongovernmental members ~~will~~ shall be appointed by the governor with the advice and consent of the Senate. ~~and will serve without compensation~~ The terms ~~will be~~ are for three years, except for the initial appointments which will be staggered according to the provisions of this article. Members may be reappointed to the board. Any nongovernmental member who is absent without good cause from three consecutive meetings of the board may be removed from the board and a new member appointed by the governor.
  ~~(c)~~ (b) The board may recommend to the superintendent of the state police types and makes of protective helmets, eye protection devices and equipment offered for sale, purchased or used by any person. The board may make recommendations to the commissioner of motor vehicles regarding the use of the moneys in the motorcycle safety fund created under section seven of this article. The board shall report annually to the Legislature on or before the first day of each regular legislative session.
  (c) The appointed members shall serve without compensation, however, members are entitled to reimbursement of travel and other necessary expenses actually incurred while engaged in legitimate board activities in accordance with the guidelines of the travel management office of the department of administration or successor agency."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 489), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2797) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2847, Making the law-enforcement agency that places a person under arrest responsible for that person's initial transportation to a regional or county jail.
  At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then passed over temporarily.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2878, Allowing certain municipalities providing advanced life support ambulance services to examine, train and employ fire medics.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, section twenty-a, line six, by striking out the word "licensed" and inserting in lieu thereof the word "certified".
  On page two, section twenty-a, line ten, by striking out the word "a".
  And,
  On page two, section twenty-a, line eleven, by striking out the word "license" and inserting in lieu thereof the word "certification".
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 490), and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Hall, Hamilton, Schoen and Walters.
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2878) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2915, Authorizing continued payment of Class VI rate of compensation to the prosecuting attorney of Wetzel County.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page one, by striking out everything following the enacting clause and inserting in lieu thereof the following:
"ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.

§7-7-4. Compensation of elected county officials and county commissioners for each class of county; effective date.

  (a)(1) All county commissioners shall be paid compensation out of the county treasury in amounts and according to the schedule set forth in subdivision (2) of this subsection for each class of county as determined by the provisions of section three of this article: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of such county.
  (2) COUNTY COMMISSIONERS
          Class I                  $ 20,000
          Class II            $ 15,500
          Class III           $ 14,000
          Class IV            $ 10,000
          Class V             $ 7,000
          Class VI            $ 4,000
  (3) The compensation, set out in subdivision (2) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred eighty-five, to each county commissioner. Within each county, every county commissioner whose term of office commenced prior to the first day of January, one thousand nine hundred eighty-five, shall receive the same annual compensation as commissioners commencing a term of office on or after that date by virtue of the new duties imposed upon county commissioners pursuant to the provisions of chapter fifteen, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-three.
  (4) For the purpose of determining the compensation to be paid to the elected county officials of each county, the compensations for each office by class, set out in subdivision (5) of this subsection, are established and shall be used by each county commission in determining the compensation of each of their county officials other than compensation of members of the county commission.
  (5) OTHER ELECTED OFFICIALS
                         County Circuit                        Prosecuting
     Sheriff         Clerk      Clerk         Assessor         Attorney
Class I                  $24,200   $31,300 $31,300             $24,200                $41,500
Class II             $24,200    $28,000    $28,000             $24,200                $39,500
Class III            $24,200    $28,000    $28,000             $24,200                $30,000
Class IV             $22,300    $24,000    $24,000             $22,300          $26,500
Class V              $20,400    $22,000    $22,000             $20,400          $23,500
Class VI             $17,200    $17,200    $17,200             $17,200                $17,000
  (6) Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor, sheriff and prosecuting attorney of a Class I county, any assessor of a Class II and Class III county, any sheriff of a Class II and Class III county and any prosecuting attorney of a Class II county shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected. The compensation, set out in subdivision (5) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred eighty-five, to each elected county official.
  (7) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five percent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
  (8) The Legislature finds that the duties imposed upon county clerks by the provisions of chapter sixty-four, acts of the Legislature, regular session, one thousand nine hundred eighty-two, and by chapter fifteen, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-three, constitute new and additional duties for county clerks and as such justify the additional compensation provided in this section without violating the provisions of section thirty-eight, article VI of the constitution of West Virginia.
  (9) The Legislature further finds that the duties imposed upon circuit clerks by the provisions of chapters sixty-one and one hundred eighty-two, acts of the Legislature, regular session, one thousand nine hundred eighty-one, and by chapter sixty, acts of the Legislature, regular session, one thousand nine hundred eighty-three, constitute new and additional duties for circuit clerks and as such justify the additional compensation provided by this section without violating the provisions of section thirty-eight, article VI of the constitution of West Virginia.
  (b)(1) Prior to the primary election in the year one thousand nine hundred ninety-two, and for the fiscal year beginning on the first day of July, one thousand nine hundred ninety-two, or for any subsequent fiscal year if the approval, set out in subdivision (2) of this subsection, is not granted for any fiscal year, and at least thirty days prior to the meeting to approve the county budget, the commission shall provide notice to the public of the date and time of the meeting and that the purpose of the meeting of the county commission is to decide upon their budget certification to the auditor.
  (2) Upon submission by the county commission to the auditor of a proposed annual budget which contains anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance, equal to anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance and any federal or state special grants, for the immediately preceding fiscal year, plus such additional amount as is necessary for payment of the increases in the salaries set out in subdivisions (3) and (5) of this subsection, and related employment taxes over that paid for the immediately preceding fiscal year, and upon approval thereof by the auditor, which approval shall not be granted for any proposed annual budget containing anticipated receipts which are unreasonably greater or lesser than that of the immediately preceding fiscal year, for the purpose of determining the compensation to be paid to the elected county officials of each county office by class are established and shall be used by each county commission in determining the compensation of each of their county officials: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of the county.
  (3) COUNTY COMMISSIONERS
          Class I                       $24,000
          Class II                 $18,600
          Class III                $16,800
          Class IV                 $12,000
          Class V                  $8,400
  (4) If the approval, set out in subdivision (2) of this subsection, is granted, the compensation, set out in subdivision (3) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred ninety-three, to each county commissioner. Within each county, every county commissioner shall receive the same annual compensation by virtue of the new duties imposed upon county commissioners pursuant to the provisions of chapter one hundred seventy-two, acts of the Legislature, second regular session, one thousand nine hundred ninety and chapter five, acts of the Legislature, third extraordinary session, one thousand nine hundred ninety.
  (5) OTHER ELECTED OFFICIALS
             County     Circuit                   Prosecuting
     Sheriff        Clerk      Clerk     Assessor           Attorney
Class I        $29,040   $37,560   $37,560   $29,040   $59,500
Class II  $29,040   $33,600   $33,600   $29,040   $59,500
Class III $29,040   $33,600   $33,600   $29,040   $36,000
Class IV  $26,760   $28,800   $28,800   $26,760   $31,800
Class V   $24,480   $26,400   $26,400   $24,480   $28,200
Class VI $24,480   $26,400   $26,400   $24,480   $28,200
  (6) Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor, sheriff and prosecuting attorney of a Class I county, any assessor of a Class II and Class III county, any sheriff of a Class II and Class III county and any prosecuting attorney of a Class II county shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected. If the approval, set out in subdivision (2) of this subsection, is granted, the compensation, set out in subdivision (5) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred ninety-three, to each elected county official.
  (7) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five percent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
  (8) Prior to the primary election in the year one thousand nine hundred ninety-two, in the case of a Class III, Class IV or Class V county which has a part-time prosecuting attorney, the county commission may find that such facts and circumstances exist that require the prosecuting attorney to devote full-time to his or her public duties for the four-year term, beginning the first day of January, one thousand nine hundred ninety-three. If the county commission makes such a finding, it may by proper order adopted and entered, require the prosecuting attorney who takes office on the first day of January, one thousand nine hundred ninety-three, to devote full-time to his or her public duties and the county commission shall then compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class II county.
  (9) For any county: (A) Which on and after the first day of July, one thousand nine hundred ninety-four, is classified as a Class II county; and ( B) which prior to such date was classified as a Class III, Class IV or Class V county and maintained a part-time prosecuting attorney, the county commission may elect to maintain the prosecuting attorney as a part-time prosecuting attorney: Provided, That prior to the first day of January, one thousand nine hundred ninety-six, the county commission shall make a finding, by proper order and entered, whether to maintain a full-time or part-time prosecuting attorney. The part-time prosecuting attorney shall be compensated at the same rate of compensation as that of a prosecuting attorney in the class for the county prior to being classified as a Class II county.
  (c)(1) Prior to the primary election in the year one thousand nine hundred ninety-six, and for the fiscal year beginning on the first day of July, one thousand nine hundred ninety-six, or for any subsequent fiscal year if the approval, set out in subdivision (2) of this subsection, is not granted for any fiscal year, and at least thirty days prior to the meeting to approve the county budget, the commission shall provide notice to the public of the date and time of the meeting and that the purpose of the meeting of the county commission is to decide upon their budget certification to the auditor.
  (2) Upon submission by the county commission to the auditor of a proposed annual budget which contains anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance, equal to anticipated receipts into the county's general revenue fund, less anticipated moneys from the unencumbered fund balance and any federal or state special grants, for the fiscal year beginning the first day of July, one thousand nine hundred ninety-six, plus such additional amount as is necessary for payment of the increases in the salaries set out in subdivisions (3) and (6) of this subsection, and related employment taxes over that paid for the immediately preceding fiscal year, and upon approval thereof by the auditor, which approval shall not be granted for any proposed annual budget containing anticipated receipts which are unreasonably greater or lesser than that of the immediately preceding fiscal year for the purpose of determining the compensation to be paid to the elected county officials of each county office by class are established and shall be used by each county commission in determining whether county revenues are sufficient to pay the compensation mandated herein for their county officials: Provided, That as to any county having a tribunal in lieu of a county commission, the county commissioners of the county may be paid less than the minimum compensation limits of the county commission for the particular class of the county: Provided, however, That should there be an insufficient projected increase in revenues to pay the increased compensation and related employment taxes, then the compensation of that county's elected officials shall remain at the level in effect at the time certification was sought.
  (3) COUNTY COMMISSIONERS
  Class I                $28,000
  Class II               $27,500
  Class III              $27,000
  Class IV               $26,500
  Class V $26,000
  Class VI               $21,500
  Class VII              $21,000
  Class VIII             $19,000
  Class IX               $18,500
  Class X $15,000
     (4) The compensation, set out in subdivision (3) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred ninety-seven, to each county commissioner. Every county commissioner in each county, whose term of office commenced prior to or on or after the first day of January, one thousand nine hundred ninety-seven, shall receive the same annual compensation by virtue of legislative findings of extra duties as set forth in section one of this article.
     (5) For the purpose of determining the compensation to be paid to the elected county officials of each county, the compensations for each county office by class, set out in subdivision (6) of this subsection, are established and shall be used by each county commission in determining the compensation of each of their county officials other than compensation of members of the county commission.
(6) OTHER ELECTED OFFICIALS
                                                               County        Circuit          Prosecuting
     Sheriff          Clerk    Clerk     Assessor   Attorney
Class I                        $34,000   $42,000    $42,000    $34,000        $76,000
Class II              $33,500  $41,500   $41,500    $33,500    $74,000
Class III             $33,250  $40,500   $40,500    $33,250    $72,000
Class IV              $33,000  $40,250   $40,250    $33,000    $70,000
Class V               $32,750  $40,000   $40,000    $32,750    $68,000
Class VI              $32,500  $37,500   $37,500    $32,500    $45,000
Class VII             $32,250  $37,000   $37,000    $32,250    $43,000
Class VIII            $32,000  $36,500   $36,500    $32,000    $41,000
Class IX              $31,750  $36,000   $36,000    $31,750    $38,000
Class X               $29,000  $32,000   $32,000    $29,000    $35,000
  (7) The compensation, set out in subdivision (6) of this subsection, shall be paid on and after the first day of January, one thousand nine hundred ninety-seven, to each elected county official. Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor or sheriff of a Class I through Class V county, inclusive, any assessor or any sheriff of a Class VI through Class IX county, inclusive, shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, shall not be restricted on his or her outside activities during the remainder of the term for which he or she is elected.
  (8) In the case of a county that has a joint clerk of the county commission and circuit court, the compensation of the joint clerk shall be fixed in an amount twenty-five percent higher than the compensation would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
  (9) Any prosecuting attorney of a Class I through Class V county, inclusive, shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any county which under the prior provisions of this section was classified as a Class II county and elected to maintain a part-time prosecutor may continue to maintain a part-time prosecutor, until such time as the county commission, on request of the part-time prosecutor, approves and makes a finding, by proper order entered, that the prosecuting attorney shall devote full-time to his or her public duties. The county commission shall then compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class V county: Provided, however, That any county which under the prior provisions of this section was classified as a Class II county and which did not elect to maintain a part-time prosecutor shall maintain a full-time prosecuting attorney and shall compensate said prosecuting attorney at the same rate of compensation as that of a prosecuting attorney in a Class V county: Provided further, That, until the first day of January, two thousand one, when a vacancy occurs in the office of prosecuting attorney prior to the end of a term, the county commission of a Class IV or Class V county may elect to allow the position to become part-time for the end of that term, and thereafter the position of prosecuting attorney shall become full-time.
  (d) (1) The increased salaries to be paid to the county commissioners and the other elected county officials described in this subsection on and after the first day of July, two thousand two, are set out in subdivisions (5) and (7) of this subsection. Every county commissioner and elected county official in each county, whose term of office commenced prior to or on or after the first day of July, two thousand two, shall receive the same annual salary by virtue of legislative findings of extra duties as set forth in section one of this article.
  (2) Before the increased salaries, as set out in subdivisions (5) and (7) of this subsection, are paid to the county commissioners and the elected county officials, the following requirements must be met:
  (A) The auditor has certified that the proposed annual county budget for the fiscal year beginning the first days of July, two thousand two, has increased over the previous fiscal year in an amount sufficient for the payment of the increase in the salaries, set out in subdivisions (5) and (7) of this subsection, and the related employment taxes: Provided, That the auditor may not approve the budget certification for any proposed annual county budget containing anticipated receipts which are unreasonably greater or lesser than that of the previous year. For purposes of this subdivision, the term "receipts" does not include unencumbered fund balance or federal or state grants; and
  (B) Each county commissioner or other elected official described in this subsection in office on the effective date of the increased salaries provided by this subsection who desires to receive the increased salary has prior to that date filed in the office of the clerk of the county commission his or her written agreement to accept the salary increase. The salary for the person who holds the office of county commissioner or other elected official described in this subsection who fails to file the written agreement as required by this paragraph shall be the salary for that office in effect immediately prior to the effective date of the increased salaries provided by this subsection until the person vacates the office or his or her term of office expires, whichever first occurs.
  (3) If there is an insufficient projected increase in revenues to pay the increased salaries and the related employment taxes, then the salaries of that county's elected officials and commissioners shall remain at the level in effect at the time certification was sought.
  (4) In any county having a tribunal in lieu of a county commission, the county commissioners of that county may be paid less than the minimum salary limits of the county commission for that particular class of the county.
  (5) COUNTY COMMISSIONERS
                      Class I                     $30,800
                      Class II                    $30,250
                      Class III                   $29,700
                      Class IV                    $29,150
                      Class V                     $28,600
                      Class VI                    $23,650

Class VII $23,100

Class VIII $20,900

                      Class IX                    $20,350
                      Class X                     $16,500
  (6) For the purpose of determining the salaries to be paid to the elected county officials of each county, the salaries for each county office by class, set out in subdivision (7) of this subsection, are established and shall be used by each county commission in determining the salaries of each of their county officials other than salaries of members of the county commission.
  (7) OTHER ELECTED OFFICIALS
                         County  Circuit                Prosecuting
     Sheriff Clerk   Clerk     Assessor  Attorney
Class I                $37,400   $46,200   $46,200   $37,400    $83,600
Class II               $36,850   $45,650   $45,650   $36,850    $81,400
Class III              $36,575   $44,550   $44,550   $36,575    $79,200
Class IV               $36,300   $44,295   $44,295   $36,300    $77,000
Class V                $36,025   $44,000   $44,000   $36,025    $74,800
Class VI               $35,750   $41,250   $41,250   $35,750    $49,500
Class VII              $35,475   $40,700   $40,700   $35,475    $47,300
Class VIII             $35,200   $40,150   $40,150   $35,200    $45,100
Class IX               $34,925   $39,600   $39,600   $34,925    $41,800
Class X                $31,900   $35,200   $35,200   $31,900    $38,500
  (8) Any county clerk, circuit clerk, joint clerk of the county commission and circuit court, if any, county assessor or sheriff of a Class I through Class V county, inclusive, any assessor or any sheriff of a Class VI through Class IX county, inclusive, shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any public official, whose term of office begins when his or her county's classification imposes no restriction on his or her outside activities, may not be restricted on his or her outside activities during the remainder of the term for which he or she is elected.
  (9) In the case of a county that has a joint clerk of the county commission and circuit court, the salary of the joint clerk shall be fixed in an amount twenty-five percent higher than the salary would be fixed for the county clerk if it had separate offices of county clerk and circuit clerk.
  (10) Any prosecuting attorney of a Class I through Class V county, inclusive, shall devote full-time to his or her public duties to the exclusion of any other employment: Provided, That any county which under the prior provisions of this section was classified as a Class II county and elected to maintain a part-time prosecutor may continue to maintain a part-time prosecutor, until such time as the county commission, on request of the part-time prosecutor, approves and makes a finding, by proper order entered, that the prosecuting attorney shall devote full-time to his or her public duties. The county commission shall then compensate said prosecutor at the same salary as that of a prosecuting attorney in a Class V county: Provided, however, That any county which under the prior provisions of this section was classified as a Class II county and which did not elect to maintain a part-time prosecutor shall maintain a full-time prosecuting attorney and shall compensate said prosecuting attorney at the same salary as that of a prosecuting attorney in a Class V county: Provided further, That, until the first day of January, two thousand three, when a vacancy occurs in the office of prosecuting attorney prior to the end of a term, the county commission of a Class IV or Class V county may elect to allow the position to become part-time for the end of that term and thereafter the position of prosecuting attorney shall become full-time.
  (e) Notwithstanding any provision of this code to the contrary, effective the first day of January, two thousand five, the prosecuting attorney of Mingo county shall become a part-time position with a salary as that of a prosecuting attorney in a class VI county.
__(f) Notwithstanding any provision of this code to the contrary, the position of prosecuting attorney of Wetzel county shall be a part-time position regardless of the county's classification with the salary as that of a prosecuting attorney in a Class VI county."
  And,
  By amending the title of the bill to read as follows:
  H. B. 2915 - "A Bill to amend and reenact section four, article seven, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to making the prosecuting attorney of Mingo county a part-time position; and making the Wetzel county prosecuting attorney to remain part-time; effective dates; and salaries."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 491), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Blair and Sobonya.
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2915) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  [Clerk's Note: Following close examination by the Clerk and the Speaker, the foregoing bill was not enrolled due to inappropriate amendments thereto having been made, thereby creating technical deficiencies in the bill.]
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2961, Limiting idling of school bus engines for more than five minutes except for certain reasons.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 12. SPECIAL STOPS REQUIRED.

§17C-12-7. Overtaking and passing school bus; penalties; signs and warning lights upon buses; removal of warning lights, lettering, etc., upon sale of buses; highways with separate roadways; limitation on idling.

  (a) The driver of a vehicle, upon meeting or overtaking from either direction any school bus which has stopped for the purpose of receiving or discharging any school children, shall stop the vehicle before reaching ~~such~~ the school bus when there is in operation on ~~said~~ the school bus flashing warning signal lights, as referred to in section eight of this article, and ~~said~~ the driver shall not proceed until ~~such~~ the school bus resumes motion, or is signaled by the school bus driver to proceed or the visual signals are no longer actuated. This section applies wherever the school bus is receiving or discharging children including, but not limited to, any street, highway, parking lot, private road or driveway: Provided, That the driver of a vehicle upon a controlled access highway need not stop upon meeting or passing a school bus which is on a different roadway or adjacent to ~~such~~ the highway and where pedestrians are not permitted to cross the roadway. Any ~~such~~ driver acting in violation of this subsection is guilty of a misdemeanor and, upon conviction, ~~thereof,~~ shall be fined not less than fifty nor more than two hundred dollars, or imprisoned in the county jail not more than six months, or both fined and imprisoned. If the identity of the driver cannot be ascertained, then any ~~such~~ owner or lessee of the vehicle in violation of this subsection is guilty of a misdemeanor and, upon conviction, ~~thereof,~~ shall be fined not less than twenty-five nor more than one hundred dollars. ~~Provided,~~ ~~however,~~ ~~That such~~ The conviction shall not subject ~~such~~ the owner or lessee to further administrative or other penalties for ~~said~~ the offense, notwithstanding other provisions of this code to the contrary.
  (b) Every bus used for the transportation of school children shall bear upon the front and rear ~~thereof~~ of the bus a plainly visible sign containing the words "school bus" in letters not less than eight inches in height. When a contract school bus is being operated upon a highway for purposes other than the actual transportation of children either to or from school, all markings ~~thereon~~ on the contract school bus indicating "school bus" shall be covered or concealed. Any school bus sold or transferred to another owner by a county board of education, agency or individual shall have all flashing warning lights disconnected and all lettering removed or permanently obscured, except when sold or transferred for the transportation of school children.
  (c) The state board of education shall write a policy governing the idling of school buses."   And,
  By amending the title of the bill to read as follows:
  H. B. 2961 - "A Bill to amend and reenact section seven, article twelve, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to school buses generally; and requiring the state board of education develop a policy concerning idling of school buses."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 492), and there were--yeas 73, nays 26, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Blair, Border, Carmichael, DeLong, Ellem, Ennis, Evans, Hall, Hamilton, Hartman, Howard, Leggett, Louisos, Overington, Romine, Schadler, Schoen, Sobonya, Stalnaker, Sumner, Talbott, R. Thompson, R. M. Thompson, Walters, Webb and Yost.
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2961) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
  H. B. 3009, Excluding certain records from the freedom of information act that are collected in the interest of homeland security by governmental bodies.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 1. PUBLIC RECORDS.

§29B-1-4. Exemptions.

  (a) The following categories of information are specifically exempt from disclosure under the provisions of this article:
  (1) Trade secrets, as used in this section, which may include, but are not limited to, any formula, plan pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors;
  (2) Information of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance: Provided, That nothing in this article shall be construed as precluding an individual from inspecting or copying his or her own personal, medical or similar file;
  (3) Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination;
  (4) Records of law-enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law-enforcement agencies which are maintained for internal use in matters relating to law enforcement;
  (5) Information specifically exempted from disclosure by statute;
  (6) Records, archives, documents or manuscripts describing the location of undeveloped historic, prehistoric, archaeological, paleontological and battlefield sites or constituting gifts to any public body upon which the donor has attached restrictions on usage or the handling of which could irreparably damage such record, archive, document or manuscript;
  (7) Information contained in or related to examination, operating or condition reports prepared by, or on behalf of, or for the use of any agency responsible for the regulation or supervision of financial institutions, except those reports which are by law required to be published in newspapers; ~~and~~
  (8) Internal memoranda or letters received or prepared by any public body;
  (9) Records assembled, prepared or maintained to prevent, mitigate or respond to terrorist acts or the threat of terrorist acts, the public disclosure of which threaten the public safety or the public health;
__(10) Those portions of records containing specific or unique vulnerability assessments or specific or unique response plans, data, databases, and inventories goods or materials collected or assembled to respond to terrorist acts; and communication codes or deployment plans of law enforcement or emergency response personnel;
__(11) Specific intelligence information and specific investigative records dealing with terrorist acts or the threat of a terrorist act shared by and between federal and international law-enforcement agencies, state and local law enforcement and other agencies within the department of military affairs and public safety;
__(12) National security records classified under federal executive order and not subject to public disclosure under federal law that are shared by federal agencies, and other records related to national security briefings to assist state and local government with domestic preparedness for acts of terrorism;
__(13) Computing, telecommunications and network security records, passwords, security codes or programs used to respond to or plan against acts of terrorism which may be the subject of a terrorist act;
__(14) Security or disaster recovery plans, risk assessments, tests, or the results of those tests;
__(15) Architectural or infrastructure designs, maps or other records that show the location or layout of the facilities where computing, telecommunications or network infrastructure used to plan against or respond to terrorism are located or planned to be located; and
__(16) Codes for facility security systems; or codes for secure applications for such facilities referred to in subdivision (15), subsection (a) of this section.
__(b) As used in subdivisions (9) through (16), subsection (a) of this section, the term 'terrorist act' means an act that is likely to result in serious bodily injury or damage to property or the environment and is intended to:
__(1) Intimidate or coerce the civilian population;
__(2) Influence the policy of a branch or level of government by intimidation or coercion;
__(3) Affect the conduct of a branch or level of government by intimidation or coercion; or
__(4) Retaliate against a branch or level of government for a policy or conduct of the government.
__(c) Nothing in the provisions of subdivision (9) through (16), subsection (a) of this section, should be construed to make subject to the provisions of this chapter any evidence of an immediate threat to public health or safety unrelated to a terrorist act or the threat thereof which comes to the attention of a public entity in the course of conducting a vulnerability assessment response or similar activity."

And,

  By amending the title of the bill to read as follows:
  H. B. 3009 - "A Bill to amend and reenact section four, article one, chapter twenty-nine-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to excluding certain records from disclosure under the freedom of information act collected in response to and in preparation for terrorist acts or threats of terrorist acts; definitions; and exceptions."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 493), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3009) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 494), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3009) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 3050, Authorizing the county commission of Jefferson County to convey parcel of county-owned land to the Jefferson County fairgrounds
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page one, by striking out everything following the enacting clause and inserting in lieu thereof the following:
"JEFFERSON COUNTY.

§1. County commission authorized to convey land to the Jefferson County Fair Association.

  (a) The Legislature finds that:
  (1) An adequate site is necessary for the citizens of Jefferson County to conduct a county fair to enable youth and adults to exhibit livestock, horticultural products, agricultural products and home economic skills;
  (2) Transfers of property, real or personal, made by county commissions to any person, organization or corporation for the furtherance of county fair activities promotes the cultural and educational welfare of the public and, therefore, is a public purpose; and
  (3) Transfers and conveyances of real property by county commissions are authorized without legislative approval, by article three, chapter seven of the code of West Virginia, as amended.
  (b) Therefore, the Legislature declares that the county commission of Jefferson County is hereby authorized and empowered to transfer and convey unto the Jefferson County Fair Association the tract or parcel of land described in subsection (c), after the county commission of Jefferson County has approved such transfer and conveyance by a majority vote of the commission.
  (c) The tract or parcel of land situate in Middleway District, Jefferson County, West Virginia, to the north of West Virginia County Route 15 (Leetown Road), approximately 0.5 mile east of its intersection with WV Co. Rte. 6, on the waters of Hopewell Run, more particularly described as follows:
  Beginning at (200) a found No. 5 Capped Rebar (Shepp), corner in the line of the Jefferson County Volunteer Fireman Association (D.B. 346, P. 603) and to the Jefferson County Fair Association (D.B. 754, P. 48), thence leaving the Jefferson County Volunteer Fireman Association and with the Jefferson County Fair Association in part and finally with a 13.457 acre Lease Parcel of the Overseers of the Poor of Jefferson County (now the Jefferson County Commission, Lease recorded in D.B. 931, P. 581) N 65⁰00'00" W, 1367.26', passing (211) a Set No. 5 Capped Rebar at 931.09', corner to the above mentioned Lease Parcel, to (347) a Set No. 5 Capped Rebar, corner to the above mentioned Lease Parcel; thence again with the Lease Parcel S 26⁰58'25" W, 182.62', to (216) a Set No. 5 Capped Rebar, corner to the Lease Parcel and to the Jefferson County Solid Waste Authority (D.B. 778, P. 630), said corner being located N 26⁰ 58'25" E, 1183.82', from (472) a Set No. 5 Capped Rebar; thence leaving the Lease Parcel and with the Jefferson County Solid Waste Authority N 22⁰ 17'06" W, 166.82', to (38) a Found No. 5 Capped Rebar (Shepp) corner to the Jefferson County Solid Waste Authority (D.B. 778, P. 630) and to other lands of the Jefferson County Solid Waste Authority (D.B. 665., P. 201); thence with said other lands of the Jefferson County Solid Waste Authority (D.B. 665, P.201) N 32⁰ 53'05" E, 1147.92', to (34) a Found No. 5 Capped Rebar (Shepp), corner to the Jefferson County Solid Waste Authority (D.B. 665, P. 201) and to Tabb (D.B. 770, P. 581); thence with Tabb S 55⁰03'35" E, 1440.31', to (345) a Set No. 5 Capped Rebar, corner to Tabb and the aforementioned Jefferson County Volunteer Fireman Association, thence with the Jefferson County Volunteer Fireman Association S 30⁰ 34'53" W, 822.99', to (200) the Point of Beginning containing 32.145 acres, more or less, as surveyed by Appalachian Surveys of West Virginia, L.L.C., in May, 2001, and as shown on the Plat of Survey.
  Being a part of the property conveyed to the Overseers of the Poor of Jefferson County (now the Jefferson County Commission), by deed of record in the office of the clerk of the county commission of Jefferson County in Deed Book 38 at page 24.
  (d) Any proper conveyance made by the county commission of Jefferson County transferring ownership of the tract or parcel of land, described in subsection (c), to the Jefferson County Fair Association shall contain a provision that ownership of the tract or parcel of land, described in subsection (c), shall revert to the county commission of Jefferson County should the land cease to be used for the purpose of conducting a county fair."
  And,
  By amending the title of the bill to read as follows:
  H. B. 3050 - "A Bill authorizing the county commission of Jefferson County to convey a parcel of county-owned land to the Jefferson County Fair Association after authorization by a majority vote of the county commission of Jefferson County; and requiring reversionary rights provision."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 495), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Sobonya and Walters.
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3050) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  H. B. 3084, Restructuring the support enforcement commission in the areas of membership, duties and powers.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page four, section one hundred two, line four, following the word "governor" by inserting the following proviso: "Provided, That no more than five members of the commission may belong to the same political party."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 496), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3084) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 3089, Modifying various requirements of financial institutions; notifying the real estate commission in certain circumstances.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page five, section eighteen, line sixty-nine, following the word "funds" by striking out the comma.
  On page six, section eighteen, lines seventy-one and seventy-two, following "(f)" by striking out the comma and the words "section eighteen of this article" and inserting in lieu thereof the words "of this section".
  On pages eight and nine, section twenty-two, line thirty-six, following the word "broker" and the period, by striking out the remainder of the bill.
  And,
  By amending the title of the bill to read as follows:
  H. B. 3089 - "A Bill to amend and reenact sections eighteen and twenty-two, article forty, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to modifying the requirement that financial institutions which maintain a trust fund deposit account for real estate brokers notify the real estate commission if any checks drawn against the account are returned for any cause; providing that a financial institution is required to notify the real estate commission if any checks drawn against the trust fund account are returned for insufficient funds; removing criminal and civil penalties applicable to a financial institution if a trust fund account for a real estate broker fails to notify the real estate commission if any check drawn against the account is returned for insufficient funds."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 497), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Manchin.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3089) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Conference Committee Report Availability
  At 11:00 a.m., the Clerk announced the availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 2122, Relating to medical professional liability generally.
Messages from the Senate
  The House then proceeded to further consideration of H. B. 2847, making the law-enforcement agency that places a person under arrest responsible for that person's initial transportation to a regional or county jail, having been reported in earlier proceedings and postponed until this time.
  The following Senate amendments were then reported by the Clerk:
  On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. COMPENSATION OF ELECTED COUNTY OFFICIALS.
§7-7-13. Allowance for expenses of sheriff.
  The county commission of every county having a population of thirty thousand or less as determined by the latest official census available and which, as provided in section two-a, article eight of this chapter, has directed the sheriff as jailer to feed prisoners shall, in addition to his or her compensation, allow to the sheriff for keeping and feeding each prisoner, other than federal prisoners or prisoners held under civil process as provided by law, not more than five dollars per day for each prisoner.
  The limitation per day shall not include cost of personal service, bed or bedding, soaps and disinfectants and items of like kind, the cost of which shall be paid out of the allowance fixed by the county commission under the provisions of present law.
  All supplies of whatever kind for keeping and feeding prisoners shall be purchased upon the requisition of the sheriff under rules ~~and regulations~~ prescribed by the county commission. At the end of each month the sheriff shall file with the county commission a detailed statement showing the name of each prisoner, date of commitment, date of discharge, the number of days in jail and an itemized statement showing each purchase and the cost for keeping and feeding prisoners.
  The county commission of every county shall allow the actual and necessary expenses incurred by the sheriff in the discharge of his or her duties including, but not limited to, those incurred in arresting, pursuing or transporting persons accused or convicted of crimes and offenses; in the cost of law-enforcement and safety equipment; in conveying or transporting a prisoner from and to jail to participate in court proceedings; and in conveying or transferring any person to or from any state institution where he or she may be committed from his or her county, where the sheriff is authorized to convey or transfer the person: Provided, That the law-enforcement agency that places a person under arrest shall be responsible for the person's initial transportation to a regional or county jail, except where there is a preexisting agreement between the county and the political body the other law-enforcement agency serves. Any person transported to the regional jail as provided for by the provisions of this section shall, upon conviction for the offense causing his or her incarceration, pay the reasonable costs of the transportation. The money is to be collected by the court of conviction at the current mileage reimbursement rate. The county commission shall allow the actual and necessary expenses incurred in serving summonses, notices or other official papers in connection with the sheriff's office.
  Every sheriff shall file monthly, under oath, an accurate account of all the actual and necessary expenses incurred by him or her, his or her deputies, assistants and employees in the performance and discharge of their official duties supported by verified accounts before reimbursement thereof shall be allowed by the county commission. Reimbursement, properly allowed, shall be made from the general county fund."
  And,
  By amending the title of the bill to read as follows:
  H. B. 2847 - "A Bill to amend and reenact section thirteen, article seven, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the law- enforcement agency that places a person under arrest being responsible for the person's initial transportation to a regional or county jail, except where a transportation agreement exists between the other agency and the sheriff; and requiring convicted persons to pay cost of transportation."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 498), and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Anderson, Blair, Border, Canterbury, Caruth, Duke, Faircloth and Hall.
  Absent And Not Voting: Cann and Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2847) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
  Com. Sub. for S. B. 191, Relating to state-chartered credit union converting to federal or another state charter,
  S. B. 192, Relating to notice from certain bank holding companies,
  Com. Sub. for S. B. 204, Relating to involuntary commitment generally,
  Com. Sub. for S. B. 338, Establishing medicaid buy-in program for certain individuals with disabilities,
  Com. Sub. for S. B. 354, Relating to operating or attempting to operate clandestine drug laboratory; penalty,
  S. B. 388, Modifying requirements for titling and registration of imported vehicles,
  S. B. 608, Allowing continuance of summary certificate of need reviews for proposed behavioral health services,
  S. B. 626, Revising works act,
  Com. Sub. for S. B. 651, Creating academy of science and technology,
  And,
  S. B. 652, Renaming Marion health care hospital John Manchin, Sr., health care center.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect from passage, of
  Com. Sub. for S. B. 329, Authorizing miscellaneous agencies and boards to promulgate legislative rules,
  And,
  Com. Sub. for S. B. 583, Creating coal resource transportation road system.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect May 1, 2003, of
  S. B. 105, Increasing tax on cigarettes.
  A message from the Senate, by
  The Clerk of the Senate, announced the concurrence by the Senate as to the effective date, from passage, of
  Com. Sub. for S. B. 455, Authorizing retirement credit for public employment in another state,
  And,
  Com. Sub. for S. B. 387, Increasing time to perfect liens for certain debts.
Reordering of the Calendar
  Delegate Staton announced that the Committee on Rules had transferred Com. Sub. for S. B. 372, on second reading, Special Calendar, to the House Calendar; and Com. Sub. for S. B. 206, Com. Sub. for S. B. 440 and S. B. 655 on third reading, House Calendar, to the Special Calendar.
Resolutions Introduced
  Delegates Fleischauer, Amores, Beach, Caputo, Craig, Fragale, Hall, Hatfield, Hrutkay, Iaquinta, Kominar, Leach, Manchin, Morgan, Renner, Smirl, Susman, Trump and Warner offered the following resolution, which was read by its title and referred to the Committee on Rules:
  H. C. R. 96 - "Requesting the Committee on Judiciary to conduct a study on misdemeanors, looking into the possibility of expungement of a criminal record for first-time nonviolent misdemeanor offenses, for employment purposes only, after a period of three years, in which no subsequent convictions have occurred."
  Whereas, Many people have at one time or another committed an irresponsible and/or juvenile action; and
  Whereas, The irresponsible and/or juvenile action may have had an unintended consequence of violating the laws of the State; and
  Whereas, Many citizens who at one time committed a minor violation of the law have now become well respected, upstanding citizens of their communities; and
  Whereas, A misdemeanor criminal conviction on their criminal record may hinder them from receiving financial aid, jobs and/or accepting positions that they would otherwise be more than qualified for and actually excel at; therefore, be it
  Resolved by the Legislature of West Virginia:
  The Legislature should explore the possibilities of expunging first offense convictions of nonviolent misdemeanors, for employment purposes only, after three years in which no subsequent convictions have occurred; and, be it
  Further Resolved, That the Committee on Judiciary is hereby requested to study the benefits and possible downfalls that may be created by expunging first offense convictions of nonviolent misdemeanors, for employment purposes only, after three years in which no further convictions occurred; and, be it
  Further Resolved, That the Committee on Judiciary report to the regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
  Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Committee on Judiciary.
  Delegates Michael, Mezzatesta and Williams offered the following resolution, which was read by its title and referred to the Committee on Rules:
  H. C. R. 98 - "Requesting the Joint Committee on Government and Finance to conduct a study to determine the means of best facilitating the creation of a new Water Quality Board and transferring the water quality standard rule-making authority from the Environmental Quality Board to the Water Quality Board."
  Whereas, The Environmental Quality Board currently functions as an appellate body reviewing certain orders, permits or official actions of the Chief of Water Resources or the Director of the Department of Environmental Protection; and
  Whereas, The Environmental Quality Board also functions as a rule-making body with authority to promulgate legislative rules setting standards of water quality which are applicable to both surface and ground waters of this State; and
  Whereas, There is a pressing need to separate these joint, and sometimes conflicting, functions of the Environmental Quality Board to provide a more effective, efficient and equitable administration of water quality rules in this State; therefore, be it
  Resolved by the Legislature of West Virginia:
  That the Joint Committee on Government and Finance is hereby requested to study the means of best facilitating the creation of a new Water Quality Board and transferring the water quality standard rule-making authority from the Environmental Quality Board to the Water Quality Board; and, be it
  Further Resolved, That the Joint Committee on Government and Finance report two months prior to the regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
  Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
  Delegates Foster, Perdue, Leach, Long, Hatfield and Border offered the following resolution, which was read by its title and referred to the Committee on Rules:
  H. R. 20 - "Proclaiming August 23rd as 'Health Unit Coordinators Day'."
  Whereas, Health unit coordinators are valued members of the health care team, and the demand for this profession continues to grow; and
  Whereas, Continued advances in medicine, along with the increasing demands of this profession, have encouraged the growth and expansion of the unit coordinator's responsibilities; and
  Whereas, These responsibilities include; setting up hospital patient charts, ordering lab tests and x-rays, transcribing physician orders and performing other functions -- all in order to keep their units running smoothly while serving patients and physicians; and
  Whereas, With these multifaceted ranges of expertise, health unit coordinators are employed in essential medical areas in; hospitals, nursing homes, home health care agencies, hospital admitting and medical records departments, clinics and physician offices; and
  Whereas, In 1980, as a direct result of this growing profession, the National Association of Health Unit Coordinators (NAHUC) was founded; and
  Whereas, The mission of the National Association of Health Unit Coordinators is to promote health unit coordinating as a profession through education, certification, compliance with the NAHUC Standards of Practice, Standards of Education and a Code of Ethics; and
  Whereas, Each year since the Association's establishment, August 23rd has been declared Health Unit Coordinators Day by mayors, governors, senates and assemblies of many states across the nation, and the U.S. Senate and House of Representatives; and
  Whereas, It is the House of Delegates desire and intention to promote NAHUC's goals by declaring a day of recognition in honor of health unit coordinators; therefore, be it
  Resolved by the House of Delegates:
  That the West Virginia House of Delegates hereby designates August 23rd as "Health Unit Coordinators Day"; and, be it
  Further Resolved, That the House of Delegates hereby requests that the Governor of West Virginia issue a proclamation declaring August 23, of each respective year, officially as "Health Unit Coordinators Day"; and, be it
  Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Governor of the State of West Virginia, the President of the State Senate and the President of the National Association of the Health Unit Coordinators.
  Mr. Speaker, Mr. Kiss, and Delegates Ennis, Browning, R. M. Thompson, Manchin and Swartzmiller offered the following resolution, which was read by its title and referred to the Committee on Rules:
  H. R. 21 - "Supporting West Virginia men and women of the Air and Army National Guard and the Army, Navy and Marine Reserves participating in homeland and international operations."
  Whereas, Since the terrorist attack on the World Trade Center on September 11, 2001, members of the West Virginia Air and Army National Guard and the Navy, Army and Marine Reserves have been activated to assist in international and homeland operations; and
  Whereas, Nationwide, 176,553 guard and reserve units have been called up to support Operation Noble Eagle, the domestic security campaign and Operation Enduring Freedom, the campaign outside U.S. Borders; and
  Whereas, According to the U.S. Department of Defense and state records, nearly 2,400 West Virginia National Guard and Army and Navy Reserve units are now on active duty; and
  Whereas, These units called to active duty include the; 38th Ordnance Ammo Unit, 1092nd Engineer, 130th Airlift Wing, 156th Military Police, 157th Military Police, 167th Airlift Wing, 1863rd Truck Company, 261st Ordnance Company 1 Platoon Medical Lifort, 261st Ordnance Company Detachment 1, 261st Ordnance Company Detachment 2, 2nd Special Forces Battalion 19th Special Forces Group 1st Special Forces, 300th Chemical Company, 304th Military Police, 321st Ordnance Battalion Headquarters and Headquarters Company, 351st Ordnance Company, 363rd Military Police Company, 459th Engineer Company Detachment 3, 459th Engineer Company Heavy Boat, 811th Ordnance Company, Fleet Maintenance Detachment 0202, National Guard Special Operations Detachment 105, Special Operations Detachment 3, Special Operations Detachment E, Special Operations Europe Forward 2 and the State Command National Guard; and
  Whereas, Four more units have recently been given their mobilization orders to be deployed on March 15th - - those being the 111th Engineer Group (88 troops), 119th Engineer Company (159 troops), 152nd Military Police Detachment (45 troops) and the 1257th Transportation Company (167 troops), 459 additional soldiers in total; and
  Whereas, Currently, two more units (557 troops) are poised to be placed on active duty; and
  Whereas, The dedication and sacrifices which these men and women are exercising in this ongoing effort will never be forgotten; therefore, be it
  Resolved by the House of Delegates:
  That the West Virginia House of Delegates does hereby support the West Virginia men and women in the Air and Army National Guard and the Army, Navy and Marine Reserves who are participating in homeland and international operations; and, be it
  Further Resolved, That the Clerk of the House is hereby directed to forward a copy of this Resolution to the Governor, the Secretary of Military Affairs and Public Safety and the Adjutant General of the West Virginia National Guard.
Petitions
  Delegate Pethtel presented a petition, signed by four hundred seventy-six residents of Wetzel County, in support of S. B. 56 and H. B. 2142, prohibiting insurers from requiring persons covered under a contract to obtain prescription drugs from a mail-order pharmacy under certain circumstances; which was referred to the Committee on Banking and Insurance.
Consent Calendar
Third Reading
  Com. Sub. for S. B. 162, Expunging certain motor vehicle license information for nineteen-year-olds; on third reading, coming up in regular order, was reported by the Clerk.
  The Clerk announced that, pursuant to House Rule 70a, Delegate Mezzatesta had requested Com. Sub. for S. B. 162 be removed from the Consent Calendar and be placed upon the House Calendar.
  The following bills on third reading, coming up in regular order, were each read a third time:
  S. B. 357, Relating to standard non-forfeiture law for individual deferred annuities,
  Com. Sub. for S. B. 422, Allowing public service commission to change certain rates for municipalities or cooperative utilities,
  Com. Sub. for S. B. 424, Authorizing commissioner of corrections to consent to transfer of convicted offenders under federal treaty; informed consent,
  S. B. 436, Directing public service commission implement 211 information and referral system,
  And,
  Com. Sub. for S. B. 437, Requiring joint committee on government and finance approve certain acquisitions, construction and long-term agreements.
  Com. Sub. for S. B. 467, Allowing insurance agencies to operate as managing general agents; other provisions; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
  The Clerk announced that, pursuant to House Rule 70a, Mr. Speaker, Mr. Kiss, had requested Com. Sub. for S. B. 467 be removed from the Consent Calendar and be placed upon the House Calendar.
  The following bills on third reading, coming up in regular order, were each read a third time:
  S. B. 486, Requiring certified public accountant to notify insurer's board or audit committee of adverse financial condition,
  S. B. 493, Eliminating certain administrative duties of commissioner of agriculture
  Com. Sub. for S. B. 534, Creating Third-Party Administrator Act,
  S. B. 538, Allowing supplemental assessment of personal property in certain cases,
  S. B. 589, Relating to common interest communities and condominiums; restrictive covenants,
  S. B. 605, Establishing Community Improvement Act,
  Com. Sub. for S. B. 611, Defining podiatric medical assistants; other provisions,
  S. B. 627, Renaming Guthrie Center Gus R. Douglass Agricultural Center,
  S. B. 635, Clarifying foster care services in relation to behavioral health,
  S. B. 649, Relating to use of waste tire remediation funds,
  And,
  S. B. 657, Relating to capitol company act.
  On the passage of the bills, the yeas and nays were taken (Roll Nos. 499-516), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Cann and Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (S. B. 357, Com. Sub. for S. B. 422, Com. Sub. for S. B. 424, S. B. 436, Com. Sub. for S. B. 437, S. B. 486, S. B. 493, Com. Sub. for S. B. 534, S. B. 538, S. B. 589, S. B. 605, Com. Sub. for S. B. 611, S. B. 627, S. B. 635, S. B. 649 and S. B. 657) passed.
  An amendment to the title of Com. Sub. for S. B. 437, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  Com. Sub. for S. B. 437 - "A Bill to amend and reenact section four, article six, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section forty, article three, chapter five-a of said code, all relating to state interest in real property; requiring presentation of certain information to the joint committee on government and finance; tax exemption not affected by lease-backs; exemptions available to private entity who is a party to the leaseback; lease-backs to be considered public improvements; and personal liability of a private entity who is a party to a leaseback."
  An amendment to the title of S. B. 538, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  S. B. 538 - "A Bill to amend and reenact section five, article three, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to allowing a supplemental assessment on personal property when personal property has been omitted from the recordbooks."
  An amendment to the title of S. B. 605, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  S. B. 605 - "A Bill to amend article twenty-four, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto two new section, designated sections eighty-six and eighty-seven; and to amend chapter sixteen of said code, by adding thereto a new article, designated article thirteen-e, all relating to expanding funding methods for community improvement generally; authorizing the use of voluntary proffers through zoning ordinance; providing enforcement mechanism for proffers; authorizing the creation of and empowerment of community improvement districts; providing for the development, construction, acquisition, financing, extension and improvement of projects; providing for notice to owners of real property of assessments; authorizing the issuance of assessment bonds; and providing for assessments and liens related thereto."
  An amendment to the title of Com. Sub. for S. B. 611, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title to read as follows:
  Com. Sub. for S. B. 611 - "A Bill to amend and reenact sections two, six, nine and ten, article twenty-three, chapter thirty of the code of West Virginia, one thousand nine hundred thirty- one, as amended; and to further amend said article by adding thereto two new sections, designated sections six-a and six-b, all relating to licenses and permits issued by the board of radiologic technologists; defining podiatric medical assistants; establishing the requirement of a permit to perform podiatric radiographs and eligibility criteria therefor; restricting the scope of practice under such permit; and requiring the promulgation of legislative rules."
  On motion of Delegate Amores, the title of S. B. 657 was amended to read as follows:
  S. B. 657 - "A Bill to amend and reenact section eight, article one, chapter five-e of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to reducing the total tax credits available under the capital company act during the fiscal year beginning on the first day of July, two thousand three."
  Delegate Staton moved that Com. Sub. for S. B. 424 take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 517), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
  Absent And Not Voting: Cann, Coleman, Hartman, Renner and Wakim.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 424) takes effect from its passage.
  Delegate Staton moved that S. B. 538 take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 518), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
  Absent And Not Voting: Cann, Coleman, Renner and Wakim.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 538) takes effect from its passage.
  Delegate Staton moved that S. B. 635 take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 519), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
  Absent And Not Voting: Cann, Coleman and Renner.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 635) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence on those bills requiring the same.   Delegate Manchin announced that he was absent earlier when the vote was taken on Roll No. 497, and that had he been present, he would have voted "Yea" thereon.
Second Reading
  S. B. 95, Increasing length and width for certain vehicles; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page four, section four, at the end of line twenty-seven, by striking out the word "provided", and inserting in lieu thereof the word "if",
  And,
  On page five, section four, line thirty-one, by striking out the word "sixty-five" and inserting in lieu thereof the word "seventy-five".
  The bill was then ordered to third reading.
  Com. Sub. for S. B. 109, Notifying third party of entry of order affecting child's care and education; on second reading, coming up in regular order, was read a second time.
  The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested Com. Sub. for S. B. 109 be removed from the Consent Calendar and be placed upon the House Calendar.
  Com. Sub. for S. B. 178, Relating to subject matter jurisdiction in family courts; on second reading, coming up in regular order, was read a second time.
  At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then postponed until the completion of all items remaining on the Consent Calendar, second reading.
  S. B. 186, Defining aggrieved person for purposes of board of zoning appeals; on second reading, coming up in regular order, was read a second time.
  The Clerk announced that, pursuant to House Rule 70a, Delegate Doyle had requested S. B. 186 be removed from the Consent Calendar and be placed upon the House Calendar.
  S. B. 341, Creating Uniform Interstate Enforcement of Domestic Violence Protection Orders Act; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
§48-27-310. Full faith and credit.
  Any protective order issued pursuant to this article shall be effective throughout the state in every county. Any ~~protective~~ protection order issued by any other state ~~territory or possession of the United States, Puerto Rico, the District of Columbia or Indian tribe~~ of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States or any Indian tribe or band that has jurisdiction to issue protection orders shall be accorded full faith and credit and enforced as if it were an order of this state whether or not such relief is available in this state. A protective order from another jurisdiction is presumed to be valid if the order appears authentic on its face and shall be enforced in this state. If the validity of the order is contested, the court or law enforcement to which the order is presented shall, prior to the final hearing, determine the existence, validity and terms of such order in the issuing jurisdiction. A protective order from another jurisdiction may be enforced even if the order is not entered into the state law-enforcement information system described by 27-802 in accordance with the provisions of section five, article twenty-eight of this chapter.
§48-27-802. Maintenance of registry by state police.
  (a) The West Virginia state police shall maintain a registry in which it shall enter certified copies of protective orders entered by courts from every county in this state pursuant to the provisions of this article ~~or from other jurisdictions~~ and of protection orders issued by another jurisdiction pursuant to ~~their laws~~ its law: Provided, That the provisions of this subsection are not effective until a central automated ~~record~~ state law-enforcement information system is developed.
  (b) A petitioner who obtains a protective order pursuant to this article, or a protection order from another jurisdiction pursuant to its law, may register that order in any county within this state where the petitioner believes enforcement may be necessary.
  (c) A protective order may be registered by the petitioner in a county other than the issuing county by obtaining a copy of the order of the issuing court, certified by the clerk of that court, and presenting that certified order to the local office of the West Virginia state police where the order is to be registered.
  (d) Upon receipt of a certified order for registration, the local office of the West Virginia state police shall provide certified copies to any law-enforcement agency within its jurisdiction, including ~~the city~~ any municipal police office and the ~~county sheriff's~~ office of the sheriff.
  (e) Nothing in this section precludes the enforcement of an order in a county other than the county or jurisdiction in which the order was issued if the petitioner has not registered the order in the county in which an alleged violation of the order occurs.
§48-27-903. Misdemeanor offenses for violation of protective order, repeat offenses, penalties.
  (a) A respondent who abuses the petitioner or minor children or who is physically present at any location in knowing and willful violation of the terms of an : (1) An emergency or final protective order issued under the provisions of this article; or (2) an order for relief pending a divorce action issued pursuant to section ~~5-509~~ five hundred nine, article five of this chapter; ~~granting the relief pursuant to the provisions of this article~~ (3) a condition of bail pursuant to the provisions of section seventeen-c, article one-c, chapter sixty-two of this code, or (4) a condition of parole or probation which restricts contact between the parolee or probationer and a member of the parolee's or probationer's family pursuant to the provisions of subsection four, section nine or subsection four, section seventeen of article twelve, chapter sixty-two of this code or any arrest or conviction related to violence against a family member or arrest or conviction related to the crime of stalking as defined in section nine-a, article 2, chapter sixty-one of this code is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred fifty dollars nor more than two thousand dollars.
  (b) ~~When a~~ A respondent ~~previously convicted of the offense described in~~ who is convicted of a second or subsequent offense under subsection (a) of this section ~~or who~~ ~~abuses the petitioner~~ or minor children or is physically present at any location in knowing and willful violation of the terms of a temporary or final protective order issued under the provisions of this article, the respondent is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars. ~~or both~~
ARTICLE 28. UNIFORM INTERSTATE ENFORCEMENT OF DOMESTIC VIOLENCE PROTECTION ORDERS ACT.

§48-28-1. Title.
  This article may be cited as the 'Uniform Interstate Enforcement of Domestic Violence Protection Orders Act'.
§48-28-2. Definitions.
  In this article:
  (1) 'Court' means a circuit court, family court or magistrate court which has jurisdiction over domestic violence proceedings pursuant to article twenty-seven of this chapter.
  (2) 'Foreign protection order' means a protection order issued by a tribunal of another state.
  (3) 'Issuing state' means the state whose tribunal issues a protection order.
  (4) 'Mutual foreign protection order' means a foreign protection order that includes provisions in favor of both the protected individual seeking enforcement of the order and the respondent.
  (5) 'Protected individual' means an individual protected by a protection order.
  (6) 'Protection order' means an injunction or other order, issued by a tribunal under the domestic violence, family violence or antistalking laws of the issuing state, to prevent an individual from engaging in violent or threatening acts against, harassment of, contact or communication with, or physical proximity to, another individual.
  (7) 'Protective order' means an order issued pursuant to article twenty-seven of this chapter or to section five hundred nine, article five of this chapter.
  (8) 'Respondent' means the individual against whom enforcement of a protection order is sought.
  (9) 'State' means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band that has jurisdiction to issue protection orders.
  (10) 'Tribunal' means a court, agency or other entity authorized by law to issue or modify a protection order.
§48-28-3. Judicial enforcement of order.
  (a) A person authorized by the law of this state to seek enforcement of a protective order may seek enforcement of a valid foreign protection order in a court of this state. The court shall enforce the terms of the order, including terms that provide relief that a court of this state would lack power to provide but for this section. The court shall enforce the order, whether the order was obtained by independent action or in another proceeding, if it is an order issued in response to a complaint, petition or motion filed by or on behalf of an individual seeking protection. In a proceeding to enforce a foreign protection order, the court shall follow the procedures of this state for the enforcement of protective orders.
  (b) A court of this state may not enforce a foreign protection order issued by a tribunal of a state that does not recognize the standing of a protected individual to seek enforcement of the order.
  (c) A court of this state shall enforce the provisions of a valid foreign protection order which govern custody and visitation if the order was issued in accordance with the jurisdictional requirements governing the issuance of custody and visitation orders in the issuing state or under federal law and with the requirements set out in subsection (d) of this section.
  (d) A foreign protection order is valid if it:
  (1) Identifies the protected individual and the respondent;
  (2) Is currently in effect;
  (3) Was issued by a tribunal that had jurisdiction over the parties and subject matter under the law of the issuing state; and
  (4) Was issued after the respondent was given reasonable notice and had an opportunity to be heard before the tribunal issued the order or, in the case of an order ex parte, the respondent was given notice and has had or will have an opportunity to be heard within a reasonable time after the order was issued, in a manner consistent with the respondent's rights to due process of law.
  (e) A foreign protection order which appears authentic on its face is presumed to be valid.
  (f) Absence of any of the criteria for validity of a foreign protection order is an affirmative defense in an action seeking enforcement of the order.
  (g) A court of this state may enforce provisions of a mutual foreign protection order which favor a respondent only if:
  (1) The respondent filed a written pleading seeking a protection order from the tribunal of the issuing state; and
  (2) The tribunal of the issuing state made specific findings in favor of the respondent.
§48-28-4. Nonjudicial enforcement of order.
  (a) A law-enforcement officer of this state, upon determining that there is probable cause to believe that a valid foreign protection order exists and that the order has been violated, shall enforce the order as if it were a protective order of a court of this state. Presentation of a foreign protective order that identifies both the protected individual and the respondent and that appears, on its face, to be authentic and currently in effect constitutes probable cause to believe that a valid foreign protection order exists. For the purposes of this section, the protection order may be inscribed on a tangible medium or may have been stored in an electronic or other medium if it is retrievable in perceivable form. Presentation of a certified copy of a protection order is not required for enforcement.
  (b) If a foreign protection order is not presented, a law-enforcement officer of this state may consider other credible information in determining whether there is probable cause to believe that a valid foreign protection order exists.
  (c) If a law-enforcement officer of this state determines that an otherwise valid foreign protection order cannot be enforced because the respondent has not been notified or served with the order, the officer shall inform the respondent of the order, make a reasonable effort to serve the order upon the respondent and allow the respondent a reasonable opportunity to comply with the order before enforcing the order.
  (d) Registration or filing of an order in this state is not required for the enforcement of a valid foreign protection order pursuant to this article.
§48-28-5. Registration of order.
  (a) Any individual may register a foreign protection order in this state by:
  (1) Presenting a certified copy of the order to a local office of the West Virginia state police for registration in accordance with the provisions of section eight hundred two, article twenty-seven of this chapter; or
  (2) Presenting a certified copy of the order to the clerk of the court in which enforcement may be sought and request that the order be forwarded to the West Virginia state police for registration in accordance with the provisions of section eight hundred two, article twenty-seven of this chapter.
  (b) An individual registering a foreign protection order shall file an affidavit by the protected individual stating that, to the best of the protected individual's knowledge, the order is currently in effect.
  (c) Upon receipt of a foreign protection order for registration, the local office of the West Virginia state police shall:
  (1) Provide certified copies of the order to any law-enforcement agency within its jurisdiction, including any municipal police office and the office of the sheriff;
  (2) Register the order in accordance with the provisions of this section and of section eight hundred two, article twenty-seven of this chapter;
  (3) Furnish to the individual registering the order a certified copy of the registered order.
  (d) A registered foreign protection order that is shown to be inaccurate or not currently in effect must be corrected or removed from the registry.
  (e) A foreign protection order registered under this article may be entered in any existing state or federal registry of protection orders in accordance with applicable law.
  (f) A fee may not be charged for the registration of a foreign protection order.
§48-28-6. Immunity.
  This state or a local governmental agency, or a law-enforcement officer, prosecuting attorney, clerk of court or any state or local governmental official acting in an official capacity, is immune from civil and criminal liability for an act or omission arising out of the registration or enforcement of a foreign protection order or the detention or arrest of an alleged violator of a foreign protection order if the act or omission was done in good faith in an effort to comply with this article.
§48-28-7. Criminal offenses and penalties.
  (a) A respondent who abuses, as that term is defined in section two hundred two, article twenty-seven of this chapter, a protected individual or who is physically present at any location in knowing and willful violation of the terms of: (1) a valid foreign protection order; (2) a protective order entered in any pending foreign divorce action which enjoins the offending party from molesting or interfering with another party, or interfering with the custodial or visitation rights of the other person; or (3) a condition of bail, parole or probation imposed in any state with regard to cases of crimes against family or household members or in regard to the crime of stalking, when such condition restricts contact between the offender and the victim or between the offender and members of the victim's family or the offender's family is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred fifty dollars nor more than two thousand dollars.
  (b) A respondent who is convicted of a second or subsequent offense under subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars.
§48-28-8. Other remedies.
  A protected individual who pursues remedies under this article is not precluded from pursuing other legal or equitable remedies against the respondent.
§48-28-9. Uniformity of application and construction.
  In applying and construing this act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§48-28-10. Transitional provision.
  This article applies to:
  (a) Foreign protection orders issued before the effective date of this article; and
  (b) Continuing actions for enforcement of foreign protection orders commenced before the effective date of this article. A request for enforcement, made on or after the effective date of this article, of a foreign protective order based on violations which occurred before the effective date of this article is governed by this article."
  The bill was then ordered to third reading.
  The following bills on second reading, coming up in regular order, were each read a second time and ordered to third reading:
  S. B. 356, Relating to insurance company holding systems and federal Gramm-Leach-Bliley Act,
  S. B. 358, Relating to re-domestication of domestic insurance companies
  Com. Sub. for S. B. 364, Strengthening multi-disciplinary treatment team process for children involved in court system,
  Com. Sub. for S. B. 412, Eliminating landlord liability for tenant's delinquent utility accounts; security deposits,
  Com. Sub. for S. B. 432, Deleting provision requiring magistrates to set payment plans in certain cases,
  Com. Sub. for S. B. 453, Establishing domestic violence fatality review team,
  And,
  S. B. 484, Providing for rate regulation of title insurers.
  The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested S. B. 484 be removed from the Consent Calendar and be placed upon the House Calendar.
  S. B. 485, Authorizing insurance commissioner to enter into certain agreements and compromises; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 43. INSURANCE TAX PROCEDURES ACT.
§33-43-4a. Agreements and compromises.
  (a) Prior to commencing any civil action, the commissioner may compromise any claim relating to the liability of a person with respect to any tax, including any surcharge, interest, additional tax, fee, fine or penalty, administered by the commissioner under this chapter for any taxable period. The following conditions apply to any agreement entered into under this subsection:
  (1) The agreement must be in writing;
  (2) In the absence of a showing of fraud, malfeasance or misrepresentation of a material fact, then:
  (A) The agreement shall be final and conclusive;
  (B) The agreement and the matters so agreed upon shall not be reopened or the agreement modified by any officer, employee or agent of this state; and,
  (C) In any civil action or administrative proceeding, the compromise agreement or any determination, assessment, collection, payment, abatement, refund or credit made in accordance therewith may not be annulled, modified, set aside or disregarded.
  (b) The commissioner may compromise all or part of any civil case arising under the provisions of this article. The following conditions apply to any agreement entered into under this subsection:
  (1) Any liability for tax, including any surcharge, interest, additional tax, fee, fine or penalty, may be compromised upon consideration of the terms and conditions of the compromise agreement in light of any or all of the following:
  (A) Doubt as to liability;
  (B) Doubt as to the ability to collect;
  (C) Strength of the taxpayer's defenses to the assessment of the tax, surcharge, interest, additional tax, fee, fine or penalty;
  (D) Age of the dispute;
  (E) The anticipated time and resources which will be required to develop the civil action for adjudication; and
  (F) Any other factors relevant to the determination of whether citizens of the state of West Virginia are best served by entering into a compromise agreement.
  (2) In all matters involving issues in respect of a tax liability in controversy of fifteen thousand dollars or more for one or all of the years involved in claim or case, the commissioner shall seek the written recommendation of the attorney general before entering into the compromise agreement. The written recommendation of the attorney general shall be placed in the commissioner's file.
  (c) Whenever a compromise agreement is made by the commissioner under subsection (a) or (b) of this section, there shall be placed on file in the commissioner's office an opinion from the commissioner's legal counsel. The opinion must include the following:
  (1) The amount of tax, surcharge, additional tax, fee and interest assessed;
  (2) The anticipated fine or penalty imposed by law on the person against whom the tax, surcharge, additional tax, fee and interest was assessed; and
  (3) The amount actually paid in accordance with the terms of the compromise agreement;
  (4) The reasons underlying the decision to enter into a compromise agreement: Provided, That the requirements of this subsection do not apply with respect to any agreement in which the amount of the tax assessed, including any surcharge, interest, additional tax, fee, fine or penalty, is less than one thousand dollars.
  (d) Report to Legislature. -- The commissioner shall submit to the speaker of the House of Delegates, the president of the Senate and the legislative auditor a quarterly report summarizing the issues and amounts of liabilities contained in the agreements and compromises into which he or she has entered pursuant to this section. The report shall be in a form which preserves the confidentiality of the identity of the taxpayers involved in the agreements and compromises. Notwithstanding any other provision of law to the contrary, the agreements and compromises entered into pursuant to this section shall be subject to audit, in their entirety, by the legislative auditor."
  The bill was then ordered to third reading.
  S. B. 488, Establishing minimum surplus for farmers' mutual fire insurance companies; on second reading, coming up in regular order, was read a second time and ordered to third reading.
  Com. Sub. for S. B. 494, Regulating fees between cemeteries, certain companies and veterans for setting grave markers; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, section one, line eleven, by striking out the words "to be" and inserting in lieu thereof the word "as".
  On page three, section two, line twelve, by striking out the words "regional perpetual care fees" and inserting in lieu thereof the words "permanent endowment care fund".
  On page three, section two, line thirteen, following the first word "the", by striking out the word "initial" and inserting in lieu thereof the word "perpetual".
  And,
  On page three, section two, line sixteen, following the word "the", by inserting the word "veteran".
  The bill was then ordered to third reading.
  Com. Sub. for S. B. 628, Requiring farmers' mutual fire insurance companies to write certain percentage in under-served areas; penalty; on second reading, coming up in regular order, was read a second time.
  The Clerk announced that, pursuant to House Rule 70a, Delegate Frich had requested Com. Sub. for S. B. 628 be removed from the Consent Calendar and be placed upon the House Calendar.
  S. B. 654, Extending supervision for certain sex offenders; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, section twenty-five, line six, following the word "chapter", by striking out the word "shall" and inserting in lieu thereof the word "may".
  Delegate Faircloth then moved to amend the bill on page six, section twenty-five, line eighty- two, following the period by inserting a new subsection, designated subsection (g) to read as follows:
  "(g) The court shall further direct the probation officer to notify the family law judge and the family law judge shall give consideration as it relates to the protection of a child or children when a defendant is a petitioner or respondent in matters relating to the issue of visitation or custody. The family law judge may, in his or her discretion, limit or terminate parental custody or visitation when there is a risk of harm to the child."
  On the adoption of the amendment, Delegate Faircloth demanded the yeas and nays, which demand was sustained.
  The yeas and nays having been ordered, they were taken (Roll No. 520), and there were--yeas 34, nays 65, absent and not voting 1, with the yeas and absent and not voting being as follows:
  Yeas: Anderson, Armstead, Ashley, Azinger, Blair, Border, Calvert, Cann, Canterbury, Carmichael, Duke, Ellem, Evans, Faircloth, Fragale, Frich, Hall, Hartman, Hatfield, Howard, Leggett, Louisos, Manuel, Schadler, Sobonya, Spencer, Susman, Talbott, Trump, Wakim, Walters, Webb, G. White and Yost.
  Absent And Not Voting: Coleman.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.
  The bill was then ordered to third reading.
  The House then proceeded to further consideration of Com. Sub. for S. B. 178, relating to subject matter jurisdiction in family courts, having been read a second time in earlier proceedings and postponed until this time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 25. CHANGE OF NAME.

§48-25-101. Petition to circuit court or family court for change of name; contents thereof; notice of application.

  (a) Any person desiring a change of his or her own name, or that of his or her child or ward, may apply therefor to the circuit court or ~~any other court of record having jurisdiction~~ family court of the county in which he or she resides, ~~or the judge thereof in vacation,~~ by petition setting forth:
__(1) ~~that~~ That he or she has been a bona fide resident of ~~such~~ the county for at least one year prior to the filing of the petition,;
__(2) ~~the~~ The cause for which the change of name is sought,; and
  (3) ~~the~~ The new name desired;. ~~and~~
  (b) ~~previous~~ Previous to the filing of ~~such~~ the petition ~~such~~ the person shall cause ~~to be published~~ a notice of the time and place that ~~such~~ the application will be made, ~~which notice shall~~ to be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code,. ~~and the~~ The publication area for ~~such~~ the publication ~~shall be~~ is the county.
CHAPTER 51. COURTS AND THEIR OFFICERS.
ARTICLE 2A. FAMILY COURTS.
§51-2A-2. Family court jurisdiction; exceptions; limitations.
  (a) The family court shall exercise jurisdiction over the following matters:
  (1) All actions for divorce, annulment or separate maintenance brought under the provisions of article three, four or five, chapter forty-eight of this code except as provided in subsections (b) and (c) of this section;
  (2) All actions to obtain orders of child support brought under the provisions of ~~part one, article fourteen, chapter forty-eight of this code~~ articles eleven, twelve and fourteen, chapter forty- eight of this code;
  (3) All actions to establish paternity brought under the provisions of article twenty-four, chapter forty-eight of this code and any dependent claims related to such actions regarding child support, parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child;
  (4) All actions for grandparent visitation brought under the provisions of article ten, chapter forty-eight of this code;
  (5) All actions for the interstate enforcement of family support brought under article sixteen, chapter forty-eight of this code and for the interstate enforcement of child custody brought under the provisions of article twenty, chapter forty-eight of this code;
  (6) All actions for the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child, including actions brought under the uniform child custody jurisdiction and enforcement act, as provided in article twenty, chapter forty- eight of this code;
  (7) All petitions for writs of habeas corpus wherein the issue contested is custodial responsibility for a child;
  (8) All motions for temporary relief affecting parenting plans or other allocation of custodial responsibility or decision-making responsibility for a child, child support, spousal support or domestic violence;
  (9) All motions for modification of an order providing for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child or for child support or spousal support;
  (10) All actions brought, including civil contempt proceedings, to enforce an order of spousal or child support or to enforce an order for a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child;
  (11) All actions brought by an obligor to contest the enforcement of an order of support through the withholding from income of amounts payable as support or to contest an affidavit of accrued support, filed with the circuit clerk, which seeks to collect an arrearage; ~~and~~
  (12) All final hearings in domestic violence proceedings;
  (13) Petitions for a change of name, exercising concurrent jurisdiction with the circuit court;
__(14) All proceedings for payment of attorney fees if the family court judge has jurisdiction of the underlying action;
__(15) All proceedings for property distribution brought under article seven, chapter forty-eight of this code; and
__(16) All proceedings to obtain spousal support brought under article eight, chapter forty-eight of this code.
  (b) If an action for divorce, annulment or separate maintenance does not require the establishment of a parenting plan or other allocation of custodial responsibility or decision-making responsibility for a child and does not require an award or any payment of child support, the circuit court has concurrent jurisdiction with the family court over the action if, at the time of the filing of the action, the parties also file a written property settlement agreement executed by both parties.
  (c) If an action for divorce, annulment or separate maintenance is pending and a petition is filed pursuant to the provisions of article six, chapter forty-nine of this code alleging abuse or neglect of a child by either of the parties to the divorce, annulment or separate maintenance action, the orders of the circuit court in which the abuse or neglect petition is filed shall supercede and take precedence over an order of the family court respecting the allocation of custodial and decision- making responsibility for the child between the parents. If no order for the allocation of custodial and decision-making responsibility for the child between the parents has been entered by the family court in the pending action for divorce, annulment or separate maintenance, the family court shall stay any further proceedings concerning the allocation of custodial and decision-making responsibility for the child between the parents and defer to the orders of the circuit court in the abuse or neglect proceedings.
  (d) A family court is a court of limited jurisdiction. A family court is a court of record only for the purpose of exercising jurisdiction in the matters for which the jurisdiction of the family court is specifically authorized in this section and in chapter forty-eight of this code. A family court may not exercise the powers given courts of record in section one, article five, chapter fifty-one of this code or exercise any other powers provided for courts of record in this code unless specifically authorized by the Legislature. A family court judge is not a 'judge of any court of record' or a 'judge of a court of record' as the terms are defined and used in article nine of this chapter."
  The bill was then ordered to third reading.
  Delegate Staton moved that the constitutional rule requiring the bills on Second Reading, Consent Calendar, to be fully and distinctly read on three different days be dispensed with.
  On this question, the yeas and nays were taken (Roll No. 521-534), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
  S. B. 95, Com. Sub. for S. B. 178, S. B. 341, S. B. 356, S. B. 358, Com. Sub. for S. B. 364, Com. Sub. for S. B. 412, Com. Sub. for S. B. 432, Com. Sub. for S. B. 453, S. B. 485, S. B. 488, Com. Sub. for S. B. 494 and S. B. 654, now on third reading, coming up in regular order, were each read a third time and put upon their passage.
  On the passage of the bills, the yeas and nays were taken (Roll Nos. 535-548), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (S. B. 95, Com. Sub. for S. B. 178, S. B. 341, S. B. 356, S. B. 358, Com. Sub. for S. B. 364, Com. Sub. for S. B. 412, Com. Sub. for S. B. 432, Com. Sub. for S. B. 453, S. B. 485, S. B. 488, Com. Sub. for S. B. 494, and S. B. 654) passed.
  An amendment to the title of S. B. 95, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
  S. B. 95 - "A Bill to amend and reenact sections two, three and four, article seventeen, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the size, weight and load of vehicles; increasing the maximum length and width of certain vehicles; increasing the maximum length of the combination of certain vehicles coupled together; allowing commissioner to increase combination vehicle length; and mandating that the commissioner annually publish a map designating state highways and various maximum vehicle lengths pertinent thereto."
  On motion of Delegate Amores, the title of S. B. 485 was amended to read as follows:
  S. B. 485 - "A Bill to amend article forty-three, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section four-a, relating to the granting of authority to the insurance commissioner to enter into agreements and compromises relating to taxes, interest, penalties and other charges; and imposing conditions upon such authority."
  Delegate Staton moved that Com. Sub. for S. B. 364 take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 549), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Fleischauer.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 364) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence on those bills requiring the same.
  At 12:20 p.m., on motion of Delegate Staton, the House of Delegates recessed until 12:35 p.m., and reconvened at that time.
* * * * * * * * * *
Special Calendar
Unfinished Business
  S. C. R. 34, Requesting Joint Committee on Government and Finance study administration of estates; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  S. C. R. 42, Requesting Joint Committee on Government and Finance study retirement programs for certain employees; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  H. C. R. 50, Naming the bridge crossing the West Fork River at Enterprise in Harrison County, West Virginia, the "Corporal Jerry Lee Halpenny and PFC Michael Alonzo Wells Memorial Bridge"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  H. C. R. 62, Studying if working cooperatively with providers of HUD housing would decrease the unnecessary institutionalization of elderly individuals; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Com. Sub. for H. C. R. 81, Requesting a study of the cost and effectiveness of the medicaid program preferred drug list; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Third Reading
  Com. Sub. for S. B. 206, Authorizing aides to supervise students in in-school suspensions; limitation; on third reading, coming up out of regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 550), and there were--yeas 94, nays 1, absent and not voting 5, with the nays and absent and not voting being as follows:
  Nays: Hrutkay.
  Absent And Not Voting: Coleman, Ferrell, Perry, Shelton and Talbott.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 206) passed.
  An amendment to the title of the bill, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
  Com. Sub. for S. B. 206 - "A Bill to amend and reenact section one, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to compulsory school attendance; technical amendments; home school exemption; amending requirements to qualify for home school exemption; amending assessment requirements of home school exemption; and eliminating exemption relating to residence more than two miles from school or school bus route."
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Com. Sub. for S. B. 340, Permitting county commissions to establish different building requirements in flood-plain for insurance purposes; on third reading, was taken up out of regular order and reported by the Clerk.
  Delegate Beane asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
  Delegates Doyle and Beane moved to amend the bill on page two, line three, following the word "annexation" by striking out the period and inserting in lieu thereof a colon and the words:
  "Provided, That this requirement does not apply when the area to be annexed is exclusively residential."
  On the adoption of the amendment, Delegate Poling demanded the yeas and nays, which demand was sustained.
  The yeas and nays having been ordered, they were taken (Roll No. 551), and there were--yeas 80, nays 19, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Armstead, Browning, Butcher, Duke, Frederick, Hamilton, Iaquinta, Kuhn, Leggett, Martin, Perdue, Poling, Romine, Spencer, R. Thompson, Tucker, Walters, Webb and Yeager.
  Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the amendment was adopted.
  The bill was then read a third time and put upon its passage.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 552), and there were--yeas 90, nays 8, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Caruth, Duke, Evans, Frederick, Manuel, Schadler, Tucker and Yeager.
  Absent And Not Voting: Coleman and Pino.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 340) passed.
  An amendment to the title of the bill, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title of the bill to read as follows:
  Com. Sub. for S. B. 340 - "A Bill to amend and reenact sections three-i and three-v, article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the authority of county commissions; providing for public hearings; requiring approval of annexation plans before election may be held; and permitting county commissions to adopt building codes, develop flood-plain management plans and take other protective measures to reduce flood insurance rates."
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Com. Sub. for S. B. 440, Establishing Contractors Notice and Opportunity to Cure Act; on third reading, was taken up out of regular order and reported by the Clerk.
  At the request of Delegate Amores, and by unanimous consent, further consideration of the bill was then postponed until the completion of all items remaining on the Special Calendar, third reading.
  S. B. 547, Relating to judges and justices and judicial retirement; on third reading, coming up out of regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 553), and there were--yeas 78, nays 21, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Anderson, Armstead, Ashley, Blair, Border, Brown, Calvert, Canterbury, Caputo, Carmichael, Evans, Frich, Hall, Hamilton, Leggett, Overington, Schadler, Schoen, Smirl, Sobonya and Sumner.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 547) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  S. B. 547 - "A Bill to amend and reenact section four, article nine, chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to clarifying that for judicial retirement purposes, prosecutorial service includes certain time served as an elected or appointed prosecuting attorney or assistant prosecuting attorney."
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 554), and there were--yeas 90, nays 9, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Calvert, Canterbury, Caputo, Evans, Hamilton, Louisos, Overington, Smirl and Sobonya.
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 547) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Delegate Perry announced that he was absent when the vote was taken on Roll No. 550, and that had he been present, he would have voted "Yea" thereon.
  Com. Sub. for S. B. 558, Establishing County and Municipal Economic Opportunity Development District Acts; on third reading, coming up out of regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 555), and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Carmichael, Caruth, Duke, Ellem, Frich and Louisos.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 558) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title of the bill to read as follows as follows:
  Com. Sub. for S. B. 558 - "A Bill to amend chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twenty-two; to amend chapter eight of said code by adding thereto a new article, designated article thirty-eight; to amend and reenact section eleven-a, article ten, chapter eleven of said code; and to amend and reenact section nine-f, article fifteen of said chapter, all relating generally to economic development for public purposes; authorizing counties and certain municipalities to create economic opportunity development districts and to use as special district excise tax to finance economic development within the districts; describing purposes for expenditures; providing for notice and hearing; providing for approval by council for community and economic development; establishing a special revenue account; providing for the Legislature's authorization to levy a special district excise tax; describing order or ordinance required to establish district; creating a district board to administer district; authorizing imposition of special district excise tax by order or ordinance; modifying district boundaries; procedures for abolition and dissolution of district; authorizing issuance of bonds or notes to finance development expenditures; providing for administration of special district excise tax by tax commissioner; and exempting certain sales and services in district from consumers sales and service tax."
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 556), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Louisos.
  Absent And Not Voting: Coleman and Leach.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 558) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  S. B. 634, Defining crow as game-bird; on third reading, coming up out of regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 557), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Blair and Faircloth.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 634) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 558), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Blair and Faircloth.
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 634) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  Delegate Carmichael asked and obtained unanimous consent that the remarks of Delegate Frederick regarding gambling addiction be printed in the Appendix to the Journal.
  Delegate Faircloth asked and obtained unanimous consent that his remarks regarding S. B. 654, Extending supervision for certain sex offenders, and third party bad faith claims, be printed in the Appendix to the Journal.
  At 1:15 p.m., on motion of Delegate Staton, the House of Delegates recessed until 4:00 p.m., and reconvened at that time.
* * * * * * * * * *
Afternoon Session
* * * * * * * * * *
Reordering of the Calendar
  Delegate Staton announced that the Committee on Rules had transferred Com. Sub. for S. B. 594, on third reading, House Calendar, to the Special Calendar; S. B. 636, on second reading, House Calendar, to the Special Calendar; and Com. Sub. for S. B. 433, on third reading, Special Calendar, to the House Calendar.
  At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
  Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
  Your Committee on Rules had has under consideration:
  S. C. R. 52, Amending Joint Rule No. 5 of the Joint Rules of the Senate and House of Delegates, relating to bill processing data,
  And reports the same back with the recommendation that it be adopted.
  Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
  Your Committee on Rules had has under consideration:
  H. C. R. 64, Requesting the Joint Committee on Government and Finance to study the feasibility of developing and maintaining a central abuse registry,
  And,
  H. C. R. 65, Requesting the Joint Committee on Government and Finance to study the state's vital statistics system,
  And reports the same back with the recommendation that they each be adopted.
  Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
  Your Committee on the Judiciary has had under consideration:
  Com. Sub. for S. B. 371, Increasing penalty for obtaining money, property and services by false pretenses from persons over certain age,
  And reports the same back, with amendment, with the recommendation that it do pass, as amended.
  At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for S. B. 371) was taken up for immediate consideration, read a first time and then ordered to second reading.
(Speaker Pro Tempore Pino in the Chair)
Special Calendar
Third Reading
  S. B. 52, Eliminating certain bond on out-of-state defendants in automobile accident cases; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 559), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman, Varner, Webster and Yeager.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 52) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 560), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Varner.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 52) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  S. B. 384, Repealing section relating to location of offices of alcohol beverage control administration; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 561), and there were--yeas 88, nays 10, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Armstead, Blair, Calvert, Carmichael, Hamilton, Louisos, Sobonya, Wakim, Walters and Webb.
  Absent And Not Voting: Coleman and Varner.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 384) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  S. B. 400, Allowing insurance commissioner to disclose confidential information in certain cases; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 562), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Varner.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 400) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
(Mr. Speaker, Mr. Kiss, in the Chair)
  Com. Sub. for S. B. 404, Establishing blue and gray inter-modal highway authority; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 563), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 404) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  Com. Sub. for S. B. 405, Changing personal care homes to assisted living residences; extending board; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 564), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 405) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 565), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Ennis.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 405) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  Com. Sub. for S. B. 423, Allowing board of examiners of land surveyors set certain fees by legislative rule; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 566), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 423) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  S. B. 443, Establishing economic and infrastructure projects under development office guidelines; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 567), and there were--yeas 93, nays 6, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Ashley, Blair, Evans, Leggett, Louisos and Schoen.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 443) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  Com. Sub. for S. B. 505, Providing municipal fire chiefs retain rank in certain cases; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 568), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 505) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  Com. Sub. for S. B. 507, Modifying and updating auctioneer licensing requirements; fees; on third reading, coming up in regular order, was reported by the Clerk.
  Delegate Beach asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
  On motion of Delegate Beach, the bill was amended by striking out the committee amendment in its entirety, as adopted on yesterday, thereby restoring the Senate language of the bill.
  On motion of Delegate DeLong, the bill was then amended on page two, by amending the enaction section to read as follows:
  "That sections one, two, three, five, five-a, six, six-a, six-b, six-c, seven, eight, eight-a and nine, article two-c, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted; and that said article be further amended by adding thereto three new sections, designated section five-b, six-d and nine-a, all to read as follows" followed by a colon.
  And,
  On page two, following the article heading, by inserting the following:
"§19-2C-1. Definitions.
  For the purposes of this article:
  (a) The term 'auctioneer' means and includes a person who sells goods or real estate at public auction for another on commission or for other compensation. The term 'auctioneer' does not include: (1) Persons conducting sales at auctions conducted by or under the direction of any public authority or pursuant to any judicial order or direction or to any sale required by law to be at auction; (2) the owner of any real or personal property when personally sold at auction by such owner and such owner has not personally conducted an auction within the previous twelve-month period; (3) persons conducting sales pursuant to a deed of trust or other security agreement; (4) fiduciaries of estates when selling real or personal property of such estate; (5) persons conducting sales on behalf of charitable, religious, fraternal or other nonprofit organizations; and (6) persons properly licensed pursuant to the provisions of article ~~twelve~~ forty, chapter ~~forty-seven~~ thirty of this code when conducting an auction, any portion of which contains any leasehold or any estate in land whether corporeal or incorporeal, freehold or non-freehold, when such person is retained to conduct an auction by a receiver or trustee in bankruptcy, a fiduciary acting under the authority of a deed of trust or will, or a fiduciary of a decedent's estate: Provided, That nothing contained in this article exempts persons conducting sales at public markets from the provisions of article two-a of this chapter, where the sale is confined solely to livestock, poultry and other agriculture and horticulture products.
  (b) The term 'public auction' means any public sale of real or personal property when offers or bids are made by prospective purchasers and the property sold to the highest bidder.
  (c) The term 'commissioner' means the commissioner of agriculture of West Virginia.
  (d) The term 'department' means the West Virginia department of agriculture."
  The bill was then read a third time and put upon its passage.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 569), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Cann and Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 507) passed.
  On motion of Delegate DeLong, the title of the bill was amended to read as follows:
  Com. Sub. for S. B. 507 - "A Bill to amend and reenact sections two, three, five, five-a, six, six-a, six-b, six-c, seven, eight, eight-a and nine, article two-c, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto three new sections, designated sections five-b, six-d and nine-a; and to amend and reenact section five, article forty, chapter thirty of said code, all relating to auctioneers; license requirements; fees; requiring notice of change of address; apprentice sponsorship requirements; reciprocity between states; continuing education requirements; penalties for violating statutory provisions; license revocation; contract requirements; and exemption from real estate license act when conducting auctions of real estate."
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  S. B. 531, Exempting certain lodging franchise assessed fees from consumers sales and service tax; on third reading, coming up in regular order, was reported by the Clerk.
  Delegate Louisos asked unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading, which consent was not given, Delegate Michael objecting.
  Delegate Louisos then so moved.
  The Speaker then put the question, and less than two thirds of the members present not having voted in the affirmative, the motion did not prevail.
  The bill was then read a third time and put upon its passage.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 570), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Cann and Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 531) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  S.B. 531 - "A Bill to amend and reenact sections two and nine, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the consumers sales and service tax; clarifying that payments received by a vendor of tangible personal property as an incentive to sell a greater volume of such tangible personal property under a manufacturer, distributor or other third-party marketing support program, sales incentive program, cooperative advertising agreement or similar type of program or agreement are excepted from the tax; providing an expansion of the current exemption for casual and occasional sales by volunteer fire departments and volunteer school support groups from six to eighteen sales per year; and providing an exemption for certain lodging franchise assessed fees from the consumers sales and service tax."
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Com. Sub. for S. B. 535, Providing mandatory carding for all purchasers of nonintoxicating beer, wine and liquor; liability protection; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 571), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Louisos and Webb.
  Absent And Not Voting: Cann and Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 535) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  S. B. 553, Prohibiting killing bears weighing less than certain amount; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 572), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Evans and Sobonya.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 553) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Com. Sub. for S. B. 594, Increasing membership on public employees insurance agency finance board; on third reading, coming up in regular order, was reported by the Clerk.
  At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was then temporarily passed over.
  S. B. 655, Creating public utilities tax loss restoration fund; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 573), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Frich, Hall and Schoen.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 655) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 574), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 655) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  S. B. 658, Making supplementary appropriation to department of health and human resources, division of human services, James "Tiger" Morton Catastrophic Illness Fund; on third reading, coming up in regular order, was read a third time.
  On the passage of the bill, the yeas and nays were taken (Roll No. 575), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 658) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 576), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 658) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  S. B. 659, Making supplementary appropriation to state board of examiners for licensed practical nurses; on third reading, coming up in regular order, was read a third time.
  On the passage of the bill, the yeas and nays were taken (Roll No. 577), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Manchin.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 659) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 578), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 659) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  S. B. 660, Supplementing, amending, reducing and increasing items from state road fund to department of transportation, division of highways; on third reading, coming up in regular order, was read a third time.
  Delegate Browning requested to be excused from voting on the passage of the bill under the provisions of House Rule 49, stating that his employer was funded by this account.
  The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
  On the passage of the bill, the yeas and nays were taken (Roll No. 579), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 660) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 580), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Hatfield.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 660) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
(Speaker Pro Tempore Pino in the Chair)
  H. B. 3211, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on third reading, coming up in regular order, was read a third time.
  On the passage of the bill, the yeas and nays were taken (Roll No. 581), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3211) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 582), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3211) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  H. B. 3212, Expiring funds to the department of military affairs and public safety -West Virginia state police - surplus real property process fund; on third reading, coming up in regular order, was read a third time.
  On the passage of the bill, the yeas and nays were taken (Roll No. 583), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Duke.
  Absent And Not Voting: Coleman.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3212) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 584), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3212) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
   The House then took up Com. Sub. for S. B. 440, Establishing Contractors Notice and Opportunity to Cure Act, having been reported in earlier proceedings and postponed until this time.
  Delegate Amores asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
  On motion of Delegate Amores, the bill was amended on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
  "That chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended, by adding thereto a new article, designated article eleven-a, to read as follows:
ARTICLE 11A. NOTICE AND OPPORTUNITY TO CURE CONSTRUCTION DEFECTS.
§21-11A-1. Purpose.
  This article is intended to establish procedures for the negotiation of a claim of a construction defect asserted by a claimant against a contractor. The parties to a contract are encouraged to resolve any disagreement concerning the contract short of litigation.
§21-11A-2. Applicability of article.
  This article does not apply to an action:
  (1) Against a contractor for which a claimant, as a consumer, is entitled to a specific remedy pursuant to chapter forty-six-a of this code;
  (2) Against a contractor who is not licensed under the provisions of article eleven of this chapter;
  (3) Demanding damages of five thousand dollars or less;
  (4) Alleging a construction defect that poses an imminent threat of injury to person or property;
  (5) Alleging a construction defect that causes property not to be habitable;
  (6) Against a contractor who failed to provide the notice required by section five or six of this article;
  (7) Against a contractor if the parties to the contract agreed to submit claims to mediation, arbitration or another type of alternative dispute resolution; or
  (8) Alleging claims for personal injury or death.
§21-11A-3. Suit by contractor, perfecting mechanic's lien.
  (a) If a contractor, subcontractor, supplier or design professional files suit against a property owner upon whose property they provided goods or services, this article is not applicable, and a claimant alleging a construction defect may counterclaim or file an independent action, as appropriate.
  (b) Nothing in this article precludes a contractor, subcontractor, supplier or design professional from perfecting a lien in accordance with the provisions of article two, chapter thirty- eight of this code.
§21-11A-4. Applicability of definitions; definitions.
  For the purposes of this article, the words or terms defined in this article, and any variation of those words or terms required by the context, have the meanings ascribed to them in this article. These definitions are applicable unless a different meaning clearly appears from the context.
  (1) 'Action' means any civil action, or any alternative dispute resolution proceeding other than the negotiation required under this article, for damages, asserting a claim for injury or loss to real or personal property caused by an alleged defect arising out of or related to residential improvements.
   (2) 'Claim' means a demand for damages by a claimant based upon an alleged construction defect in residential improvements.
  (3) 'Claimant' means a homeowner, including a subsequent purchaser, who asserts a claim against a contractor concerning an alleged construction defect in residential improvements.
  (4) 'Construction defect' means a deficiency in, or a deficiency arising out of, the design, specifications, planning, supervision or construction of residential improvements that results from any of the following:
  (A) Defective material, products, or components used in the construction of residential improvements;
  (B) Violation of the applicable codes in effect at the time of construction of residential improvements;
  (C) Failure in the design of residential improvements to meet the applicable professional standards of care;
  (D) Failure to complete residential improvements in accordance with accepted trade standards for good and workmanlike construction: Provided, That compliance with the applicable codes in effect at the time of construction is prima facie evidence of construction in accordance with accepted trade standards for good and workmanlike construction, with respect to all matters specified in those codes; or
  (E) Failure to properly oversee, supervise and inspect services or goods provided by the contractor's subcontractor, officer, employee, agent or other person furnishing goods or services.
  (5) 'Contract' means a written contract between a contractor and a claimant by the terms of which the contractor agrees to provide goods or services, by sale or lease, to or for a claimant.
  (6) 'Contractor' means a contractor, licensed under the provisions of article eleven of this chapter, who has entered into a contract directly with a claimant. The term does not include the contractor's subcontractor, officer, employee, agent or other person furnishing goods or services to a claimant.
  (7) 'Day' means a calendar day. If an act is required to occur on a day falling on a Saturday, Sunday, or holiday, the first working day which is not one of these days should be counted as the required day for purposes of this article.
  (8) 'Goods' means supplies, materials or equipment.
  (9) 'Parties' means (A) the claimant, and (B) any contractor, subcontractor, agent or other person furnishing goods or services, and upon whom a claim of an alleged construction defect has been served under this article.
  (10) 'Residential improvements' means: (A) The construction of a residential dwelling or appurtenant facility or utility; (B) an addition to, or alteration, modification or rehabilitation of an existing dwelling or appurtenant facility or utility; or (C) repairs made to an existing dwelling or appurtenant facility or utility. In addition to actual construction or renovation, residential improvements actually added to residential real property include the design, specifications, surveying, planning, goods, services and the supervision of a contractor's subcontractor, officer, employee, agent or other person furnishing goods or services to a claimant.
  (11) 'Services' means the furnishing of skilled or unskilled labor or consulting or professional work, or a combination thereof.
  (12) 'Subcontractor' means a contractor who performs work on behalf of another contractor on residential improvements.
  (13) 'Supplier' means a person who provides goods for residential improvements.
§21-11A-5. Contract for residential improvements; notice.
  (a) Upon entering into a contract for residential improvements, the contractor shall provide notice to the owner of the real property of the right of the contractor, or any subcontractor, supplier, or design professional to offer to cure construction defects before a claimant may commence litigation against the contractor, or a subcontractor, supplier, or design professional. Such notice shall be conspicuous and may be included as part of the underlying contract.
  (b) The notice required by subsection (a) of this section shall be in substantially the following form:
WEST VIRGINIA STATE LAW, AS SET FORTH IN CHAPTER 21, ARTICLE 11A OF THE WEST VIRGINIA CODE, CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY FILE A LAWSUIT FOR DEFECTIVE CONSTRUCTION AGAINST THE CONTRACTOR WHO MADE RESIDENTIAL IMPROVEMENTS TO YOUR PROPERTY. AT LEAST NINETY DAYS BEFORE YOU FILE YOUR LAWSUIT, YOU MUST DELIVER TO THE CONTRACTOR A WRITTEN NOTICE OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE YOUR CONTRACTOR AND ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS THE OPPORTUNITY TO MAKE AN OFFER TO REPAIR OR PAY FOR THE DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER MADE BY THE CONTRACTOR OR ANY SUBCONTRACTORS, SUPPLIERS, OR DESIGN PROFESSIONALS. THERE ARE DEADLINES AND PROCEDURES UNDER STATE LAW, AND FAILURE TO FOLLOW THEM MAY AFFECT YOUR ABILITY TO FILE A LAWSUIT.

§21-11A-6. Contractor notification requirements for a new residential dwelling constructed for sale.

  (a) A contractor who constructs a new residential dwelling shall, at or before the closing of the sale, provide in writing to the initial purchaser of the residence:
  (1) The name, license number, business address, and telephone number of each subcontractor, supplier or design professional who provided goods or services related to the design or construction of the dwelling; and
  (2) A brief description of the goods or services provided by each subcontractor, supplier or design professional identified pursuant to this section.
  (b) At or before the closing of the sale, a notice shall be given to the purchaser that is in substantially the same form as set forth in subsection (b), section five of this article.
§21-11A-7. Prerequisites to commencing an action.
  (a) The procedures contained in this article are exclusive and required prerequisites to commencing a civil action under the West Virginia rules of civil procedure.
  (b) If a claimant files a civil action alleging a construction defect without first complying with the provisions of this article, then on application by a party to the action, the court shall dismiss the action, without prejudice, and the action may not be
refiled until the claimant has complied with the requirements of this article.
§21-11A-8. Notice of claim of construction defect.
  (a) A claimant asserting a claim of a construction defect under this article shall file notice of the claim as provided by this section.
  (b) The notice of claim shall:
  (1) Be in writing and signed by the claimant or the claimant's authorized representative;
  (2) Be delivered by hand, certified mail return receipt requested, or other verifiable delivery service, to the person designated in the contract to receive a notice of claim of a construction defect; if no person is designated in the contract, the notice shall be delivered to the contractor's chief administrative officer; and
  (3) State in detail:
  (A) The nature of the alleged construction defect and a description of the results of the defect;
  (B) A description of damages caused by the alleged construction defect, including the amount and method used to calculate those damages; and
  (C) The legal theory of recovery, i.e., a construction defect, including the causal relationship between the alleged construction defect and the damages claimed.
  (c) In addition to the mandatory contents of the notice of claim as required by subsection (b) of this section, the claimant may submit supporting documentation or other tangible evidence to facilitate the contractor's evaluation of the claimant's claim.
  (d) The notice of claim shall be delivered no later than ninety days prior to filing an action.
§21-11A-9. Service on additional parties.
  Within fourteen days after the initial service of the notice of claim required in subsection (a) of this section, the contractor shall forward a copy of the notice to each subcontractor, supplier, and design professional who the contractor reasonably believes is responsible for a defect specified in the notice and include with the notice a description of the specific defect for which the contractor believes the subcontractor, supplier, or design professional is responsible.
§21-11A-10. Request for Voluntary Disclosure of Additional Information.
  (a) Upon the filing of a claim, parties may request to review and copy relevant information in the possession or custody or subject to the control of the other party that pertains to the alleged construction defect, including, without limitation:
  (1) Reports of outside consultants or experts; or
  (2) Photographs and videotapes.
  (b) Subsection (a) of this section applies to all information in the parties' possession regardless of the manner in which it is recorded, including, without limitation, paper and electronic media.
  (c) The claimant and the contractor may seek additional information directly from third parties.
  (d) Nothing in this section requires any party to disclose the requested information or any matter that is privileged under West Virginia law.
  Within thirty days after service of the notice of claim by the claimant, each contractor, subcontractor, supplier, or design professional that has received a notice of claim shall serve a written response on the claimant, delivered by hand, certified mail return receipt requested, or other verifiable delivery service, directed to the claimant or representative of the claimant who signed the notice of claim of a construction defect. The written response shall:
  (1) Offer to compromise and settle the claim by monetary payment without inspection;
  (2) Propose to inspect the residential improvement that is the subject of the claim; or
  (3) State that the contractor, subcontractor, supplier, or design professional disputes the claim and will neither remedy the alleged construction defect nor compromise and settle the claim.
  (e) If the contractor, subcontractor, supplier, or design professional disputes the claim pursuant to subdivision (3), subsection (d) of this section, and will neither remedy the alleged construction defect nor compromise and settle the claim, or does not respond to the claimant's notice of claim within the time stated in said subsection (d) of this section, the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the notice of claim, without further notice.
  (f) If the claimant rejects the inspection proposal or the settlement offer made by the contractor, subcontractor, supplier, or design professional pursuant to subsection (d) of this section, the claimant shall serve written notice of the claimant's rejection on the contractor, subcontractor, supplier, or design professional. The notice shall include the basis for the claimant's rejection of the contractor, subcontractor, supplier, or design professional's proposal or offer.
  (g) After service of the rejection required by subsection (f) of this section, the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the initial notice of claim without further notice.
  (h) If the claimant elects to allow the contractor, subcontractor, supplier, or design professional to inspect the residential improvement in accordance with the contractor, subcontractor, supplier, or design professional's proposal pursuant to subdivision (2), subsection (d) of this section, the claimant shall provide the contractor, subcontractor, supplier, or design professional and its contractors or other agents reasonable access to the claimant's residence during normal working hours to inspect the premises and the claimed defect to determine the nature and cause of the alleged defects and the nature and extent of any repairs or replacements necessary to remedy the alleged defects.
  (i) Within fourteen days following completion of the inspection, the contractor, subcontractor, supplier, or design professional shall serve on the claimant:
  (1) A written offer to remedy the construction defect at no cost to the claimant, including a report of the scope of the inspection, the findings and results of the inspection, a description of the additional labor and materials necessary to remedy the defect described in the claim, and a timetable for the completion of such construction;
  (2) A written offer to compromise and settle the claim by monetary payment; or
  (3) A written statement that the contractor, subcontractor, supplier, or design professional will not proceed further to remedy the defect.
  (j) If a claimant accepts a contractor, subcontractor, supplier, or design professional's offer made pursuant to subdivisions (1) or (2), subsection (i) of this section, and the contractor, subcontractor, supplier, or design professional does not proceed to make the monetary payment or remedy the construction defect within the agreed timetable, the claimant may bring an action against the contractor, subcontractor, supplier, or design professional for the claim described in the initial notice of claim without further notice.
  (k) If a claimant receives a written statement that the contractor, subcontractor, supplier, or design professional will not proceed further to remedy the defect, the claimant may bring an action against the contractor, subcontractor, supplier, or design profession for the claim described in the initial notice of claim without further notice.
  (l) If the claimant rejects the offer made by the contractor, subcontractor, supplier, or design professional to either remedy the construction defect or to compromise and settle the claim by monetary payment, the claimant shall serve written notice of the claimant's rejection on the contractor, subcontractor, supplier, or design professional. The notice shall include the basis for the claimant's rejection of the contractor, subcontractor, supplier, or design professional's offer. After service of the rejection the claimant may bring an action against contractor, subcontractor, supplier, or design professional for the claim described in the notice of claim without further notice.
  (m) Any claimant accepting the offer of the contractor, subcontractor, supplier, or design professional to remedy the construction defects shall do so by serving the contractor, subcontractor, supplier, or design professional with a written notice of acceptance within a reasonable period of time after receipt of the offer but no later than thirty days after receipt of the offer.
  (n) If a claimant accepts a contractor, subcontractor, supplier, or design professional's offer to repair a defect described in an initial notice of claim, the claimant shall provide the contractor, subcontractor, supplier, or design professional and its contractors or other agents reasonable access to the claimant's residence during normal working hours to perform and complete the construction by the timetable stated in the offer.
  (o) During negotiations under this article, if the running of the applicable statute of limitations would otherwise become a bar to a civil action, service of a claimant's written notice of claim pursuant to this article tolls the applicable statute of limitations until six months after the termination of negotiations under this article.
§21-11A-11. Duty to Negotiate.
  The parties shall negotiate in accordance with the times set forth in section twelve of this article (relating to Timetable) to attempt to resolve all claims. No party is obligated to settle with the other party as a result of the negotiation.
§21-11A-12. Timetable.
  (a) Following receipt of a claimant's notice of claim, the contractor or other designated representative shall review the claimant's claim and initiate negotiations with the claimant to attempt to resolve the claim.
  (b) Subject to subsection (c) of this section, the parties shall begin negotiations within a reasonable period of time, not to exceed thirty days following the date the contractor receives the claimant's notice of claim.
  (c) The parties may conduct negotiations according to an agreed schedule, but must begin negotiations no later than the deadline set forth in subsection (b) of this section.
  (d) Subject to subsection (e) of this section, the parties shall complete the negotiations that are required by this article within ninety days after the contractor receives the claimant's notice of claim.
  (e) The parties may agree in writing to extend the time for negotiations, on or before the ninetieth day after the contractor receives the claimant's notice of claim. The agreement shall be signed by representatives of the parties with authority to bind each respective party and shall provide for the extension of the statutory negotiation period until a date certain. The parties may enter into a series of written extension agreements that comply with the requirements of this section.
§21-11A-13. Conduct of Negotiation.
  Negotiation is a consensual bargaining process in which the parties attempt to resolve the claim. A negotiation under this article may be conducted by any method, technique, or procedure authorized under the contract or agreed upon by the parties, including, without limitation, negotiation in person, by telephone, by correspondence, by video conference, or by any other method that permits the parties to identify their respective positions, discuss their respective differences, confer with their respective advisers, exchange offers of settlement, and settle.
§21-12A-14. Settlement Agreement.
  (a) A settlement agreement may resolve an entire claim or any designated and severable portion of a claim.
  (b) To be enforceable, a settlement agreement must be in writing and signed by representatives of the claimant and the contractor who have authority to bind each respective party.
  (c) A partial settlement does not waive a parties' rights as to the parts of the claims that are not resolved.
§21-12A-15. Costs of Negotiation.
  Unless the parties agree otherwise, each party shall be responsible for its own costs incurred in connection with a negotiation, including, without limitation, the costs of attorney's fees, consultant's fees and expert's fees.
§21-12A-16. Commencement of action.
  If a claim for a construction defect is not resolved in its entirety through negotiation in accordance with this article on or before the ninetieth day after the contractor receives the notice of claim, or after the expiration of any extension agreed to by the parties, the claimant may commence an action.
§21-11A-17. Additional construction defects; additional notice of claim.
  A construction defect which is discovered after a claimant has provided a contractor with the original notice of claim is subject to the notice requirements and timetable of this article."
  The bill was then read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 585), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Caputo.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 440) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Second Reading
  Com. Sub. for S. B. 151, Relating to reorganizing executive branch of government; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on Finance, was reported by the Clerk, on page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That articles one-b and one-c, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that sections nine, ten and eleven, article seven, chapter five-a of said code be repealed; that article three, chapter five-f of said code be repealed; that sections one and two, article one, chapter five-a of said code be amended and reenacted; that said article be further amended by adding thereto three new sections, designated sections two-a, three-a and three-b; that sections one, two, three, four, five, six, seven and eight of article seven of said chapter be amended and reenacted; that section two, article one, chapter five-f of said code be amended and reenacted; and that section two-a, article seven, chapter six of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF FINANCE AND ADMINISTRATION.
ARTICLE 1. DEPARTMENT OF FINANCE AND ADMINISTRATION.
§5A-1-1. Definitions.
  For the purpose of this chapter:
  (a) 'Commodities' means supplies, material, equipment, contractual services and any other articles or things used by or furnished to a department, agency or institution of state government.
  (b) 'Contractual services' shall include telephone, telegraph, electric light and power, water and similar services.
  (c) 'Director' means the director of the division referred to in the heading of the article in which the word appears.
  (d) 'Expendable commodities' means those commodities which, when used in the ordinary course of business, will become consumed or of no market value within the period of one year or less.
  (e) 'Nonprofit workshops' means an establishment: ~~(a)~~ (1) Where any manufacture or handiwork is carried on; ~~(b)~~ (2) which is operated either by a public agency or by a cooperative or by a nonprofit private corporation or nonprofit association, in which no part of the net earnings thereof inures, or may lawfully inure, to the benefit of any private shareholder or individual; ~~(c)~~ (3) which is operated for the primary purpose of providing remunerative employment to blind or severely disabled persons who cannot be absorbed into the competitive labor market; and ~~(d)~~ (4) which shall be approved, as evidenced by a certificate of approval, by the state board of vocational education, division of vocational rehabilitation.
  (f) 'Printing' means printing, binding, ruling, lithographing, engraving and other similar services.
  (g) 'Removable property' means any personal property not permanently affixed to or forming a part of real estate.
  (h) 'Secretary' means the secretary of finance and administration. ~~as used in article two of this chapter, the director of the budget~~ All references to the secretary of administration or the secretary of tax and revenue as used in this code shall be construed to mean the secretary of finance and administration.
__(i) 'Spending officer' means the executive head of a spending unit or a person designated by him.
  (j) 'Spending unit' means a department, agency or institution of the state government for which an appropriation is requested or to which an appropriation is made by the Legislature.
§5A-1-2. Department of finance and administration and office of secretary; transfers of funds; transition; savings provision; office of technology.

  (a) There is hereby created within the executive branch of state government a department of finance and administration and the office of secretary of the department of finance and administration, effective the first day of July, two thousand and three. The secretary is the chief executive officer of the department and director of the budget and shall be appointed by the governor, with the advice and consent of the Senate, and serves at the will and pleasure of the governor.
  (b) The department of administration, the office of the secretary of the department of administration, the department of tax and revenue and the office of secretary of the department and tax and revenue are abolished effective the first day of July, two thousand three.
  (c) All duties of the secretary of the department of administration and the secretary of the department of tax and revenue are hereby vested in the secretary of the department of finance and administration. All records, responsibilities, obligations, assets and property, of whatever kind and character, of the department of tax and revenue and the department of administration are transferred to the department of finance and administration. The balances of all funds of the department of administration and the department of tax and revenue are transferred to the department of finance and administration. The department of finance and administration is hereby authorized to receive federal funds.
  (d) On the effective date of this section, the secretary of the department of administration and the secretary of the department of tax and revenue are authorized to undertake any actions as are reasonably required for an orderly transition. Upon the transfer of the functions of the department of administration and the department of tax and revenue to the department of finance and administration, the secretary of the department of finance and administration is empowered to authorize transfers of program funds as are necessary to facilitate an orderly transfer of functions. Authority to make transfers pursuant to this subsection expires on the thirtieth day of June, two thousand four.
  (e) All orders, determinations, rules, permits, grants, contracts, certificates, licenses, waivers, bonds, authorizations and privileges which have been issued, made, granted or allowed to become effective by the governor, any state department or agency or official thereof, or by a court of competent jurisdiction, in the performance of functions which have been transferred to the secretary or to the department, and were in effect on the date the transfer occurred continue in effect, for the benefit of the department, according to their terms until modified, terminated, superseded, set aside, or revoked in accordance with the law by the governor, the secretary, or other authorized official, a court of competent jurisdiction, or by operation of law.
  (f) Any proceedings, including notices of proposed rulemaking, or any application for any license, permit, certificate, or financial assistance pending before any department, division or other office, functions of which were transferred to the department of finance and administration are not affected by the transfer. Orders issued in any proceedings continue in effect until modified, terminated, superseded, or revoked by the governor, the secretary, by a court of competent jurisdiction, or by operation of law. Nothing in this subsection prohibits the discontinuance or modification of any proceeding under the same terms and conditions and to the same extent that proceeding could have been discontinued or modified if the department had not been created or if functions or offices had not been transferred to the department. The creation of the department of finance and administration and the subsequent transfer of functions do not affect suits commenced prior to the effective date of the creation by or against any department, division, office or officer and in all such suits, proceedings shall be had, appeals taken and judgments rendered in the same manner and with like effect as if the creation or transfer had not occurred, except that the secretary of the department of finance and administration or other officer may, in an appropriate case, be substituted or added as a party.
  (g) Beginning with the legislative interim meetings in May, two thousand three, and continuing throughout the interim period ending in January two thousand four, the secretary shall present a monthly report to the joint committee on government operations, setting forth the progress of the reorganization, including the elimination of positions, the restructuring of duties, the cost and terms of employment of consultants, the creation of management positions and the associated salaries, and the overall cost savings to the state, and setting forth any recommendations for further reorganization requiring legislative action, together with drafts of any recommended legislation. On or before Wednesday of the week immediately preceding each monthly legislative interim meeting, the secretary shall deliver the report in writing to the joint committee on government operations and to the joint committee on government and finance.
§5A-1-2a. Continuation of department.
  The department of finance and administration shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand five, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§5A-1-3a. Working capital fund.
  (a) The department of finance and administration shall have a working capital fund, which is hereby created in the state treasury. Amounts in this fund are available for expenses of operating and maintaining common administrative services of the department that the secretary decides may be carried out more advantageously and more economically as central services.
  (b) Amounts in the fund remain available until expended. Amounts may be appropriated to the fund.
  (c) The fund consists of:
  (1) Amounts appropriated to the fund;
  (2) To the extent transferred to the fund by the secretary, the reasonable value of supply inventories, equipment and other assets and inventories on order for providing services out of amounts in the fund, less related liabilities and unpaid obligations;
  (3) Amounts received from the sale or exchange of property;
  (4) Payments received for loss or damage of property of the fund.
  (d) The fund shall be reimbursed, or credited with advance payments from amounts available to the department or from other sources, for supplies and services at rates that will equal the expenses of operation, including the depreciation of plant and equipment. Amounts the secretary decides are in excess of the needs of the fund shall be deposited at the end of each fiscal year in the general revenue funds as miscellaneous receipts.
§5A-1-3b. Confidentiality of information.
  (a) Information provided to secretary under expectation of confidentiality. -- Information that would be confidential under the laws of this state when provided to a division, agency, board, commission or office within the department of finance and administration shall be confidential when that information is provided to the secretary of the department of finance and administration, or to an employee in the office of the secretary. Thereafter, the confidential information may be disclosed only: (1) To the applicable division, agency, board or commission of the department to which the information relates; or (2) in the manner authorized by provisions of this code applicable to that division, agency, board or commission. This confidentiality rule is a specific exemption from disclosure under article one, chapter twenty-nine-b of this code;
  (b) Interdepartment communication of confidential information. -- Notwithstanding any provision of this code to the contrary, information that by statute is confidential in the possession of any division, agency, board, commission or office of the department of finance and administration may be disclosed to the secretary, or an employee in the office of the secretary, who must safeguard the information and may not further disclose the information except under the same conditions, restrictions and limitations applicable to the administrator of the division, agency, board, commission or office of the department in whose hands the information is confidential: Provided, That nothing contained in this section shall be construed to require the disclosure to the secretary or to an employee in the office of the secretary of individually identifiable health care or other information that, under federal law, may not be disclosed by the administration without subjecting the administrator or the agency, board or commission to sanctions or other penalties by the United States or any agency thereof. This confidentiality rule is a specific exemption from disclosure under article one, chapter twenty-nine-b of this code.
ARTICLE 7. OFFICE OF TECHNOLOGY.
§5A-7-1. Findings and purposes.
  The Legislature finds and declares that a unified information technology system is essential to the efficient and effective operation of state government and that the management goals and purposes of government are furthered by the development of compatible, integrated, linked information systems across state government. Therefore, it is the purpose of this article to create the technology office within the department of finance and administration with the authority to set, direct and approve all information technology policies, standards, structure and expenditures for all state spending units on their information systems and information technology equipment in the various state agencies, to promulgate standards in the utilization of information technology equipment and related services and to promote quality service and cost effective and efficient operation of all branches of state government.
§5A-7-2. Office created; chief information officer; qualifications; use of facilities; rules.
  There is hereby created the office of technology within the department of finance and administration. The chief information officer shall be appointed by and serve at the will and pleasure of the governor. The chief information officer shall report to the secretary of finance and administration. The chief information officer shall have knowledge in the field of information technology, experience in the design and management of information systems and an understanding of the special demands upon government with respect to budgetary constraints, the protection of privacy interests and federal and state standards of accountability. The information services and communications division of the department of administration, heretofore created, is hereby transferred to and incorporated within the office of technology within the department of finance and administration. The facilities and resources of the office shall be available, subject to rules established by the secretary, to the legislative, executive and judicial branches of state government. The rules shall be promulgated in accordance with the provisions of article three, chapter twenty- nine-a of this code.
§5A-7-3. Definitions.

As used in this article:

  (a) 'Chief information officer' means the person holding the position created in section two of this article and vested with authority to set, direct and approve all information technology policies standards, structure and expenditures and also to establish, develop, improve, set and approve information technology equipment functions for all state spending units on their information systems that provide cost effectiveness and efficiency to the individual state spending units and further the overall management goals and purposes of government;
  (b) 'Director of operations' means the director of the operations section of the office of technology providing mainframe, computing and internet application development and maintenance, the network and application hosting, data hosting, maintenance and recovery, networking and infrastructure and training center services and any other services created or deleted at the discretion of the chief information officer within the office of technology;
  (c) 'Director of policy oversight' means the director of the policy oversight section of the office of technology providing strategic planning, security, compliance and disaster recovery services and any other services created or deleted at the discretion of the chief information officer within the office of technology;
  (d) 'Director of process oversight' means the director of the process oversight section of the office of technology providing budgeting, project oversight, performance measurement and business process reengineering services and any other services created or deleted at the discretion of the chief information officer within the office of technology;
  (e) 'Information systems means computer-based information equipment and related services designed for the automated transmission, storage, manipulation and retrieval of data by electronic or mechanical means;
  (f) 'Information technology' means data processing and telecommunications hardware, software, services, supplies, personnel, maintenance and training and includes the programs and routines used to employ and control the capabilities of data processing hardware;
  (g) 'Information technology equipment' means any equipment, interconnected systems or subsystems of equipment the principal function of which is the automatic acquisition, storage, manipulation, processing, interchange, transmission or reception of data or information, including all computers with a human interface; computer peripherals which will not operate unless connected to a computer or network; voice, video and data networks; and ancillary software, hardware and related resources;
  (h) 'Related services' include feasibility studies, systems design, software development and time-sharing services whether provided by state employees or others;
  (i) 'Office' means the office of technology within the department of finance and administration and headed by the chief information officer as established in section two hereof;
  (j) 'Secretary' means the secretary of the department of finance and administration;
  (k) 'Telecommunications' means any transmission, emission or reception of signs, signals, audio, writings, data, images, video voice or sounds of intelligence of any nature by wire, radio or other electromagnetic or optical systems. The term includes all facilities and equipment performing those functions that are owned, leased or used by the executive agencies of state government; and
  (l) 'Experimental program to stimulate competitive research' (EPSCoR) means the West Virginia component of the national EPSCoR program which is designed to improve the competitive research and development position of selected states through investments in academic research laboratories and laboratory equipment. The recognized West Virginia EPSCoR, which is part of the department of finance and administration's office of technology, is the responsible organization for the coordination and submission of proposals to all federal agencies participating in the EPSCoR program.
§5A-7-4. Powers and duties; telecommunications service; professional staff.
  (a) With respect to all state spending units, the office of technology, at the direction of the chief information officer, shall:
  (1) Develop an organized approach to statewide information resource management, including, but not limited to, information systems, information technology and information technology equipment;
  (2) Direct the director of operations to provide technical assistance to the administrators of the various state spending units in the design and management of information systems;
  (3) Direct the director of operations, the director of policy oversight and director of process oversight to continually evaluate the economic justification, system design and suitability of information technology equipment and related services and review and make recommendations to the chief information officer whether to approve or deny the purchase, lease or acquisition of information equipment and contracts for related services by the state spending units;
  (4) Approve all expenditures for information systems, information technology and information technology equipment.;
  (5) Develop a mechanism for identifying those instances where systems of paper forms should be replaced by direct use of information technology equipment and those instances where applicable state or federal standards of accountability demand retention of some paper processes and implementing programs to further these goals;
  (6) Develop a mechanism for identifying those instances where information systems should be linked, integrated and information shared, while also providing appropriate limitations on access and the security of information and implementing programs to further these goals;
  (7) Develop, research and implement new technologies to be used in state government, convene and organize conferences and work with other state agencies to develop incentive packages encouraging the utilization of technology;
  (8) Provide technical services and assistance to the various state spending units with respect to developing and improving data processing and telecommunications functions. The office shall provide training and direct data processing services to the various state agencies;
  (9) Assess each state spending unit for the cost of any evaluation performed by the operations, policy oversight and process oversight sections of the division and any and all services, training, data processing services and technical assistance performed and provided by the office under the provisions of this section, including, but not limited to, the economic justification, system design and the suitability of equipment and systems used by the state spending unit;
  (10) Award grants, from funds available for that purpose, to businesses that are exempt from income tax under section 501(c)(3) or (4) of the United States Internal Revenue Code of 1986, as amended, to further the purposes of this article; and
  (11) Engage in any other activities as directed by the secretary of finance and administration or by the governor.
  (b) With respect to executive agencies and, where indicated, to nonexecutive agencies, the chief information officer shall:
  (1) Develop a unified and integrated structure for information systems for all executive agencies and nonexecutive agencies;
  (2) Establish, based on need and opportunity, priorities and time lines for addressing the information systems and technology requirements of the various executive agencies of state government;
  (3) Exercise authority inherent to the chief executive of the state as the governor may, by executive order, delegate to overrule and supersede decisions made by the administrators of the various executive agencies of government with respect to the design and management of information systems and approval of the purchase, lease or acquisition of information systems, information technology or information technology equipment and contracts for related services;
  (4) Draw upon staff of other executive agencies for advice and assistance in the formulation and implementation of administrative and operational plans and policies; and
  (5) Recommend to the governor transfers of information technology equipment, ownership of hardware, contracts, software licenses and human resources from any executive or nonexecutive agency and the most cost-effective and efficient uses of the fiscal resources of executive agencies, to consolidate or centralize information-processing operations.
  (c) The chief information officer may employ:
  (1) A director of operations;
  (2) A director of policy oversight;
  (3) A director of process oversight; and
  (4) All other personnel necessary to carry out the work of the office and may approve reimbursement of costs incurred by employees to obtain education and training.
  (d) All fees collected by the chief information officer shall be deposited in a special account in the state treasury to be known as the "Office of Technology Fund". Expenditures from the fund shall be made by the chief information officer for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two of this chapter. Amounts collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.
  (e) The chief information officer shall report quarterly to the joint committee on government and finance on all assessments made pursuant to subsection (b) of this section.
  (f) The chief information officer shall oversee the state's unified telecommunications network and all telecommunications service to the state and maintain the accounting system for such system.
  (g) On or before the first day of November, two thousand three, the chief information officer shall develop a plan related to the West Virginia network for educational telecomputing's (WVNET) connection and relationship to the office.
§5A-7-5. Notice of procurements by state spending units required to make purchases through the state purchasing division.

  Any state spending unit that is required to submit a request to the state purchasing division prior to purchasing goods or services shall notify the chief information officer, in writing, at the same time it submits its request for proposal to the state purchasing division, of any proposed purchase of goods or services related to its information systems and telecommunication systems. The notice shall contain a brief description of the goods and services to be purchased.
§5A-7-6. Notice of procurements by state spending units exempted from submitting purchases to the state purchasing division.

  (a) Any state spending unit that is not required to submit a request for proposal to the state purchasing division prior to purchasing goods or services shall notify the chief information officer, in writing, of any proposed purchase of goods or services related to its information or telecommunication systems. The notice shall contain a detailed description of the goods and services to be purchased. The state spending unit shall provide the notice to the chief information officer a minimum of twenty days prior to the time it requests bids on the provision of the goods or services.
  (b) If the chief information officer evaluates the suitability of the information technology and telecommunication equipment and related services under the provisions of section four of this article and determines that the goods or services to be purchased are not suitable, he or she shall, within ten days of receiving the notice from the state spending unit, notify the state spending unit, in writing, of any recommendations he or she has regarding the proposed purchase of the goods or services. If the state spending unit receives a written notice from the chief information officer within the time period required by this section, the state spending unit shall not put the goods or services out for bid less than thirty days following receipt of the notice from the chief information officer.
§5A-7-7. Biannual report.
  The chief information officer shall report biannually to the legislative joint committee on government and finance on the activities of the office of technology within the department of finance and administration.
§5A-7-8. Exemptions.
  The provisions of this article do not apply to the Legislature or the judiciary.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.

ARTICLE 1. GENERAL PROVISIONS.

§5F-1-2. Executive departments created; offices of secretary created.

  (a) There are created and continued, within the executive branch of the state government, the following departments:
  (1) Department of finance and administration;
  (2) Department of education and the arts;
  (3) Department of environmental protection;
  (4) Department of health and human resources;
  (5) Department of military affairs and public safety; and
__~~(6) Department of tax and revenue; and~~
  ~~(7)~~ (6)Department of transportation.
  (b) Each department will be headed by a secretary appointed by the governor with the advice and consent of the Senate. Each secretary serves at the will and pleasure of the governor.
  (c) Effective the first day of July, two thousand two, the department of tax and revenue and the agencies, offices, boards and commissions within the department and the department of administration and the agencies, offices, boards and commissions within the department are transferred to the department of finance and administration, pursuant to section two, article one, chapter five-a of this code.
CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.

§6-7-2a. Terms of certain appointive state officers; appointment; qualifications; powers and salaries of such officers.

  (a) Each of the following appointive state officers named in this subsection shall be appointed by the governor, by and with the advice and consent of the Senate. Each of the appointive state officers serves at the will and pleasure of the governor for the term for which the governor was elected and until the respective state officers' successors have been appointed and qualified. Each of the appointive state officers are subject to the existing qualifications for holding each respective office and each has and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each office.
  Prior to the first day of July, two thousand one, each such named appointive state officer shall continue to receive the annual salaries they were receiving as of the effective date of the enactment of this section in two thousand one, and thereafter, notwithstanding any other provision of this code to the contrary, the annual salary of each named appointive state officer shall be as follows:
  Administrator, division of highways, ninety thousand dollars; administrator, state tax division, sixty-five thousand dollars; administrator, division of corrections, seventy-five thousand dollars; administrator, division of natural resources, seventy thousand dollars; superintendent, state police, seventy-five thousand dollars; administrator, lottery division, seventy-five thousand dollars; director, public employees insurance agency, seventy-five thousand dollars; administrator, division of banking, ~~sixty~~ seventy-five thousand dollars; administrator, division of insurance, ~~sixty~~ seventy- five thousand dollars; administrator, division of culture and history, fifty-five thousand dollars; administrator, alcohol beverage control commission, seventy thousand dollars; administrator, division of motor vehicles, seventy thousand dollars; director, division of personnel, fifty-five thousand dollars; adjutant general, seventy-five thousand dollars; chairman, health care authority, seventy thousand dollars; members, health care authority, sixty thousand dollars; director, human rights commission, forty-five thousand dollars; administrator, division of labor, sixty thousand dollars; administrator, division of veterans' affairs, forty-five thousand dollars; administrator, division of emergency services, forty-five thousand dollars; members, board of parole, forty-five thousand dollars; members, employment security review board, seventeen thousand dollars; members, workers' compensation appeal board, seventeen thousand eight hundred dollars; administrator, bureau of employment programs, seventy thousand dollars; administrator, bureau of commerce, seventy thousand dollars; administrator, bureau of environment, seventy thousand dollars; and director, office of miner's health, safety and training, sixty-five thousand dollars. Secretaries of the departments shall be paid an annual salary as follows: Health and human resources, ninety thousand dollars; transportation, seventy-five thousand dollars; ~~tax and revenue, seventy-five thousand dollars~~; military affairs and public safety, seventy-five thousand dollars; ~~administration, seventy-five thousand dollars;~~ education and the arts, seventy-five thousand dollars; and environmental protection, seventy-five thousand dollars.
  (b) Each of the state officers named in this subsection shall continue to be appointed in the manner prescribed in this code and, prior to the first day of July, two thousand two, each of the state officers named in this subsection shall continue to receive the annual salaries he or she was receiving as of the effective date of the enactment of this section in two thousand two and shall thereafter, notwithstanding any other provision of this code to the contrary, be paid an annual salary as follows:
  Administrator, division of risk and insurance management, fifty-five thousand dollars; director, division of rehabilitation services, sixty thousand dollars; executive director, educational broadcasting authority, sixty thousand dollars; secretary, library commission, sixty-seven thousand dollars; director, geological and economic survey, fifty-two thousand five hundred dollars; executive director, prosecuting attorneys institute, sixty thousand dollars; executive director, public defender services, sixty thousand dollars; commissioner, bureau of senior services, seventy thousand dollars; director, state rail authority, fifty-five thousand dollars; executive secretary, women's commission, thirty-one thousand dollars; director, hospital finance authority, twenty-six thousand dollars; member, racing commission, twelve thousand dollars; chairman, public service commission, seventy thousand dollars; and members, public service commission, seventy thousand dollars.
  (c) Beginning the first day of July, two thousand three, the secretary of the department of finance and administration, who is the successor to the secretary of administration and the secretary of tax and revenue, which positions cease to exist on the first day of July, two thousand three, shall be paid an annual salary of ninety thousand dollars.
__~~(c)~~(d) No increase in the salary of any appointive state officer pursuant to this section shall be paid until and unless the appointive state officer has first filed with the state auditor and the legislative auditor a sworn statement, on a form to be prescribed by the attorney general, certifying that his or her spending unit is in compliance with any general law providing for a salary increase for his or her employees. The attorney general shall prepare and distribute the form to the affected spending units.
  (e) The amendment and reenactment of this section in the year two thousand three shall become effective the first day of July, 2003."
  On motion of Delegate Michael, the amendment was amended on page six, section two, line fourteen, following the word "in" by striking out the word "May" and inserting in lieu thereof the word "July".
  And,
  On page twenty-one, section two, line nineteen, following the word "thousand" by striking out the word "two" and inserting in lieu thereof the word "three".
  Delegate Tucker requested that he be shown as voting "Nay" on the adoption of the amendment to the amendment.
  The question being on the adoption of the committee amendment, as amended, the same was put and prevailed.
  The bill was then ordered to third reading.
  Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
  Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
  On this question, the yeas and nays were taken (Roll No. 586), and there were--yeas 69, nays 30, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Anderson, Armstead, Azinger, Blair, Border, Calvert, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Wakim, Walters and Webb.
  Absent And Not Voting: Coleman.
  So, four fifths of the members present not having voted in the affirmative, the constitutional rule was not dispensed with.
  S. B. 352, Reenacting jobs act; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on Finance, was reported by the Clerk, on page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 1C. WEST VIRGINIA JOBS ACT.
§21-1C-2. Definitions.
  As used in this article:
  (1) The term 'construction project' means any construction, reconstruction, improvement, enlargement, painting, decorating or repair of any public improvement let to contract in an amount equal to or greater than ~~five hundred thousand~~ one million dollars. The term 'construction project' does not include temporary or emergency repairs;
  (2) (A) The term 'employee' means any person hired or permitted to perform hourly work for wages by a person, firm or corporation in the construction industry;
  (B) The term 'employee' does not include:
  (i) Bona fide employees of a public authority or individuals engaged in making temporary or emergency repairs;
  (ii) Bona fide independent contractors; or
  (iii) Salaried supervisory personnel necessary to assure efficient execution of the employee's work;
  (3) The term 'employer' means any person, firm or corporation employing one or more employees on any public improvement and includes all contractors and subcontractors;
  (4) The term 'local labor market' means every county in West Virginia and all counties bordering West Virginia that fall within seventy-five miles of the border of West Virginia;
  (5) The term 'public authority' means any officer, board, commission or agency of the state of West Virginia and its subdivisions, ~~excluding~~ including counties and municipalities. Further, the economic grant committee, economic development authority, infrastructure and jobs development council and school building authority shall be required to comply with the provisions of this article for loans, grants or bonds provided for public improvement construction projects; ~~Provided,~~ That any project initiated by a county or local economic development authority and which is under the effective management of the county or local economic development authority shall not be included in this requirement
  (6) The term 'public improvement' includes the construction of all buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports and all other structures that may be let to contract by a public authority, excluding improvements funded, in whole or in part, by federal funds.
§21-1C-3. Legislative findings; statement of policy.
  The Legislature finds that the rate of unemployment in this state is significantly higher than that of most other states and that a majority of West Virginia counties are designated as labor surplus areas by the United States department of labor.
  The Legislature finds that the employment of persons from outside the local labor market on public improvement construction projects contracted for and subsidized by the taxpayers of the state contributes significantly to the rate of unemployment and the low per capita income among qualified state residents who would otherwise be hired for these jobs.
  Therefore, the Legislature declares that residents of local labor markets should be employed ~~and given preference in hiring~~ for the construction of public improvement projects which ~~depend, in whole or in part, on state~~ directly utilize taxpayer funding, in whole or in part.

§21-1C-4. Local labor market utilization on public improvement construction projects; waiver certificates.

  (a) Employers shall hire at least seventy-five percent of employees for public improvement construction projects from the local labor market, to be rounded off, with at least two employees from outside the local labor market permissible for each employer per project. ~~Employees shall have resided in the local labor market for at least six months prior to their application for employment.~~
  (b) Any employer unable to employ the minimum number of employees from the local labor market shall inform the nearest office of the bureau of employment programs' division of employment services of the number of qualified employees needed and provide a job description of the positions to be filled.
  (c) If, within three business days following the placing of a job order, the division is unable to refer any qualified job applicants to the employer or refers less qualified job applicants than the number requested, then the division shall issue a waiver to the employer stating the unavailability of applicant and shall permit the employer to fill any positions covered by the waiver from outside the local labor market. The waiver shall be either oral or in writing and shall be issued within the prescribed three days. A waiver certificate shall be sent to both the employer for its permanent project records and to the public authority.
§21-1C-5. Applicability and scope of article; reporting requirements.
  (a) This article applies to expenditures for construction projects by any public authority for public improvements as defined by this article.
  (b) For public improvement projects let pursuant to this article, the public authority shall file, or require an employer as defined in section two of this article to file, with the division of labor copies of the waiver certificates and certified payrolls, pursuant to article five-a of this chapter, or other comparable documents that include the number of employees, the county and state wherein the employees reside and their occupation.
  (c) The division of labor shall compile the information required by this section and submit it to the joint committee on government and finance by the fifteenth day of October, two thousand ~~two~~ five, for a legislative audit to be prepared for the December, two thousand ~~two~~ five, interim session. Beginning with the legislative interim meetings in May, two thousand three, and continuing through the interim period ending in November, two thousand five, the division of labor shall provide quarterly reports to the joint committee on government and finance on the information compiled pursuant to this article. The joint committee may forward these reports to the legislative auditor to review and make comments regarding the usefulness of the information collected and to suggest changes to the division's method of reporting to ensure the information collected will prove useful in evaluating the effectiveness of the provisions of this article.
  (d) Each public authority has the duty to implement the reporting requirements of this article. Every public improvement contract or subcontract let by a public authority shall contain provisions conforming to the requirements of this article.
  (e) The division of labor is authorized to establish procedures for the efficient collection of data, collection of civil penalties prescribed in section six and transmittal of data to the joint committee on government and finance.
§21-1C-7. Effective date.
  This article is effective from passage through the fifteenth day of March, two thousand six."
  Delegate Overington moved to amend the amendment on page five, section seven, line twenty-two, by striking out all of section seven and inserting in lieu thereof the following:

"§21-1C-7. Jobs impact statements upon proposed legislation; legislative findings; persons empowered to request jobs impact statement; preparation by West Virginia development offices; time limitations.

  (a) The Legislature finds that, in order to maintain and create an economic climate which will sustain and promote the creation and retention of jobs in the state of West Virginia and provide for employment opportunities for as many citizens as possible, it is important to understand the jobs impact of acts of the Legislature. The Legislature further finds that without appropriate information it may enact legislation that would adversely affect employment in the state.
  (b) Upon written request by the governor or the presiding officer of either house of the Legislature, proposed legislation which has an impact on the state's economy shall be reviewed by the West Virginia development office, which shall prepare a jobs impact statement. The request shall be accompanied by ten copies of the proposed legislation. In preparing a jobs impact statement, the director of the West Virginia development office may seek assistance or data from, or contract with, any organization or state agency which may facilitate the compilation of the jobs impact statement. Any state agency shall provide requested information within ten days from the date of the request.
  (c) The West Virginia development office shall return a jobs impact statement to the requesting party within twenty days of the date of the original request.
§21-1C-8. Contents of the jobs impact statement; explanations required for omissions.
  (a) General rule. -- The jobs impact statement, using generally accepted methodology, shall detail both short-term and long-term job effects of the proposed legislation and shall include, but is not limited to, the following information:
  (1) A determination of the probable result of the legislation in terms of the number of West Virginia jobs which will be created, retained or eliminated;
  (2) A statement of the probable net impact of the legislation on employment levels and employment patterns in West Virginia; and
  (3) A determination of the relative impact on the number of West Virginia jobs by broad industrial sector (two-digit standard industrial classification).
  (b) Omission. -- A jobs impact statement that omits any information required by subsection (a) of this section shall specifically note its omission, the reason for its omission, the importance of any relevant information so omitted to a complete and realistic assessment of the economic impact of the legislation and the additional time and effort required to obtain any information needed for the assessment.
§21-1C-9. Lack of jobs impact statement not to affect consideration or validity of legislation.
  If, in the opinion of the director of the West Virginia development office, a jobs impact statement cannot be prepared within the statutory time frame, the unavailability of a jobs impact statement may not affect the validity of legislation which is enacted nor shall the unavailability restrict consideration of pending legislation. No provision of this article shall be determined to alter, amend or invalidate any rule of the Senate, rule of the House of Delegates or joint rule of the Senate and House of Delegates.
§21-1C-10. Availability of copies of jobs impact statements.
  One copy of a jobs impact statement requested under section seven of this article shall be made available to the governor and the presiding officers of both houses of the Legislature, who shall distribute the statement to all members of each respective house. Copies of the statement shall be made available to the public at the offices of the clerk of the respective houses of the Legislature.
§21-1C-11. Effective date.
  This article is effective from passage through the fifteenth day of march, two thousand six."
  And,
  By amending the enacting section to read as follows:
  "That sections two, three, four, five and seven, article one-c, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding four new sections, designated sections eight, nine, ten and eleven, all to read as follows" followed by a colon.
  Delegate Staton arose to a point of order as to the germaneness of the amendment.
  To the point of order the Speaker Pro Tempore replied, stating that the fundamental purpose of the amendment was not germane to the fundamental purpose of the bill to which it was offered.
  The question being on the adoption of the amendment recommended by the Committee on Finance, the same was put and prevailed.
  The bill was then ordered to third reading.
Messages from the Senate
  On motion of Delegate Staton, the House of Delegates requested the return of Com. Sub. for H B. 2126, Strengthening penalties relating to violations of fire laws and rules, having been passed in earlier proceedings and communicated to the Senate.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2050, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page one, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof provisions of Com. Sub. for S. B. 75.
  On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendment and requested the Senate to recede therefrom.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
. A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
  H. B. 2224, Relating to higher education reorganization.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That section two, article eight, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section one, article five, chapter five of said code be amended and reenacted; that section two, article one, chapter eighteen-b of said code be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections eight and ten; that section three, article one-a of said chapter be amended and reenacted; that section six, article one-b of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten; that sections three, four and eight, article three-c of said chapter be amended and reenacted; that sections three, four, five, six and seven, article five of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section nine; that article six of said chapter be amended by adding thereto a new section, designated section four-b; that sections four and six, article seven of said chapter be amended and reenacted; that section three, article eight of said chapter be amended and reenacted; that sections five and ten, article nine of said chapter be amended and reenacted; that sections one and fourteen, article ten of said chapter be amended and reenacted; and that article fourteen of said chapter be amended by adding thereto a new section, designated section eleven, all to read as follows:
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 5. SALARY INCREASE FOR STATE EMPLOYEES.
§5-5-1. Definitions.
  For the purposes of this article:
  ~~(1)~~ (a) 'Eligible employee' means either of the following:
  (1) Any regular full-time employee of the state or any spending unit ~~thereof~~ of the state who is eligible for membership in any state retirement system of the state of West Virginia or other retirement plan authorized by the state: Provided, That the mandatory salary increase required by this article shall not apply to any faculty employee at ~~public~~ state institutions of higher ~~learning~~ education, or any employee of the state whose compensation is fixed by statute or by statutory schedule other than employees described in this section. ~~(except that the~~ Clerks, deputy clerks and magistrate assistants of magistrate courts ~~shall be~~ are eligible for the incremental salary increases provided in this article ~~and~~ with ~~such~~ the increases to be allowable in addition to the maximum salaries and compensation for ~~such~~ the employee offices under the magistrate court system statutes of article one, chapter fifty of the code.~~), nor shall~~ This article may not be construed to mandate an increase in the salary of any elected or appointed officer of the state; or
__(2) Any classified employee as defined in section two, article nine, chapter eighteen-b of this code who is an employee of a state institution of higher education or of the higher education policy commission;
__~~(2)~~ (b) 'Years of service' means full years of totaled service as an employee of the state of West Virginia; and
__~~(3)~~ (c) 'Spending unit' means any state office, department, agency, board, commission, institution, bureau or other designated body authorized to hire employees.
CHAPTER 18B. HIGHER EDUCATION.
ARTICLE 1. GOVERNANCE
§18B-1-2. Definitions.
  The following words when used in this chapter and chapter eighteen-c of this code have the meaning hereinafter ascribed to them unless the context clearly indicates a different meaning:
  (a) For the transition year beginning on the first day of July, two thousand, and ending on the thirtieth day of June, two thousand one, only, 'governing board' or 'board' means the higher education interim governing board created pursuant to article one-c of this chapter; and, beginning on the first day of July, two thousand one, 'governing board' or 'board' means the institutional board of governors of West Virginia university, Marshall university, the West Virginia school of osteopathic medicine, Bluefield state college, Concord college, eastern West Virginia community and technical college, Fairmont state college, Glenville state college, Shepherd college, southern West Virginia community and technical college, West Liberty state college, West Virginia northern community and technical college and West Virginia state college, whichever is applicable within the context of the institution or institutions referred to in this chapter or in other provisions of law;
  (a) Effective the first day of July, two thousand five, 'regional campus' means West Virginia university at Parkersburg, and West Virginia university institute of technology.
  (b) ~~Beginning on the first day of July, two thousand one,~~ 'Governing boards' or 'boards' means the institutional boards of governors created pursuant to subsection (b), section one, article two-a of this chapter;
  (c) 'Freestanding community and technical colleges' means southern West Virginia community and technical college, West Virginia northern community and technical college, eastern West Virginia community and technical college, which shall not be operated as branches or off-campus locations of any other state institution of higher education;
  (d) 'Community college' or 'community colleges' means community and technical college or colleges as those terms are defined in this section;
  (e) 'Community and technical college', in the singular or plural, means the freestanding community and technical colleges and other state institutions of higher education which have defined community and technical college responsibility districts and programs in accordance with the provisions of sections four and six, article three-c of this chapter;
  (f) 'Community and technical college education' means the programs, faculty, administration and funding associated with the mission of community and technical colleges as provided in article three-c of this chapter;
  (g) 'Essential conditions' means those conditions which shall be met by community and technical colleges as provided in section three, article three-c of this chapter;
  (h) 'Higher education institution' means any institution as defined by Sections 401(f), (g) and (h) of the federal Higher Education Facilities Act of 1963, as amended;
  (i) 'Higher education policy commission', or 'policy commission' or 'commission' means the commission created pursuant to section one, article one-b of this chapter;
  (j) 'Chancellor' means the chief executive officer of the higher education policy commission employed pursuant to section five, article one-b of this chapter;
  (k) 'Institutional operating budget' or 'operating budget' for any fiscal year means an institution's total unrestricted education and general funding from all sources in a prior fiscal year, including, but not limited to, tuition and fees and legislative appropriation, and any adjustments to that funding as approved by the commission based on comparisons with peer institutions or to reflect consistent components of peer operating budgets;
  (l) 'Post-secondary vocational education programs' means any college-level course or program beyond the high school level provided through an institution of higher education under the jurisdiction of a governing board which results in or may result in the awarding of a two-year associate degree;
  (m) 'Rule' or 'rules' means a regulation, standard, policy or interpretation of general application and future effect;
  (n) For the purposes of this chapter and chapter eighteen-c of this code, 'senior administrator' means the vice chancellor for administration employed by the chancellor in accordance with section two, article four of this chapter. The vice chancellor for administration shall assume all the powers and duties that are assigned by law to the senior administrator;
  (o) 'State college' means Bluefield state college, Concord college, Fairmont state college, Glenville state college, Shepherd college, West Liberty state college or West Virginia state college;
  (p) 'State institution of higher education' means any university, college or community and technical college under the direct or indirect jurisdiction of a governing board as that term is defined in this section;
  (q) 'Regional campus' means West Virginia university at Parkersburg, Potomac state college of West Virginia university, and West Virginia university institute of technology; ~~Each regional campus shall adopt separate strategic plans required by section one-c of this article;~~
  (r) The advisory board previously appointed for the West Virginia graduate college shall be known as the 'board of visitors' and shall provide guidance to the Marshall university graduate college;
  (s) 'Institutional compact' means a compact between a state institution of higher education and the commission, as described in section two, article one-a of this chapter;
  (t) 'Peer institutions', 'peer group' or 'peers' means public institutions of higher education used for comparison purposes and selected by the commission pursuant to section three, article one- a of this chapter;
  (u) 'Administratively linked community and technical college' means a community and technical college created pursuant to section eight, article three-c of this chapter;
  (v) 'Sponsoring institution' means the state institution of higher education that maintains an administrative link to a community and technical college pursuant to section eight, article three-c of this chapter;
  (w) 'Collaboration' means entering into an agreement with one or more providers of education services in order to enhance the scope, quality, or efficiency of education services;
  (x) 'Broker' or the act of 'brokering' means serving as an agent on behalf of students, employers, communities or responsibility areas to obtain education services not offered by a sponsoring institution. These services include courses, degree programs or other services contracted through an agreement with a provider of education services either in-state or out-of-state; and
  (y) 'Joint commission for vocational-technical-occupational education' or 'joint commission' means the commission established pursuant to article three-a of this chapter.
§18B-1-8. Student rights when institutions merge or become administratively linked.
  (a) Commencing with the effective date of this section, when a conflict exists between academic program requirements at an institution to be consolidated, merged or administratively linked to another state institution of higher education, the requirements of the institution at which the student initially enrolled prevail. A student may not be required to earn additional credits toward the degree pursued, or to take additional courses, that were not included in the program of study at the time the student declared that major at the enrolling institution.
__(b) A student enrolled in an institution to be consolidated, merged or administratively linked to another state institution of higher education shall continue to receive any state-funded student financial aid for which he or she would otherwise be eligible.
§18B-1-10. Potomac branch of West Virginia university.
  (a) Notwithstanding any other provision of this code to the contrary, by the first day of July, two thousand five, Potomac state college shall merge and consolidate with West Virginia university, and become a fully integrated division of the university. All administrative and academic units shall be consolidated with primary responsibility for direction and support assigned to West Virginia university. The advisory board previously appointed for Potomac state college shall be known as the board of visitors and shall provide guidance to the division in carrying out its mission.
__(b) Operational costs for the Potomac campus may not exceed by more than ten percent the average cost per full-time equivalent student for freestanding community and technical colleges or the southern regional education board average expenditures for two-year institutions. West Virginia University shall reduce these costs to the mandated level within four years.
__(c) Auxiliary enterprises shall be incorporated into the West Virginia university auxiliary enterprise system. The West Virginia university board of governors shall determine if operations at the Potomac campus can be operated on a self-sufficient basis when establishing rates for auxiliary services and products.
__(d) Potomac state college has a strong reputation in agriculture and forestry instruction, pre- professional programs in business, computer science and education, and basic liberal arts instruction. These programs shall be further cultivated and emphasized as the sustaining mission of the Potomac campus over the next decade, except that the higher education policy commission may change the mission of the Potomac campus at any time the commission determines appropriate. In order to focus its resources on these programs, the campus shall contract through eastern West Virginia community and technical college to provide work force development training, literacy education and technical education programs which are most efficiently offered within a flexible community and technical college curriculum. This collaborative relationship shall serve to strengthen both institutions and generate a model relationship between traditional and community and technical college education for institutions throughout the state.
__(e) Beginning the first day of November, two thousand three, and annually thereafter, Potomac state college and eastern West Virginia community and technical college shall report to the higher education policy commission on plans, accomplishments and recommendations in implementing the cooperative relationship authorized in subsection (d) of this section. The commission shall report to the legislative oversight commission on education accountability on the cooperative activities, results and recommendations for changes by the fifteenth day of December, two thousand three, and annually thereafter.
ARTICLE 1A. COMPACT WITH HIGHER EDUCATION FOR THE FUTURE OF WEST   VIRGINIA.
§18B-1A-3. Peer institutions.
  (a) The commission shall select not fewer than ten peer institutions for each state institution of higher education in West Virginia, including, but not limited to, independently accredited community and technical colleges.
  (b) The peer institutions shall be selected from among institutions throughout the United States and not solely from the states that are members of the southern regional education board.
  (c) The peer institutions, as selected by the commission, shall be used as benchmarks for comparison purposes only and are not intended to reflect funding goals for West Virginia institutions of higher education. Such a use is inappropriate since institutions selected as peers for a state institution may be located in an area of high per capita income or have their funding subject to other factors that make its use unrealistic for setting funding goals in West Virginia. The peer institutions shall be used for comparison in the following areas:
  (1) To determine adjustments to base operating budgets as described in section five of this article;
  (2) To determine comparable levels of tuition;
  (3) To determine comparable faculty and staff teaching requirements and other workloads; and
  (4) For such other purposes as the law may require or the commission may find useful or necessary.
  (d) The commission shall contract with a national, independent education consulting firm to assist in the unbiased selection of peer institutions for each West Virginia institution. The commission shall select peer institutions for each institution through an open, deliberative, objective process and in consultation with the institutional boards of governors, intended to achieve broad understanding of the basis for this selection in the higher education community and the Legislature. Final peer selection is subject to the ~~review~~ approval of the legislative oversight commission on education accountability. In selecting peer institutions, the commission shall use criteria such as, but not limited to:
  (1) Institutional mission;
  (2) Institutional size related to full-time equivalent students;
  (3) The proportions of full-time and part-time students;
  (4) The level of academic programs, including, but not limited to, number of degrees granted at the associate, baccalaureate, masters, doctoral and first-professional level;
  (5) The characteristics of academic programs such as health sciences, professional, technical or liberal arts and sciences; and
  (6) The level of research funding from federal competitive funding sources.
  (e) Subject to the ~~review~~ approval of the legislative oversight commission on education accountability, the commission shall review and make necessary adjustments to peer institutions at least every six years or as necessary based on changes in institutional missions as approved in institutional compacts or in changes at peer institutions.
  (f) Nothing herein ~~shall~~ may be construed to prevent the commission from using the same peers or peer groups for more than one institution of higher education.
ARTICLE 1B. HIGHER EDUCATION POLICY COMMISSION.
§18B-1B-6. Appointment of institutional presidents, provosts;   evaluation.
  (a) Appointment of institutional presidents. -- ~~Effective on the first day of July, two thousand,~~ Appointment of presidents of the public institutions of higher education shall be made as follows:
  (1) Subject to the approval of the commission, the appropriate governing board of the institution shall appoint a president for Bluefield state college, Concord college, eastern West Virginia community and technical college, Fairmont state college, Glenville state college, Marshall university, Shepherd college, southern West Virginia community and technical college, West Liberty state college, West Virginia northern community and technical college, West Virginia school of osteopathic medicine, West Virginia state college and West Virginia university;
  (2) Subject to the approval of the appropriate governing board and to the provisions of article three-c of this chapter, the president of the appropriate institution shall appoint the president of the regional campuses of West Virginia university and of the community and technical colleges which remain linked administratively to a sponsoring institution. The presidents of such regional campuses and community and technical colleges shall serve at the will and pleasure of the institutional president. The president of the sponsoring institution shall appoint a president for the administratively linked community and technical college at the appropriate time as outlined in the institutional compact and approved by the commission.
  (3) Subject to the approval of the commission and to the provisions of ~~articles~~ article three-c ~~and three-f~~ of this chapter, the president of the appropriate institution shall appoint the provost in those cases where the community and technical college remains as a component of another institution. The provost shall serve at the will and pleasure of the president of the employing institution.
  ~~(b)~~ ~~Incumbent heads of institutions. --~~ ~~Any president of a public institution of higher education in office on the first day of July, two thousand, shall continue in office subject to state law:~~ ~~Provided~~, That the provost of an administratively linked community and technical college in office on the thirtieth day of June, two thousand one, may become the president of that community and technical college on the first day of July, two thousand one, with the approval of the governing board of the institution and subject to the consent of the commission. The presidents shall continue in office subject to state law and subject to the will and pleasure of the appropriate governing board or employing institution.
__(b) Other appointments. -- Appointments of administrative heads of state institutions of higher education shall be made in accordance with the provisions of subsection (a) of this section except in the following instances:
__(1) Effective the first day of July, two thousand three, the institutional president shall appoint a provost to be the administrative head of New River community and technical college; and
__(2) Effective the first day of July, two thousand five, the institutional president shall appoint a provost to be the administrative head of the Potomac campus of West Virginia university.
  (c) Evaluation of ~~institutional presidents~~ administrative heads. -- The governing boards shall conduct written performance evaluations of each institution's president: ~~Provided, That~~ except the presidents of regional campuses shall be evaluated by the president of West Virginia university. ~~and~~ The ~~presidents~~ provosts of administratively linked community and technical colleges and other consolidated, merged or administratively linked units shall be evaluated by the president of the employing institution. Evaluations shall be done in every fourth year of employment as ~~president~~ administrative head, recognizing unique characteristics of the institution and utilizing institutional personnel, institutional boards of advisors as appropriate, staff of the appropriate governing board and persons knowledgeable in higher education matters who are not otherwise employed by a governing board. A part of the evaluation shall be a determination of the success of the institution in meeting the requirements of its institutional compact.
§18B-1B-10. Goals of efficiency and effectiveness; findings; reports to commission and legislative oversight commission on education accountability.

  (a) The Legislature finds that it is in the best interests of the citizens of West Virginia for state institutions of higher education to work diligently toward achieving the goals and objectives set forth in section one-a, article one of this chapter and in the institutional compacts. One way these goals may be achieved is through collaborative agreements between or among two or more institutions to enhance the scope, quality, or efficiency of education services.
__(b) To further these goals of cooperation and coordination, to avoid unnecessary duplication of program development and delivery, and to ensure that programs and services address the public policy agenda established by the Legislature and the commission, compact elements and goals for post-secondary education, by the first day of September, two thousand three, Concord college and Bluefield state college jointly shall complete a comprehensive study of the degree to which these institutions are making progress toward meeting the goals for post-secondary education, their institutional compacts and the public policy agenda and shall report their finding to the commission. The report shall address specific examples of collaboration, cooperation or brokering in academic programs, administrative services or any joint efforts which aim to avoid unnecessary duplication and to ensure delivery of high quality education services.
__(c) The commission shall analyze the report prepared by Concord college and Bluefield state college, together with any other relevant data, and report to the legislative oversight commission on education accountability by the first day of November, two thousand three. The report shall contain findings and recommendations to address at least the following areas relevant to the two institutions:
__(1) The fiscal status;
__(2) The progress in meeting the goals for post-secondary education, the institutional compact, and the public policy agenda;
__(3) Possible academic and fiscal advantages that might be derived from an administrative link between the two institutions; and
__(4) Any changes to the programs or services of either institution required by the commission based on their findings or those of the institutions.
__(d) If the commission determines that either institution has made insufficient progress toward the goals established in this chapter, in the institutional compacts, in the public policy agenda established by the commission, or has not complied with the changes required by the commission pursuant to subsection (c) of this section, the commission immediately shall take any action necessary to further the goals and requirements of this section.
__(e) The commission shall continue to monitor and review each institution's compliance with this section.
ARTICLE 3C. COMMUNITY AND TECHNICAL COLLEGE SYSTEM.
§18B-3C-3. Essential conditions for community and technical college programs and services.
  The Legislature hereby establishes the following essential conditions for community and technical college programs and services:
  (a) Independent accreditation by the commission on institutions of higher education of the north central association of colleges and schools (NCA) reflecting external validation that academic programs, services, faculty, governance, financing and other policies are aligned with the community and technical college mission of the institution;
  (b) A full range of community and technical college services offered as specified in section six of this article;
  (c) Programmatic approval consistent with the provisions of section nine of this article;
  (d) A fee structure competitive with its peer institutions;
  (e) Basic services, some of which may be obtained under contract with existing institutions in the region. These basic services shall include, but are not limited to, the following:
  (1) Student services, including, but not limited to, advising, academic counseling, financial aid and provision of the first line of academic mentoring and mediation;
  (2) Instructional support services;
  (3) Access to information and library services;
  (4) Physical space in which courses can be offered;
  (5) Access to necessary technology for students, faculty and mentors;
  (6) Monitoring and assessment; and
  (7) Administrative services, including, but not limited to, registration, fee collection and bookstore and other services for the distribution of learning materials;
  (f) A ~~president~~ provost who is the chief academic and administrative officer of the community and technical college appointed and serving pursuant to the terms of section six, article one-b of this chapter. The provost shall report directly to the president of the institution and shall have appropriate direct contact with the institutional board of governors. It is the responsibility of the board of governors to provide sufficient time on its agenda for each provost of a component community and technical college to discuss issues relevant to the mission of the component;
  (g) An institutional board of governors or an institutional board of advisors appointed and serving as required by law;
  (h) A full-time core faculty, complemented by persons engaged through contract or other arrangements, including college and university faculty, to teach community college courses and qualified business, industry and labor persons engaged as adjunct faculty in technical areas;
  (i) A faculty personnel policy, formally established to be separate and distinct from that of other institutions, which includes, but is not limited to, appointment, promotion, workload and, if appropriate, tenure pursuant to section nine of this article. These policies shall be appropriate for the community and technical college mission and may not be linked to the policies of any other institution;
  (j) Community and technical colleges designed and operating as open-provider centers with the authority and flexibility to draw on the resources of the best and most appropriate provider to ensure that community and technical college services are available and delivered in the region in a highly responsive manner. A community and technical college may contract with other institutions and providers as necessary to obtain the academic programs and resources to complement those available through a sponsoring college, where applicable, in order to meet the region's needs;
  (k) Separately identified state funding allocations for each of the community and technical colleges. The ~~president~~ provost of the community and technical college has full budgetary authority for the entity, subject to accountability to its governing board, including authority to retain all tuition and fees generated by the community and technical college for use to carry out its mission.
§18B-3C-4. Responsibility districts.
  (a) Each community and technical college is hereby assigned a responsibility district within which it is responsible for providing the full array of community and technical college programs and services as defined in section six of this article. The programs and services shall address the public policy agenda, compact elements and goals for post-secondary education established in section one- a, article one of this chapter as they relate to community and technical colleges, and other goals which may be established by the commission. The responsibility districts shall be comprised of contiguous areas of the state which have similar economic, industrial, educational, community and employment characteristics to facilitate specialization in mission and programming. For the purposes of initial implementation and organization, the districts shall be comprised as follows and assigned to the designated community and technical colleges:
  (1) West Virginia northern community and technical college - Ohio, Brooke, Hancock, Marshall, Tyler and Wetzel counties;
  (2) West Virginia university at Parkersburg - Wood, Jackson, Pleasants, Ritchie, Roane, Tyler and Wirt counties;
  (3) Southern West Virginia community and technical college - Logan, Boone, Lincoln, McDowell, Mingo, Raleigh and Wyoming counties;
  (4) Bluefield state community and technical college - Mercer, Greenbrier, McDowell, Monroe, Pocahontas, Raleigh and Summers counties;
  (5) Glenville state community and technical college - Gilmer, Barbour, Braxton, Calhoun, Clay, Lewis, Nicholas, Roane, Upshur and Webster counties;
  (6) Fairmont state community and technical college - Marion, Doddridge, Harrison, Monongalia, Preston, Randolph, Taylor and Barbour counties;
  (7) Shepherd community and technical college - Jefferson, Berkeley ~~Grant~~ and Morgan counties;
  (8) Eastern West Virginia community and technical college - Mineral, Grant, Hampshire, Hardy, Tucker and Pendleton counties;
  (9) West Virginia state community and technical college - Kanawha, Putnam and Clay counties;
  (10) West Virginia university institute of technology community and technical college - Fayette, Clay, Kanawha, Raleigh and Nicholas counties; ~~and~~
  (11) Marshall university community and technical college - Cabell, Kanawha, Mason, Putnam and Wayne counties; and
__(12) Effective the first day of July, two thousand three, the following changes are made to the responsibility districts:
__(A)The responsibility districts of the components known as Glenville state community and technical college and Bluefield state community and technical college are abolished and the counties formerly within those responsibility districts are reassigned as provided in this subsection.
__(B) New River community and technical college of Bluefield state college - Clay, Fayette, Greenbrier, Mercer, McDowell, Monroe, Nicholas, Pocahontas, Raleigh, Summers and Webster counties; and
__(C) Fairmont state community and technical college - Barbour, Braxton, Calhoun, Doddridge, Gilmer, Harrison, Lewis, Marion, Monongalia, Preston, Randolph, Taylor and Upshur counties.
  (b) It is the intent of the Legislature that, where counties are listed in more than one district, the county shall be the joint responsibility of each community and technical college assigned that county or shall be divided as determined by the commission. The boundaries of the districts may be modified from time to time by the commission to serve better the needs within the districts. Such modifications are not required to follow county boundaries.
  (c) Prior to the first day of July, two thousand three, Glenville state college, Fairmont state college and Bluefield state college shall agree as to the transfer of ownership of or title to any property, materials, equipment or supplies of the former Glenville state community and technical college; the transfer of any valid agreement, obligation or claim entered into or incurred by the Glenville state community and technical college; and the transfer, if any, of faculty and staff employed by Glenville state college for the benefit of its community and technical college. Any disagreement regarding these transfers shall be submitted to the higher education policy commission for resolution.
§18B-3C-8. Process for achieving independently-accredited community and technical colleges.
  (a) Over a six-year period beginning the first day of July, two thousand one, West Virginia shall move from having 'component' community and technical colleges to having a statewide network of independently-accredited community and technical colleges serving every region of the state. This section does not apply to the freestanding community and technical colleges, West Virginia university at Parkersburg and Potomac state college of West Virginia university: ~~Provided~~, That Potomac state college of West Virginia university shall serve as a comprehensive two-year institution for the delivery of transfer education, may offer career programs in the area of agriculture, and may offer nontraditional outreach and work force development programs as a collaborative effort in a region with the local community and technical college whose mission and charge encompasses outreach and work force development programs.
  (b) To be eligible for funds appropriated to develop independently accredited community and technical colleges, a state institution of higher education shall demonstrate the following:
  (1) That it has as a part of its institutional compact approved by the council and the commission a step-by-step plan with measurable benchmarks for developing an independently accredited community and technical college that meets the essential conditions set forth in section three of this article;~~, except as limited in subdivisions (1), (2) and (4), subsection (c) of this section;~~
  (2) That it is able to offer evidence annually to the satisfaction of the council and the commission that it is making progress toward accomplishing the benchmarks established in its institutional compact for developing an independently accredited community and technical college; and
  (3) That it has submitted an expenditure schedule approved by the council and the commission which sets forth a proposed plan of expenditures for funds allocated to it from the fund.
  (c) The following are recommended strategies for moving from the current arrangement of 'component' community and technical colleges to the legislatively mandated statewide network of independently accredited community and technical colleges serving every region of the state. The Legislature recognizes that there may be other means to achieve this ultimate objective; however, it is the intent of the Legislature that the move from the current arrangement of 'component' community and technical colleges to the legislatively-mandated statewide network of independently- accredited community and technical colleges serving every region of the state shall be accomplished. The following recommendations are designed to reflect significant variations among regions and the potential impacts on the sponsoring institutions.
  (1) ~~Bluefield state community and technical college.~~ -- Bluefield state community and technical college, including the Lewisburg center, should retain its relationship as a component of Bluefield state college. The president and the board of governors of Bluefield state college are accountable to the commission for ensuring that the full range of community and technical college services is available throughout the region and that the community and technical college adheres, as nearly as possible, to the essential conditions pursuant to section three of this article with the possible exception of independent accreditation.
  ~~(2)~~ ~~Center for higher education and work force development at Beckley.~~ -- The president of Bluefield state college and the institutional board of advisors are responsible, according to a plan approved by the commission, for the step-by-step implementation of a new independently accredited community and technical college administratively linked to Bluefield state college, known as the center for higher education and work force development, which adheres to the essential conditions pursuant to section three of this article. As an independently accredited community and technical college, the center also shall serve as higher education center for its region by brokering with other colleges, universities and other providers, in-state and out-of-state, both public and private, to ensure the coordinated access of students, employers, and other clients to needed programs and services. The new community and technical college shall serve Raleigh, Summers and Fayette counties and be headquartered in Beckley. The commission shall appoint an institutional board of advisors for the center at Beckley which is separate from the institutional board of advisors of Bluefield state college but may have some overlap in membership to facilitate coordination. In addition, the president of the center shall appoint a district consortium committee to advise the president on a comprehensive assessment of the needs in the region, on coordinating efforts with regional labor market information systems, and on other areas as provided for in section seven of this article relating to the duties of district consortia committees. The center shall facilitate the planning and development of a unified effort involving multiple providers and facilities, including, but not limited to, Concord college, the college of West Virginia, Marshall university, West Virginia university, West Virginia university institute of technology and other entities to meet the documented work force development needs in the region: ~~Provided,~~ That nothing in this subdivision prohibits or limits any existing, or the continuation of any existing, affiliation between the college of West Virginia, West Virginia university institute of technology and West Virginia university. The center for higher education and work force development at Beckley also shall provide the facilities and support services for other public and private institutions delivering courses, programs and services in Beckley. The objective would be to assure students and employers in the area that there would be coordination and efficient use of resources among the separate programs and facilities, existing and planned, in the Beckley area. If, at a future time, the commission believes it appropriate, it may recommend to the Legislature that the Beckley institution be created as a freestanding institution.   New River community and technical college of Bluefield state college. --
__(A) Bluefield state shall retain its existing mission but place greater emphasis and priority on its community and technical college role and serving the citizens of its expanded service district. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Bluefield state college. Nothing herein may be construed to require Bluefield state college to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
__(B) Effective the first day of July, two thousand three, the component formerly known as Bluefield state community and technical college shall become a multi-campus entity known as New River community and technical college, administratively linked to Bluefield state college. The multi-campus community and technical college shall serve Raleigh, Summers, Fayette, Greenbrier, Clay, Mercer, McDowell, Monroe, Nicholas, Pocahontas, and Webster counties and be headquartered in Beckley. The West Virginia council for community and technical college education shall appoint an institutional board of advisors, pursuant to section one, article six of this chapter, for New River community and technical college which is separate from the institutional board of governors of Bluefield state college.
__(C) Bluefield state college shall take immediate steps to seek independent accreditation of New River community and technical college including all sites within its revised service district. The president and the board of governors are responsible for obtaining independent accreditation of the community and technical college by the thirty-first day of December, two thousand four. If the multi-campus entity known as New River community and technical college has not obtained independent accreditation by this date, the commission shall choose one of the following options:
__(i) Create New River as a freestanding community and technical college; or
__(ii) Assign the responsibility for obtaining independent accreditation to another state institution of higher education.
__(D) The president and the board of governors of Bluefield state college also are accountable to the commission for ensuring that the full range of community and technical college services is available throughout the region and that New River community and technical college adheres to the essential conditions pursuant to section three of this article.
__(E) As an independently accredited community and technical college, New River also shall serve as a higher education center for its region by brokering with other colleges, universities and other providers, in-state and out-of-state, both public and private, to ensure the coordinated access of students, employers, and other clients to needed programs and services.
__(F) New River community and technical college shall facilitate the planning and development of a unified effort involving multiple providers and facilities, including, but not limited to, Concord college, the college of West Virginia, Marshall university, West Virginia university, West Virginia university institute of technology and other entities to meet the documented work force development needs in the region. Nothing in this subdivision prohibits or limits any existing, or the continuation of any existing, affiliation between the college of West Virginia, West Virginia university institute of technology and West Virginia university. New River community and technical college also shall provide the facilities and support services for other public and private institutions delivering courses, programs and services in Beckley. The objective is to assure students and employers in the area that there is coordination and efficient use of resources among the separate programs and facilities, existing and planned, in the Beckley area.
__~~(3)~~ ~~Glenville state community and technical college. --~~ Glenville state community and technical college, including the centers in Nicholas, Lewis and Roane counties, should retain its relationship as a component of Glenville state college. The president of Glenville state college and the governing board are accountable to the commission for ensuring that the full range of community and technical college services is available throughout the region and that the community and technical college adheres as nearly as possible to the essential conditions pursuant to section three of this article, with the possible exception of independent accreditation.
  ~~(4)~~ (2) Fairmont state community and technical college. -- Fairmont state community and technical college shall be an independently accredited community and technical college serving Marion, Doddridge, Barbour, Harrison, Monongalia, Preston, Randolph ~~and~~ Taylor, Braxton, Calhoun, Gilmer, Lewis, and Upshur counties. The community and technical college is developed on the base of the existing component community and technical college of Fairmont state college. Subject to the provisions of this section, the president and the governing board of Fairmont state college are responsible, according to a plan approved by the commission, for step-by-step implementation of the independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Fairmont state college. Nothing herein ~~shall~~ may be construed to require Fairmont state college to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
  ~~(5)~~ (3) Marshall university community and technical college. -- Senate Bill 653 created an implementation board charged with the responsibility to develop a plan, to be recommended to the commission, for the most effective and efficient method to deliver comprehensive community and technical college education to the citizens and employers of the responsibility areas of Marshall university, West Virginia state college and West Virginia university institute of technology. Pursuant to the recommendation of the implementation board and of the commission, Marshall university community and technical college shall become an independently accredited community and technical college. It ~~should~~ shall serve Cabell, Kanawha, Mason, Putnam and Wayne counties. The new community and technical college is developed on the base of the existing component community and technical college of Marshall university. Subject to the provisions of this section, the president and the governing board of Marshall university are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Marshall university. Nothing herein ~~shall~~ may be construed to require Marshall university to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
  ~~(6)~~ (4) Shepherd community and technical college. -- Shepherd community and technical college shall become an independently accredited community and technical college. It ~~should~~ shall serve Jefferson, Berkeley and Morgan counties. The new community and technical college is developed on the base of the existing component community and technical college of Shepherd college. Subject to the provisions of this section, the president and the governing board of Shepherd college are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to Shepherd college. Nothing herein ~~shall~~ may be construed to require Shepherd college to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
  ~~(7)~~ (5) West Virginia state community and technical college. -- Senate Bill 653 created an implementation board charged with the responsibility to develop a plan, to be recommended to the commission, for the most effective and efficient method to deliver comprehensive community and technical college education to the citizens and employers of the responsibility areas of Marshall university, West Virginia state college and West Virginia university institute of technology. Pursuant to the recommendation of the implementation board and of the commission, West Virginia state community and technical college shall become an independently accredited community and technical college. It ~~should~~ shall serve Kanawha, Putnam and Clay counties. The new community and technical college is developed on the base of the existing component community and technical college of West Virginia state college. Subject to the provisions of this section, the president and the governing board of West Virginia state college are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to West Virginia state college. Nothing herein ~~shall~~ may be construed to require West Virginia state college to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
  ~~(8)~~ (6) West Virginia university institute of technology. -- Senate Bill 653 created an implementation board charged with the responsibility to develop a plan, to be recommended to the commission, for the most effective and efficient method to deliver comprehensive community and technical college education to the citizens and employers of the responsibility areas of Marshall university, West Virginia state college and West Virginia university institute of technology. Pursuant to the recommendation of the implementation board and of the commission, West Virginia university institute of technology community and technical college shall become an independently accredited community and technical college. It ~~should~~ shall serve Fayette, Clay, Kanawha, Raleigh and Nicholas counties. The new community and technical college is developed on the base of the existing component community and technical college of West Virginia university institute of technology. Subject to the provisions of this section, the president and the governing board of West Virginia university institute of technology are responsible, according to a plan approved by the commission, for step-by-step implementation of the new independently accredited community and technical college which adheres to the essential conditions pursuant to section three of this article. Subject to the provisions of section twelve of this article, the community and technical college will remain administratively linked to West Virginia university institute of technology. Nothing herein ~~shall~~ may be construed to require West Virginia university institute of technology to discontinue any associate degree program in areas of particular institutional strength which are closely articulated to their baccalaureate programs and missions or which are of a high-cost nature and can best be provided in direct coordination with a baccalaureate institution.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-3. Authority to contract for programs, services and facilities.
  The governing boards and the commission are authorized and empowered to enter into contracts and expend funds for programs, services and facilities provided by public and private education institutions, associations, boards, agencies, consortia, corporations, partnerships, individuals and local, state and federal governmental bodies within and outside of West Virginia in order that maximum higher education opportunities of high quality may be provided to the citizens of the state in the most economical manner.: ~~Provided,~~ ~~That~~ In no event may a contract for such services and facilities be entered into unless the commission or the governing boards have determined that such services and facilities are necessary and ~~that such services and facilities~~ would be at a savings to the state.
  Notwithstanding the provisions of this section, nothing herein contained shall supersede the responsibility and respective duties of the secretary of administration and the director of the purchasing division of such department for the execution and approval of the contracts entered into under this article and such contracts shall be in complete conformity with the provisions of articles three and five, chapter five-a of this code.
§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.
  (a) The commission and each governing board, through the vice chancellor for administration, shall purchase or acquire all materials, supplies, equipment, services and printing required for that governing board or the commission, as appropriate, and the state institutions of higher education under their jurisdiction. The commission shall adopt rules governing and controlling acquisitions and purchases in accordance with the provisions of this section. ~~Such~~ The rules shall assure that the commission and the governing boards:
  (1) Do not preclude any person from participating and making sales thereof to the governing board or to the commission except as otherwise provided in section five of this article.: ~~Provided, That the providing~~ Provision of consultant services such as strategic planning services will not preclude or inhibit the governing boards or the commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services;
  (2) ~~Shall~~ Establish and prescribe specifications, in all proper cases, for materials, supplies, equipment, services and printing to be purchased; and
  (3) ~~Shall~~ Adopt and prescribe such purchase order, requisition or other forms as may be required;
  (4) ~~Shall~~ Negotiate for and make purchases and acquisitions in such quantities, at such times and under contract, in the open market or through other accepted methods of governmental purchasing as may be practicable in accordance with general law;
  (5) ~~Shall~~ Advertise for bids on all purchases exceeding twenty-five thousand dollars, to purchase by means of sealed bids and competitive bidding or to effect advantageous purchases through other accepted governmental methods and practices;: ~~Provided,~~ That for printing services, bids shall be advertised by written notification of such bids to any print shop, affiliated with an institution of higher education and operated by classified employees, on all purchases exceeding five thousand dollars;
  (6) ~~Shall~~ Post notices of all acquisitions and purchases for which competitive bids are being solicited in the purchasing office of the specified institution involved in the purchase, at least two weeks prior to making such purchases and ensure that the notice is available to the public during business hours;
  (7) ~~Shall~~ Provide for purchasing in the open market;
  (8) ~~Shall~~ Make provision for vendor notification of bid solicitation and emergency purchasing; and
  (9) ~~Shall~~ Provide that competitive bids are not required for purchases of five thousand dollars or less.
  (b) The commission or each governing board, through the vice chancellor for administration, may issue a check in advance to a company supplying postage meters for postage used by that board, the commission and by the state institutions of higher education under their jurisdiction.
  (c) When a purchase is to be made by bid, any or all bids may be rejected. However, all purchases based on advertised bid requests shall be awarded to the lowest responsible bidder taking into consideration the qualities of the articles to be supplied, their conformity with specifications, their suitability to the requirements of the governing boards, the commission and delivery terms.: ~~Provided, That~~ The preference for resident vendors as provided in section thirty-seven, article three, chapter five-a of this code ~~shall~~ apply to the competitive bids made pursuant to this section.
  (d) The governing boards and the commission shall maintain a purchase file, which shall be a public record and open for public inspection. After the award of the order or contract, the governing boards and the commission shall indicate upon the successful bid that it was the successful bid and shall further indicate why bids are rejected and, if the mathematical low vendor is not awarded the order or contract, the reason therefor. No records in the purchase file ~~shall~~ may be destroyed without the written consent of the legislative auditor. Those files in which the original documentation has been held for at least one year and in which the original documents have been reproduced and archived on microfilm or other equivalent method of duplication may be destroyed without the written consent of the legislative auditor. All files, no matter the storage method, shall be open for inspection by the legislative auditor upon request.
  (e) The commission also shall adopt rules to prescribe qualifications to be met by any person who is to be employed as a buyer pursuant to this section. These rules shall require that no person may be employed as a buyer unless that person, at the time of employment, either is:
  (1) A graduate of an accredited college or university; or
  (2) Has at least four years' experience in purchasing for any unit of government or for any business, commercial or industrial enterprise.
  (f) Any person making purchases and acquisitions pursuant to this section shall execute a bond in the penalty of fifty thousand dollars, payable to the state of West Virginia, with a corporate bonding or surety company authorized to do business in this state as surety thereon, in form prescribed by the attorney general and conditioned upon the faithful performance of all duties in accordance with sections four through eight of this article and the rules of the interim governing board and the commission. In lieu of separate bonds for such buyers, a blanket surety bond may be obtained. Any such bond ~~or bonds~~ shall be filed with the secretary of state. The cost of any such bond ~~or bonds~~ shall be paid from funds appropriated to the applicable governing board or commission.
  (g) All purchases and acquisitions shall be made in consideration and within limits of available appropriations and funds and in accordance with applicable provisions of article two, chapter five-a of this code, relating to expenditure schedules and quarterly allotments of funds.
  (h) The governing boards and the commission may make requisitions upon the auditor for a sum to be known as an advance allowance account, in no case to exceed five percent of the total of the appropriations for the governing board or the commission, and the auditor shall draw a warrant upon the treasurer for such accounts.~~; and all such~~ All advance allowance accounts shall be accounted for by the applicable governing board or commission once every thirty days or more often if required by the state auditor.
  (i) Contracts entered into pursuant to this section shall be signed by the applicable governing board or the commission in the name of the state and shall be approved as to form by the attorney general.: ~~Provided, That~~ A contract in which requires approval as to form by the attorney general ~~the total does not exceed five thousand dollars~~ and for which the attorney general has not responded within fifteen days of presentation of the contract, the contract shall be ~~deemed~~ considered approved.: ~~Provided, however, That~~ A contract or a change order for that contract and notwithstanding any other provision of this code to the contrary, associated documents such as performance and labor/material payments, bonds and certificates of insurance ~~which in total does not exceed fifty thousand dollars and~~ which ~~uses~~ use terms and conditions or standardized forms previously approved by the attorney general and ~~does~~ do not make substantive changes in the terms and conditions of the contract ~~does~~ do not require approval by the attorney general.: ~~Provided further, That~~ The attorney general shall make a list of those changes which he or she deems to be substantive and the list, and any changes thereto, shall be published in the state register. A contract that exceeds fifteen thousand dollars shall be filed with the state auditor.: ~~And provided further, That upon request~~ If requested to do so, the governing boards or the commission shall make all contracts available for inspection by the state auditor. The governing board or the commission, as appropriate, shall prescribe the amount of deposit or bond to be submitted with a bid or contract, if any, and the amount of deposit or bond to be given for the faithful performance of a contract.
  (j) If the governing board or the commission purchases or contracts for materials, supplies, equipment, services and printing contrary to the provisions of sections four through seven of this article or the rules pursuant thereto, such purchase or contract shall be void and of no effect.
  (k) Any governing board or the commission, as appropriate, may request the director of purchases to make available, from time to time, the facilities and services of that department to the governing boards or the commission in the purchase and acquisition of materials, supplies, equipment, services and printing and the director of purchases shall cooperate with that governing board or the commission, as appropriate, in all such purchases and acquisitions upon such request.
  (l) Each governing board or the commission, as appropriate, shall permit private institutions of higher education to join as purchasers on purchase contracts for materials, supplies, services and equipment entered into by that governing board or the commission. Any private school desiring to join as purchasers on such purchase contracts shall file with that governing board or the commission an affidavit signed by the president of the institution of higher education or a designee requesting that it be authorized to join as purchaser on purchase contracts of that governing board or the commission, as appropriate.~~, and agreeing that it will be~~ The private school shall agree that it is bound by such terms and conditions as that governing board or the commission may prescribe and that it will be responsible for payment directly to the vendor under each purchase contract.
  (m) Notwithstanding any other provision of this code to the contrary, the governing boards and the commission, as appropriate, may make purchases from cooperative buying groups, consortia, the federal government or from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from cooperative buying groups, consortia, the federal government or from a federal contract and purchasing from the cooperative buying groups, consortia, federal government or from a federal government contract would be the most financially advantageous manner of making the purchase.
  (n) An independent performance audit of all purchasing functions and duties which are performed at any institution of higher education shall be performed each fiscal year. The joint committee on government and finance shall conduct the performance audit and the governing boards and the commission, as appropriate, shall be responsible for paying the cost of the audit from funds appropriated to the governing boards or the commission.
  (o) The governing boards shall require each institution under their respective jurisdictions to notify and inform every vendor doing business with that institution of the provisions of section fifty-four, article three, chapter five-a of this code, also known as the 'prompt pay act of 1990'.
  (p) Consultant services, such as strategic planning services, may not preclude or inhibit the governing boards or the commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services.
  (q) After the commission has granted approval for lease-purchase arrangements by the governing boards, a governing board may enter into lease-purchase arrangements for capital improvements, including equipment. Any lease-purchase arrangement so entered shall constitute a special obligation of the state of West Virginia. The obligation under a lease-purchase arrangement so entered may be from any funds legally available to the institution and must be cancelable at the option of the governing board or institution at the end of any fiscal year. The obligation, any assignment or securitization thereof, shall never constitute an indebtedness of the state of West Virginia or any department, agency or political subdivision thereof, within the meaning of any constitutional provision or statutory limitation, and ~~shall~~ may not be a charge against the general credit or taxing powers of the state or any political subdivision thereof; and such facts shall be plainly stated in any lease-purchase agreement. Further, the lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee and the approval of the attorney general of West Virginia. Proposals for any arrangement must be requested in accordance with the requirements of this section and any rules or guidelines of the commission. In addition, any lease- purchase agreement which exceeds one hundred thousand dollars total ~~must~~ shall be approved by the attorney general of West Virginia. The interest component of any lease-purchase obligation shall be exempt from all taxation of the state of West Virginia, except inheritance, estate and transfer taxes. It is the intent of the Legislature that if the requirements set forth in the internal revenue code of one thousand nine hundred eighty-six, as amended, and any regulations promulgated pursuant thereto are met, the interest component of any lease-purchase obligation also shall be exempt from the gross income of the recipient for purposes of federal income taxation and may be designated by the governing board or the president of the institution as a bank-qualified obligation.
  (r) Notwithstanding any other provision of this code to the contrary, the commission and the governing boards have the authority, in the name of the state, to lease, or offer to lease, as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as provided below:
__(1) The commission and the governing boards have sole authority to select and to acquire by contract or lease all grounds, buildings, office space or other space, the rental of which is necessarily required by the commission or governing boards for the institutions under their jurisdiction. The chief executive officer of the commission or an institution shall certify the following:
__(A) That the grounds, buildings, office space or other space requested is necessarily required for the proper function of the commission or institution;
__(B) That the commission or institution will be responsible for all rent and other necessary payments in connection with the contract or lease; and
__(C) That satisfactory grounds, buildings, office space or other space is not available on grounds and in buildings now owned or leased by the commission or the institution.
__Before executing any rental contract or lease, the commission or a governing board shall determine the fair rental value for the rental of the requested grounds, buildings, office space or other space, in the condition in which they exist, and shall contract for or lease the premises at a price not to exceed the fair rental value.
__(2) The commission and the governing boards are authorized to enter into long-term agreements for buildings, land and space for periods longer than one fiscal year, but not to exceed forty years. Any purchases of real estate, any lease-purchase agreement and any construction of new buildings or other acquisition of buildings, office space or grounds resulting therefrom, pursuant to the provisions of this subsection shall be presented by the policy commission to the joint committee on government and finance for prior review. Any such lease shall contain, in substance, all the following provisions:
__(A) That the commission or the governing board, as lessee, have the right to cancel the lease without further obligation on the part of the lessee upon giving thirty days' written notice to the lessor at least thirty days prior to the last day of the succeeding month;
__(B) That the lease shall be considered canceled without further obligation on the part of the lessee if the Legislature or the federal government fails to appropriate sufficient funds therefor or otherwise acts to impair the lease or cause it to be canceled; and
__(C) That the lease shall be considered renewed for each ensuing fiscal year during the term of the lease unless it is canceled by the commission or the governing board before the end of the then-current fiscal year.
__(3) The commission or an institution which is granted any grounds, buildings, office space or other space leased in accordance with this section may not order or make permanent changes of any type thereto, unless the commission or the governing board, as appropriate, has first determined that the change is necessary for the proper, efficient and economically sound operation of the institution. For purposes of this section, a 'permanent change' means any addition, alteration, improvement, remodeling, repair or other change involving the expenditure of state funds for the installation of any tangible thing which cannot be economically removed from the grounds, buildings, office space or other space when vacated by the institution.
__(4) Leases and other instruments for grounds, buildings, office or other space, once approved by the commission or governing board, may be signed by the chief executive officer of the commission or the institution. Any lease or instrument exceeding one hundred thousand dollars annually shall be approved as to form by the attorney general. A lease or other instrument for grounds, buildings, office or other space that contains a term, including any options, of more than six months for its fulfillment shall be filed with the state auditor.
__(5) The commission may promulgate rules it considers necessary to carry out the provisions of this section.

§18B-5-5. Prequalification disclosure by vendors; register of vendors; exceptions; suspension of vendors.

  (a) Every person, firm or corporation selling or offering to sell to the commission or the governing boards, upon competitive bids or otherwise, any materials, equipment, services or supplies in excess of ~~fifteen~~ twenty-five thousand dollars:
  (1) Shall comply with ~~all of~~ the provisions of section twelve, article three, chapter five-a of this code; ~~and~~
  (2) Shall file with the director of the purchasing division of the state of West Virginia the affidavit required herein; and ~~Provided,~~ ~~That every such person, firm or corporation who is~~   (3) If presently in compliance with said section may not be required to requalify thereunder to be able to transact business with the commission or the governing boards.
  (b) Any person, firm or corporation failing or refusing to comply with said statute as herein required shall be ineligible to sell or offer to sell ~~commodities~~ materials, supplies, equipment, services or printing to the commission or the governing boards as hereinafter set forth.: ~~Provided,~~ ~~That~~ Any person suspended under the provisions of section ~~thirty-nine~~ thirty-two, article three, chapter five-a of this code ~~shall~~ is not be eligible to sell or offer to sell ~~commodities~~ materials, supplies, equipment, services or printing to the commission or the governing boards.: ~~Provided, however,~~ ~~That~~ The commission or the governing boards ~~shall have the power and authority to~~ may suspend, for a period not to exceed one year, the right and privilege of a person to bid on purchases of the commission or the governing boards when there is reason to believe that such person has violated any of the provisions in sections four through seven of this article or the rules of the governing boards pursuant thereto. ~~Every~~ Any person whose right to bid has been so suspended shall be notified thereof by a letter posted by registered mail containing the reason for ~~such~~ the suspension and ~~shall have~~ has the right to have the ~~appropriate~~ action of the commission or the governing ~~board's~~ board, as applicable, ~~action~~ reviewed in accordance with section ~~forty~~ thirty- three, article three, chapter five-a of this code.: ~~Provided further, That~~ A vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, article three, chapter five-a of this code, may not bid on or be awarded a contract under this section.
§18B-5-6. Other code provisions relating to purchasing not controlling; exceptions; criminal provisions and penalties; financial interest of governing boards, etc.; receiving anything of value from interested party and penalties therefor; application of bribery statute.

  The provisions of article three, chapter five-a of this code ~~shall~~ do not control or govern the purchase, acquisition or other disposition of any equipment, materials, supplies, services or printing by the commission or the governing boards, except as provided in sections four through seven of this article.: ~~Provided,~~ ~~That~~ Sections twenty-nine, thirty and thirty-one, article three, chapter five-a of this code ~~shall~~ apply to all purchasing activities of the commission and the governing boards.
  Neither the commission, the governing boards, nor any employee of the commission or governing boards, ~~shall~~ may be financially interested, or have any beneficial personal interest, directly or indirectly, in the purchase of any equipment, materials, supplies, services or printing, nor in any firm, partnership, corporation or association furnishing them, except as may be authorized by the provisions of chapter six-b of this code. Neither the commission, the governing boards nor any employee of ~~said~~ the commission or governing boards ~~shall~~ may accept or receive directly or indirectly from any person, firm or corporation, known by the commission, governing boards or such employee to be interested in any bid, contract or purchase, by rebate, gift or otherwise, any money or other thing of value whatsoever or any promise, obligation or contract for future reward or compensation, except as may be authorized by the provisions of chapter six-b of this code.
  A person who violates any of the provisions of this section ~~shall be~~ is guilty of a misdemeanor, and, upon conviction thereof, shall be imprisoned in jail not less than three months nor more than one year, or fined not less than fifty nor more than one thousand dollars, or both imprisoned and fined, in the discretion of the court.: ~~Provided,~~ ~~That~~ Any person who violates any ~~of such~~ provisions of this section by receiving money or other thing of value under circumstances constituting the crime of bribery under the provisions of section three, article five-a, chapter sixty-one of this code, shall, upon conviction of bribery, be punished as provided in section nine of said article.

§18B-5-7. Disposition of obsolete and unusable equipment, surplus supplies and other unneeded materials.

  (a) The commission and the governing boards shall dispose of obsolete and unusable equipment, surplus supplies and other unneeded materials, either by transfer to other governmental agencies or institutions, by exchange or trade, or by sale as junk or otherwise. The commission and each governing ~~boards~~ board shall adopt rules governing and controlling the disposition of all such equipment, supplies and materials. At least ten days prior to the disposition, the commission or the governing boards, as applicable, shall advertise, by newspaper publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, in the county in which the equipment, supplies and materials are located the availability or sales of such disposable equipment, supplies and materials. ~~and~~ The commission or governing boards, as applicable, may sell the disposable equipment, supplies and materials, in whole or in part, at public auction or by sealed bid, or may transfer, exchange or trade the same to other governmental agencies or institutions (if by transfer, exchange or trade, then without advertising), in whole or in part, as sound business practices may warrant under existing circumstances and conditions.
  (b) The commission or governing board, as appropriate, shall report semiannually to the legislative auditor, all sales of commodities made during the preceding six months. The report shall include a description of the commodities sold, the name of the buyer to whom each commodity was sold, and the price paid by the buyer.
__(c) The proceeds of sales or transfers shall be deposited in the state treasury to the credit on a pro rata basis of the fund or funds from which the purchase of the particular commodities or expendable commodities was made. The commission or governing board, as appropriate, may charge and assess fees reasonably related to the costs of care and handling with respect to the transfer, warehousing, sale and distribution of state property that is disposed of or sold pursuant to the provisions of this section.
§18B-5-9. Higher education fiscal responsibility.
  (a) The commission shall ensure the fiscal integrity of any electronic process conducted at its offices or at any institution using best business and management practices.
  (b) The commission shall implement a process whereby, to the maximum extent practicable, employees of the commission and any state institution of higher education receive their wages via electronic transfer or direct deposit.
  (c) Notwithstanding the provisions of section ten-a, article three, chapter twelve of this code, the amount of any purchase made with a purchasing card used by the commission or an institution may not exceed five thousand dollars. Subject to approval of the purchasing division of the department of administration, any routine, regularly-scheduled payment, including, but not limited to, utility payments and real property rental fees may exceed this amount limit. The commission or an institution may use a purchasing card for travel expenses directly related to the job duties of the traveling employee. Traveling expenses may include registration fees and airline and other transportation reservations, if approved by the administrative head of the institution, but may not include fuel. The commission and each institution shall maintain one purchase card for use only in and for situations declared an emergency by the president of the institution and approved by the chancellor. Such emergencies may include, but are not limited to, partial or total destruction of a campus facility; loss of a critical component of utility infrastructure; heating, ventilation, or air conditioning failure in an essential academic building; loss of campus road, parking lot or campus entrance; or a local, regional, or national emergency situation that has a direct impact on the campus.
  (d) Notwithstanding the provisions of section ten-f, article three, chapter twelve of this code, by the thirtieth day of June, two thousand four, the auditor shall accept any receiving report submitted in a format utilizing electronic media.
  (e) The Legislature finds that an emergency exists, and, therefore, by the first day of July, two thousand three, the commission shall file an emergency legislative rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code. The rule shall provide for institutions individually or cooperatively to maximize their use of any of the following purchasing practices that are determined to provide a financial advantage:
  (1) Bulk purchasing;
  (2) Reverse bidding;
  (3) Electronic marketplaces; and
  (4) Electronic remitting.
  (f) Each institution shall establish a consortium with at least one other institution in the most cost-efficient manner feasible, to consolidate the following operations and student services:
  (1) Payroll operations;
  (2) Human resources operations;
  (3) Warehousing operations;
  (4) Financial transactions;
  (5) Student financial aid application, processing and disbursement;
  (6) Standard and bulk purchasing; and
  (7) Any other operation or service appropriate for consolidation as determined by the commission.
  (g) An institution may charge a fee to each institution for which it provides a service or performs an operation. The fee rate shall be in the best interest of both the institution being served and the providing institution, as approved by the commission.
  (h) Any community and technical college, college and university may provide the services authorized by this section for the benefit of any governmental body or public or private institution.
  (i) Commencing with the two thousand four fall academic term, each institution shall reduce its number of low-enrollment sections of introductory courses. To the maximum extent practicable, institutions shall use distance learning to consolidate the course sections. The commission shall report the progress of the reduction to the legislative oversight commission on education accountability by the first day of December, two thousand four.
  (j) An institution shall use its natural resources and alternative fuel resources to the maximum extent feasible. The institution may supply the resources for its own use and for use by any other institution. The institution may supply the resources to the general public at fair market value. An institution shall maximize all federal or grant funds available for research regarding alternative energy sources, and may develop research parks to further the purpose of this section and to expand the economic development opportunities in the state.
  (k) Any cost-savings realized or fee procured or retained by an institution pursuant to implementation of the provisions of this section shall be retained by the institution.
  (l) In assuring the fiscal integrity of processes implemented under this section, at a minimum, the commission has the following responsibilities:
  (1) To conduct a performance audit of the policies, procedures and results of the procurement of goods and services by the state institutions of higher education;
  (2) To make progress reports on the implementation of this section to the legislative oversight commission on education accountability throughout the two thousand three interim meetings period;
  (3) To make a comprehensive report to the legislative oversight commission on education accountability by the first day of December, two thousand three, on the results of the performance audit, together with any recommendations for additional actions that might be taken to improve the efficiency, effectiveness and economy of the administrative operations of the state institutions of higher education and the commission.
  (m) The commission shall report annually to the legislative oversight commission on education accountability regarding any savings achieved by implementing the provisions of this section.
ARTICLE 6. ADVISORY COUNCILS.

§18B-6-4b. Institutional classified employee council.
  (a) For the purposes of this section the following words have the specified meanings unless the context clearly indicates a different meaning:
__(1) 'Council' or 'staff council' means the advisory group of classified employees formed on each campus of state institutions of higher education pursuant to subsections (b) and (c) of this section; and
__(2) 'State institutions of higher education' means all institutions as defined in section two, article one of this chapter and, additionally, Potomac state college of West Virginia university, West Virginia university at Parkersburg, West Virginia university institute of technology, Robert C. Byrd health sciences Charleston division of West Virginia university, the Marshall university graduate college, New River community and technical college, the higher education policy commission and the West Virginia network for educational telecomputing.
__(b) Effective the first day of April, two thousand three, there is established at each state institution of higher education an institutional classified employees advisory council to be known as the staff council. Current members of staff councils and their officers who have been duly elected shall continue to serve with all the rights, privileges and responsibilities prescribed by this section until the time that members elected as set forth in subsection (c) of this section assume office.
__(1) During the month of April of each odd-numbered year, beginning in the year two thousand three, each president or other administrative head of a state institution of higher education, at the direction of the council, and in accordance with procedures established by the council, shall convene a meeting or otherwise institute a balloting process to elect members of the staff council as follows:
__(A) Two classified employees from the administrative/managerial sector;
__(B) Two classified employees from the professional/non-teaching sector;
__(C) Two classified employees from the paraprofessional sector;
__(D) Two classified employees from the secretarial/clerical sector;
__(E) Two classified employees from the physical plant/maintenance sector; and
__(F) The member who is elected to serve on the advisory council of classified employees pursuant to section four-a of this article. This person shall serve as an ex officio, voting member of the staff council and shall report to the council on meetings of the advisory council and the board of governors.
__(2) Classified employees at Marshall university and West Virginia university may elect five classified employees from each of the five sectors to serve on the staff council.
__(3) Members shall serve a term of two years which term shall begin on the first day of July of each odd-numbered year. Members of the council are eligible to succeed themselves.
__(4) Classified employees shall select one of their members to serve as chair. All classified employees at the institution are eligible to vote for the chair by any method approved by a majority of their members. The chair is eligible to succeed himself or herself.
__(5) The staff council shall meet at least monthly or at the call of the chair. With appropriate notification to the institutional president, the chair may convene staff council meetings for the purpose of sharing information and discussing issues affecting the classified employees or the efficient and effective operations of the institution.
__(6) The president of the institution shall meet at least quarterly with the staff council to discuss matters affecting classified employees.
__(7) The governing board shall meet at least annually with the staff council to discuss matters affecting classified employees and the effective and efficient management of the institution.
ARTICLE 7. PERSONNEL GENERALLY.
§18B-7-4. Notice to probationary faculty members of retention or nonretention; hearing.
  (a) The president or other administrative head of each state institution of higher education shall give written notice to probationary faculty members concerning their retention or nonretention for the ensuing academic year: (1) Not later than the first day of March for those probationary faculty members who are in their first academic year of service; (2) not later than the fifteenth day of December for those probationary faculty members who are in their second academic year of service; and (3) at least one year before the expiration of an appointment for those probationary faculty members who have been employed two or more years with the institution. Such notice to those probationary faculty members not being retained shall be by certified mail, return receipt requested.
__(b) For any probationary faculty member employed after the effective date of this section, the president or other administrative head of each institution shall give written notice concerning retention or nonretention for the ensuing academic year not later than the first day of March.
__~~(b)~~ (c) ~~Upon request of~~ If a request is made by the probationary faculty member not retained, the president or other administrative head of the institution shall ~~within ten days, and by certified mail,~~ inform the probationary faculty member by certified mail within ten days of the reasons for nonretention. Any probationary faculty member who desires to appeal the decision shall ~~utilize~~ use the grievance procedure established in article six-a, chapter twenty-nine of this code. If it is concluded that the reasons for nonretention are arbitrary or capricious or without a factual basis, the faculty member shall be retained for the ensuing academic year.
  ~~(c)~~ (d) The term 'probationary faculty member' shall be defined according to rules promulgated by the governing boards. The rights ~~herein~~ provided to probationary faculty members by this section are in addition to, and not in lieu of, other rights afforded them by other rules and other provisions of law.
§18B-7-6. Adjunct faculty; part-time and temporary classified employees.
  (a) ~~Before the first day of January, one thousand nine hundred ninety-four~~ Each governing board, with the advice and assistance of the faculty ~~senates~~ senate, shall establish a policy ~~pursuant to the provisions of article three-a, chapter twenty-nine-a of this code~~ regarding the role of adjunct faculty at state institutions of higher education and define an appropriate balance between full-time and adjunct faculty members.
  (b) ~~Before the first day of January, one thousand nine hundred ninety-four~~ Each governing board, with the advice and assistance of the staff ~~councils~~ council ~~and other groups representing classified employees,~~ shall establish a policy ~~pursuant to the provisions of article three-a, chapter twenty-nine-a of this code~~ regarding the role of part-time classified employees. ~~at state institutions of higher education.~~ Such policy shall discourage the hiring of part-time employees solely to avoid the payment of benefits or in lieu of full-time employees and shall provide all qualified classified employees with nine-month or ten-month contracts with the opportunity to accept part-time or full- time summer employment before new persons are hired for the part-time or full-time employment.
  (c) Each governing board shall establish the policies required by this section by the first day of July, two thousand three. The commission shall report to the legislative oversight commission on education accountability by the first day of December, two thousand three, regarding the development and implementation of these policies, including the number of adjunct faculty and part- time employees at each institution and the level of compliance with the policies. In making determinations regarding the development, implementation and compliance with the policies required by this section, the commission shall take into account the special flexibility needs of community and technical colleges and shall allow greater discretion for these institutions to make decisions regarding employing adjunct faculty.
ARTICLE 8. HIGHER EDUCATION FULL-TIME FACULTY SALARIES.

§18B-8-3. Faculty salary policies; reductions in salary prohibited; salary increase upon promotion in rank.

  (a) On or before the first day of July of each year, each faculty member then employed shall be given notice by the appropriate governing board of the placement on the minimum salary schedule which is appropriate to such faculty member's years of experience and to which such individual has been assigned, notwithstanding the actual salary paid under the provisions of this article.
  (b) Each full-time faculty member employed as of the effective date of this section shall receive for full-time employment at the same academic rank during the academic year one thousand nine hundred ninety-three--ninety-four, and thereafter, a salary which is no less than the salary being paid such faculty member for the academic year one thousand nine hundred ninety-two--ninety- three. No full-time faculty member shall receive a salary which is less than the salary for zero years of experience for the appropriate academic rank as set forth in section two of this article.
  (c) Effective the first day of July, one thousand nine hundred ninety-three, Subject to appropriation by the Legislature therefor, each full-time faculty member shall receive an annual salary increase of two thousand dollars. The Legislature may by general appropriation, or the secretary of the department of education and the arts may allocate through authority set forth under the provisions of chapter five-f of this code, funds to be distributed for the purpose of accommodating market and equity conditions within the system. Any remaining funds shall be applied in accordance with the provisions of subsection (d) of this section.
  (d) Funds remaining after meeting the salary of each full-time faculty member in accordance with subsections (b) and (c) of this section shall be used to pay that amount that is the difference between such salary and the appropriate salary for each full-time faculty member's appropriate placement on the schedule. ~~Provided,~~ ~~That such~~ ~~The~~ ~~amount may be reduced proportionately based upon the amount of funds available for such purpose.~~
  (a) Each governing board shall establish and maintain a faculty salary policy that is competitive and which furthers the goals of attracting, retaining and rewarding high quality faculty.
__~~(e)~~ (b) The salary of any full-time faculty member ~~shall~~ may not be reduced by the provisions of this article.
  ~~(f)~~ (c) Upon promotion in rank, ~~placement on the minimum~~ ~~salary schedule~~ each faculty member shall ~~be such as to provide a~~ receive a salary increase of ~~at least~~ up to ten percent, as determined by the salary policy adopted by the governing board. ~~and shall be at least the amount prescribed for the appropriate academic rank to which promoted at zero years of experience.~~
ARTICLE 9. CLASSIFIED EMPLOYEE SALARY SCHEDULE AND CLASSIFICATION SYSTEM.

§18B-9-5. Classified employee salary.
  (a) Commencing with the fiscal year beginning on the first day of July, one thousand nine hundred ninety-eight, and each fiscal year thereafter, each classified employee with three or more years of experience shall receive an annual salary increase equal to fifty dollars times the employee's years of experience. ~~Provided~~, That the annual salary increase may not exceed the amount granted for the maximum of twenty years of experience These incremental increases are in lieu of any salary increase received pursuant to section two, article five, chapter five of this code; are in addition to any across-the-board, cost-of-living or percentage salary increases which may be granted in any fiscal year by the Legislature; and shall be paid in like manner as the annual payment to eligible state employees of the incremental salary increases based on years of service under the provisions of section two, article five, chapter five of this code.
  ~~(b)~~ (a) Any classified employee may receive merit increases and salary adjustments in accordance with policies established by the board of governors: Provided, That merit raises may be granted only pursuant to a rule adopted by the board of governors, and approved by the chancellor, which provides a fair and equitable basis for granting merit raises pursuant to regular evaluations based upon reasonable performance standards.
  ~~(c)~~ (b) The current annual salary of any classified employee may not be reduced by the provisions of this article nor by any other action inconsistent with the provisions of this article, and nothing in this article may be construed to prohibit promotion of any classified employee to a job title carrying a higher pay grade if the promotion is in accordance with the provisions of this article and the personnel classification system established by the appropriate governing board.
§18B-9-10. Higher education employees' catastrophic leave bank and leave transfer.
  (a) For the purposes of this section, 'employee' means:
__(1) A classified or nonclassified employee who is employed by ~~the~~ a higher education governing board or by the ~~central office~~ policy commission; or
__(2) A faculty member, as defined in section one, article eight of this chapter, who is eligible to accrue sick leave.
__~~(a)~~ (b) An employee may donate sick and annual leave to a leave bank established and operated in accordance with the provisions of subsection ~~(c)~~ (d) of this section or directly to another employee in accordance with the provisions of subsection ~~(d)~~ (e) of this section. No employee ~~shall~~ may be compelled to donate sick or annual leave. Any leave donated by an employee pursuant to this section shall be used only for the purpose of catastrophic illness or injury as defined in subsection ~~(b)~~ (c) of this section and shall reduce, to the extent of such donation, the number of days of annual or sick leave to which the employee is entitled.
  ~~(b)~~ (c) For the purpose of this section, a catastrophic illness or injury ~~means an illness or injury which~~ is one that is expected to incapacitate the employee and ~~which creates~~ create a financial hardship because the employee has exhausted all sick and annual leave and other paid time off. Catastrophic illness or injury ~~shall~~ also ~~include~~ includes an incapacitated immediate family member as defined by ~~the appropriate~~ a governing board or the policy commission, as appropriate, if this results in the employee being required to take time off from work for an extended period of time to care for the family member and if the employee has exhausted all sick and annual leave and other paid time off.
  ~~(c)~~ (d) A leave bank or banks may be established at each state institution of higher education and the ~~central office~~ policy commission to which employees may donate either sick or annual leave. The bank or banks may be established jointly by the ~~central office~~ policy commission and ~~both~~ the governing boards or may be established for the ~~central office~~ policy commission and each of the governing boards~~, or may be established for the central office and each institution of higher education under either governing board~~. Sick or annual leave may be deposited in the leave bank, and such deposit shall be reflected as a day-for-day deduction from the sick or annual leave balance of the depositing employee.
  ~~Such deposited~~ Donated leave may be withdrawn by any employee experiencing a catastrophic illness or injury ~~as those terms are defined in subsection (b)~~ ~~(c)~~ ~~of this section~~ when the following conditions are met:
__(1) ~~upon appropriate verification~~ The president of the institution or the chancellor of the policy commission, as appropriate, verifies that the employee is unable to work due to the catastrophic illness or injury ~~as determined by the president of the institution or senior administrator~~; and
__(2) ~~approval of the withdrawal by~~ The president of the institution or ~~senior administrator~~ the chancellor, as appropriate, approves the withdrawal and provides written notice to the personnel office.
  The withdrawal shall be reflected as a day-for-day addition to the leave balance of the withdrawing employee.
  ~~(d)~~ (e) Sick or annual leave may be donated to any employee experiencing a catastrophic illness or injury ~~as those terms are defined in subsection (b)~~ ~~(c)~~ ~~of this section~~. Such leave shall be donated at the request of the employee ~~upon~~ after appropriate verification that the employee is unable to work due to the catastrophic illness or injury as determined by the president of the institution or ~~senior administrator~~ the chancellor. ~~Upon approval of the~~ When transfer of sick or annual leave is approved by the president of the institution or ~~senior administrator~~ the chancellor, any employee may~~, upon written notice to the personnel office,~~ donate sick or annual leave in one-day increments by providing written notice to the personnel office. Donations shall be reflected as a day-for-day deduction from the sick or annual leave balance of the donating employee. An employee receiving the ~~transfer of~~ donated sick or annual leave shall have any time which is donated credited to ~~such employee's~~ his or her account in one-day increments and reflected as a day-for-day addition to the leave balance of the receiving employee.
  ~~(e)~~ (f) Use of donated credits may not exceed a maximum of twelve continuous calendar months for any one catastrophic illness or injury. The total amount of sick or annual leave withdrawn or received may not exceed an amount sufficient to ensure the continuance of regular compensation and ~~shall~~ may not be used to extend insurance coverage pursuant to section thirteen, article sixteen, chapter five of this code. An employee withdrawing or receiving donations of sick or annual leave pursuant to this section shall use any leave personally accrued on a monthly basis prior to receiving additional donated sick or annual leave.
  ~~(f)~~ (g) ~~Transfer of~~ Donated sick or annual leave deposited in an institutional leave bank or transferred under subsection ~~(c)~~ (d) of this section may be inter-institutional in accordance with the policies of the appropriate governing board. Each institution and the ~~central office shall be~~ policy commission is responsible for the administration of the sick or annual leave deposits, withdrawals and transfers of its employees. Rules implementing the provisions of this section may be adopted jointly or separately by the governing boards and the policy commission in accordance with article three-a, chapter twenty-nine-a of this code.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.
  (a) Each governing board shall fix tuition and other fees for each school term for the different classes or categories of students enrolling at each state institution of higher education under its jurisdiction and may include among such fees any one or more of the following:
  (1) Health service fees;
  (2) Infirmary fees;
  (3) Student activities, recreational, athletic and extracurricular fees, which fees may be used to finance a students' attorney to perform legal services for students in civil matters at such institutions. ~~Provided, That~~ Such legal services ~~shall be limited only to~~ are limited to only those types of cases, programs or services approved by the administrative head of ~~such~~ the institution where ~~such~~ the legal services are to be performed; and
  (4) Graduate center fees and branch college fees, or either, if the establishment and operations of graduate centers or branch colleges are otherwise authorized by law.
  (b) All fees collected at any graduate center or at any branch college shall be paid into special funds and shall be used solely for the maintenance and operation of the graduate center or branch college at which they were collected: ~~Provided,~~ ~~That~~ The commission shall set tuition and fee goals for residents at each institution after examining tuition and fees at the institutions' peers.: ~~Provided, however,~~ ~~That, effective the first day of July, two thousand one,~~ Tuition and fees for nonresident, undergraduate students shall, at a minimum, cover actual instructional costs as determined in accordance with commission policy.: ~~Provided further, That~~ Students enrolled in undergraduate courses offered at off-campus locations shall pay an off-campus instruction fee and ~~shall not~~ may not be required to pay the athletic fee and the student activity fee.
  (c) The off-campus instruction fee shall be used solely for the support of off-campus courses offered by the institution. Off-campus locations for each institution shall be defined by the appropriate governing board. The schedule of all fees, and any changes therein, shall be entered in the minutes of the meeting of the appropriate governing board, and the board shall file with the legislative auditor a certified copy of such schedule and changes.
  (d) In addition to the fees mentioned in the preceding paragraph, each governing board may impose and collect a student union building fee. All such building fees collected at an institution shall be paid into a special student union building fund for such institution, which is hereby created in the state treasury.~~, and~~ Pursuant to the provisions of section ten of this article, the fees shall be used only for the following purposes:
  (1) The construction, operation and maintenance of a student union building or a combination student union and dining hall building; ~~or for~~
  (2) The payment of the principal of and interest on any bond issued to finance part or all of the construction of a student union building or a combination student union and dining hall building; or
  (3) The renovation of an existing structure for use as a student union building or a combination student union and dining hall building, all as more fully provided in section ten of this article.
  Any moneys in such funds not needed immediately for such purposes may be invested in any such bonds or other securities as are now or hereafter authorized as proper investments for state funds.
  (e) The boards shall establish the rates to be charged full-time students enrolled during a regular academic term.
  (1) For fee purposes, a full-time undergraduate student is one enrolled for twelve or more credit hours in a regular term, and a full-time graduate student is one enrolled for nine or more credit hours in a regular term.
  (2) Undergraduate students taking fewer than twelve credit hours in a regular term shall have their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour, and graduate students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata based upon one ninth of the full-time rate per credit hour.
  (3) Fees for students enrolled in summer terms or other nontraditional time periods shall be prorated based upon the number of credit hours for which the student enrolls in accordance with the above provisions.
  (f) All fees are due and payable by the student upon enrollment and registration for classes except as provided for in this subsection:
  (1) The governing boards shall permit fee payments to be made in up to three installments over the course of the academic term. ~~Provided, That all fees must~~ All fees shall be paid prior to the awarding of course credit at the end of the academic term.
  (2) The governing boards also shall authorize the acceptance of credit cards or other payment methods which may be generally available to students for the payment of fees. ~~Provided~~, ~~That~~ The governing boards may charge the students for the reasonable and customary charges incurred in accepting credit cards and other methods of payment.
  (3) If a governing board determines that ~~the finances of any student were~~ a student's finances are affected adversely by a legal work stoppage, ~~that commenced on or after the first day of January, one thousand nine hundred ninety-three~~ it may allow the student an additional six months to pay the fees for any academic term. ~~Provided, That~~ The governing board shall determine on a case-by-case basis if the finances of a student ~~were~~ are affected adversely.
  (g) On or before the first day of July, two thousand one, the chancellor for higher education shall review policy series twenty-two of the governing boards, related to assessment, payment and refund of fees and determine whether a new rule should be adopted regarding the refund of any fees upon the voluntary or involuntary withdrawal from classes of any student. The rules The rule related to assessment, payment and refund of fees including refund of fees upon voluntary or involuntary withdrawal from classes, shall comply with all applicable state and federal laws and shall be uniformly applied throughout the system.
  (h) In addition to the other fees ~~mentioned in the preceding subsections~~ provided in this section, each governing board may impose, collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest research group ~~Provided, That~~ if the students at ~~such~~ the institution demonstrate support for the increased fee in a manner and method established by that institution's elected student government. ~~Provided, however, That such fees shall~~ The fee may not be used to finance litigation against the institution.
  (i) Any proposed fee increase which would become effective during the transition year beginning on the first day of July, two thousand, and ending on the thirtieth day of June, two thousand one, and which has been approved by the governing board, shall then be submitted by the governing board to the secretary for education and the arts for approval. Such approval shall be granted only upon the certification that such institution requesting a fee increase is in compliance with the strategic plans required to be submitted, pursuant to section one-b, article one of this chapter. Notice, in the form of a report, shall be provided by the chancellor to the legislative oversight commission on education accountability describing such fee increases and showing how such increases compare with the average tuition and fees charged at comparable peer institutions in member states of the southern regional education board.
  ~~(j) Effective the first day of July, two thousand one, tuition and fees rates shall be determined in accordance with subsections (k), (l) and (m) of this section.~~
  ~~(k) Effective the first day of July, two thousand one,~~ Institutions shall retain tuition and fee revenues not pledged for bonded indebtedness or other purposes in accordance with a revised tuition policy adopted by the respective governing boards and approved by the commission. The revised tuition policy shall:
  (1) Provide a basis for establishing nonresident tuition and fees;
  (2) Allow institutions to charge different tuition and fees for different programs; ~~and~~.
__(3) Provide that a board of governors may propose to the commission a mandatory auxiliary fee under the following conditions:
__(A) The fee shall be approved by the commission and either the students at the institution or the Legislature before becoming effective;
__(B) Increases may not exceed previous state subsidies by more than ten percent;
__(C) The fee may be used only to replace existing state funds subsidizing auxiliary services such as athletics or bookstores;
__(D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the amount of money generated for the institution by the fees and that amount shall be returned to general revenue. All state subsidies for the auxiliary services shall cease five years from the date the mandatory auxiliary fee was implemented;
__(E) The commission shall certify to the Legislature by the first day of October in the fiscal year following implementation of the fee, and annually thereafter, the amount of fees collected for each of the five years.
__~~(3)~~ (4) Establish methodology, where applicable, to ensure that, within the appropriate time period under the compact, community and technical college tuition rates for community and technical college students in all independently accredited community and technical colleges will be commensurate with the tuition and fees charged by their peer institutions.
  ~~(l) No penalty shall~~ (j) A penalty may not be imposed by the commission upon any institution based upon the number of nonresidents who attend the institution unless the commission determines that admission of nonresidents to any institution or program of study within the institution is impeding unreasonably the ability of the resident students to attend the institution or participate in the programs of the institution. The institutions shall report annually to the commission on the numbers of ~~out-of-state residents~~ nonresidents and such other enrollment information as the commission may request.
  ~~(m)~~ (k) Tuition and fee increases of the governing boards are subject to rules adopted by the commission pursuant to subsection (a), section four, article one-b of this chapter.
  (1) A governing board may propose tuition and fee increases of up to nine and one-half percent for undergraduate resident students for any fiscal year except that proposed tuition and fees increases for community and technical colleges may be up to four and three quarters percent. Any proposed increase shall be approved by the commission. The commission shall examine individually each request from a governing board for an increase. Approval for any increase shall be based on a determination by the commission that the institution has met the following conditions:
__(A) Has maximized resources available through nonresident tuition and fee charges to the satisfaction of the commission;
__(B) Is consistently achieving the benchmarks established in the compact of the institution pursuant to the provisions of article one-a of this chapter;
__(C) Is continuously pursuing the statewide goals for post-secondary education and the statewide compact established in articles one and one-a of this chapter;
__(D) Is implementing the efficiency measures required by section nine, article five of this chapter;
__(E) Has demonstrated to the satisfaction of the commission that an increase will be used to maintain high-quality programs at the institution;
__(F) Has demonstrated to the satisfaction of the commission that the institution is making adequate progress toward achieving the goals for education established by the southern regional education board; and
__(G) To the extent authorized, will increase by up to five percent the available tuition and fee waivers provided by the institution. The increased waivers may not be used for athletics.
__(2) In making a determination on tuition and fee proposals, the commission also may take into consideration whether the per capita income in an institution's service region exceeds the state per capita income. For the purposes of this subdivision only:
__(A) Service region is the county in which the main campus of the institution is located and the contiguous West Virginia counties; and
__(B) Per capita income for the service region shall be computed using the most current annual, county-level per capita income data published by the United States department of commerce, bureau of economic analysis, weighted by the compatible year population estimates published by the United States census bureau.
__(3) This section may not be construed to require equal increases among institutions or to require any level of increase at an institution.
__(4) The commission shall report to the legislative oversight commission on education accountability regarding the basis for each approval or denial as determined using the criteria established in subdivision (1) of this subsection.
§18B-10-14. Bookstores.
  The appropriate governing board of each state institution of higher education shall have the authority to establish and operate a bookstore at the institution. The bookstore shall be operated for the use of the institution itself, including each of its schools and departments, in making purchases of books, stationery and other school and office supplies generally carried in college stores, and for the benefit of students and faculty members in purchasing such products for their own use, but no sales shall be made to the general public. The prices to be charged the institution, the students and the faculty for such products shall be fixed by the governing board, shall not be less than the prices fixed by any fair trade agreements, and shall in all cases include in addition to the purchase price paid by the bookstore a sufficient handling charge to cover all expenses incurred for personal and other services, supplies and equipment, storage, and other operating expenses, to the end that the prices charged shall be commensurate with the total cost to the state of operating the bookstore.
  Each governing board shall also ensure that bookstores operated at institutions under its jurisdiction meet the additional objective of minimizing the costs to students of purchasing textbooks by adopting policies which may require the repurchase and resale of textbooks on an institutional or a statewide basis and provide for the use of certain basic textbooks for a reasonable number of years.
  All moneys derived from the operation of the store shall be paid into a special revenue fund as provided in section two, article two, chapter twelve of this code. Each governing board shall, subject to the approval of the governor, fix, and, from time to time, change the amount of the revolving fund necessary for the proper and efficient operation of each bookstore.
  Moneys derived from the operation of the bookstore shall be used first to replenish the stock of goods and to pay the costs of operating and maintaining the store. From any balance in the Marshall university bookstore fund not needed for operation and maintenance and replenishing the stock of goods, the governing board of that institution shall have authority to expend a sum not to exceed two hundred thousand dollars for the construction of quarters to house the bookstore in the university center at Marshall university. Until such quarters for housing the bookstore are completed, the governing board of Marshall university and the governor shall take this authorization into account in fixing the amount of the revolving fund for the Marshall university bookstore. Notwithstanding any other provision of this section, any institution that has contracted with a private entity for bookstore operation shall deposit into an appropriate account all revenue generated by the operation and enuring to the benefit of the institution. The institution shall use the funds for non- athletic scholarships.
ARTICLE 14. MISCELLANEOUS.
§18B-14-11. Health insurance coverage option study.
  (a) Together, the commission and the public employees insurance agency shall submit to the legislative oversight commission on education accountability by the first day of December, two thousand three, draft legislation regarding benefits offered by the agency.
__(b) The draft legislation shall provide:
__(1) Incentives for employees insured by the agency to decline benefits from the agency. Incentives may include:
__(A) Optional purchase of supplemental benefits;
__(B) Payment of a percentage of the savings realized by the employer due to cancellation of insurance coverage for the employee; and
__(C) Any other incentive determined appropriate by the agency and commission;
__(2) A requirement that a public employee may decline benefits from the agency only if that employee verifies that he or she has health insurance coverage by an alternate provider;
__(3) A procedure for verifying the alternate coverage required by subdivision (2) of this subsection at least annually; and
__(4) A procedure whereby an employee who has declined coverage pursuant to this section will be reinstated automatically in the agency's program immediately following loss of the alternate coverage."
  And,
  By amending the title of the bill to read as follows:
  H. B. 2224 - "A Bill to repeal section two, article eight, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one, article five, chapter five of said code; to amend and reenact section two, article one, chapter eighteen-b of said code; to further amend said article by adding thereto two new sections, designated sections eight and ten; to amend and reenact section three, article one-a of said chapter; to amend and reenact section six, article one-b of said chapter; to further amend said article by adding thereto a new section, designated section ten; to amend and reenact sections three, four, and eight, article three-c of said chapter; to amend article six of said chapter by adding thereto a new section, designated section four-b; to amend and reenact sections four and six, article seven of said chapter; to amend and reenact section three, article eight of said chapter; to amend and reenact sections five and ten, article nine of said chapter; to amend and reenact sections one and fourteen, article ten of said chapter; and to amend article fourteen of said chapter by adding thereto a new section, designated section eleven, all relating to public higher education; administrative and programmatic efficiencies; removing the twenty-year cap on the annual experience increment for classified employees; definitions; clarifying student rights in cases of institutional mergers or administrative linkages; providing that Potomac state college become a fully-integrated division of West Virginia university by the first day of July, two thousand five; abolishing advisory board and providing for board of visitors; setting limits on operational costs; incorporating auxiliary enterprises into West Virginia university and authorizing board of governors to set rates for auxiliary services and products; providing for areas of academic emphasis at the Potomac campus; authorizing the policy commission to change the mission of the Potomac campus; providing for contracting with eastern West Virginia community and technical college for certain programs and services; requiring Potomac state college and eastern West Virginia community and technical college to report to the policy commission on plans, accomplishments and recommendations in implementing the cooperative relationship, and requiring the policy commission to report to the legislative oversight commission education accountability on the cooperative activities and results; requiring the policy commission to obtain approval from the legislative oversight commission on education accountability before changing institutional peers; providing for appointment of provosts; providing procedure for evaluating administrative heads of institutions; directing Concord college and Bluefield state college to make a joint study on progress toward meeting goals; requiring report to policy commission by the first day of September, two thousand three; directing policy commission to report to the legislative oversight commission on education accountability on results of study and recommendations by the first day of November, two thousand three; requiring policy commission to act to implement necessary changes and to monitor institutional progress toward meeting goals; changing name of administrative head of component community and technical colleges from "president" to "provost", clarifying reporting relationships of provosts; abolishing responsibility districts for Bluefield state community and technical college and Glenville state community and technical college; requiring Glenville state college, Bluefield state college and Fairmont state college to agree by date certain on transfer of certain property, obligations and staff; adding counties to the responsibility district of Fairmont state college and requiring the policy commission to resolve any disagreement; removing a county from the responsibility district of Shepherd community and technical college; creating a responsibility district for New River community and technical college; deleting references to Bluefield community and technical college and the center for higher education and work force development at Beckley; creating New River community and technical college of Bluefield state college from existing components and entities; providing that Bluefield state college may retain certain associate degree programs; providing findings and intent; providing for governance and program offerings; authorizing certain expenditures; authorizing contractual arrangements; establishing staff council at each public higher education campus; providing for election of members and chair; providing for meetings; requiring institutions to give notice to probationary faculty of retention or nonretention by date certain; requiring governing boards to establish required policies by date certain; directing policy commission to report to legislative oversight commission on education accountability on policies including number of adjunct faculty and part-time employees at each institution; directing policy commission to consider need for flexibility at community and technical colleges when reviewing institutional policies; deleting obsolete language referencing faculty salary schedule; providing increase in salary up to ten percent for faculty when promoted in rank as determined by the governing board; directing each governing board to establish and maintain a competitive faculty salary schedule; removing obsolete references to annual experience increment; permitting certain faculty members to participate in catastrophic leave banks; authorizing governing boards to propose mandatory auxiliary fee increases; requiring approval by policy commission and either the students of the proposing institution or the Legislature; purposes for which fee may be used; providing for reducing state subsidies to zero over five years and returning money to general revenue; requiring policy commission to certify amount generated by the fee for each institution annually; limiting undergraduate tuition and fee increases for residents to no more than four and three-quarters percent for community and technical colleges and no more than nine and one-half percent for all other institutions in any fiscal year; requiring that tuition and fee increases be approved by the policy commission based upon certain conditions; requiring the policy commission to report to the legislative oversight commission on education accountability on the basis used to determine approval or disapproval of an institutional request for tuition and fee increases; authorizing policy commission to consider per capita income in an institution's service area when making determinations on granting tuition and fee increases; providing for calculating per capita income; requiring certain institutions to deposit bookstore revenue, enuring to the benefit of the institution, into an appropriate account to use for non-athletic scholarships; and requiring the policy commission and the public employees insurance agency to submit to the legislative oversight commission on education accountability by date certain draft legislation providing employee incentives, additional options to purchase supplemental benefits, option to decline insurance, procedure for verifying alternate coverage, and procedure to restore coverage under certain circumstances."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
  On page one of the Senate amendment, by amending the enacting section to read as follows:
  "That section two, article eight, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section one, article five, chapter five of said code be amended and reenacted; that section two, article one, chapter eighteen-b of said code be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections eight and ten; that section three, article one-a of said chapter be amended and reenacted; that section six, article one-b of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten; that sections three, four and eight, article three-c of said chapter be amended and reenacted; that sections three, four, five, six and seven, article five of said chapter be amended and reenacted; the said article be further amended by adding thereto a new section, designated section nine; that article six of said chapter be amended by adding thereto a new section, designated section four-b; that sections four and six, article seven of said chapter be amended and reenacted; that section three, article eight of said chapter be amended and reenacted; that sections five and ten, article nine of said chapter be amended and reenacted; that sections one and fourteen, article ten of said chapter be amended and reenacted; and that article fourteen of said chapter be further amended by adding thereto a new section, designated section eleven, all to read as follows" followed by a colon.
  On page forty-six of the Senate amendment, section five, line twenty-one, following the period, by inserting a new subsection (c), to read as follows:
  "(c) The cost of providing any salary increase pursuant to the provisions of section two, article five, chapter five of this code, shall be borne by the commission or institution from its existing budget. The commission or institution may not increase tuition and fee charges, increase auxiliary fee charges, or receive additional general revenue funds to recover the costs of the increase. Notwithstanding any other provision of this code or law to the contrary, if insufficient funding is available to an institution or the commission to implement the provisions of said section two, funding may be derived from reducing employee positions to any level, in the discretion of the institution or commission, that is sufficient to provide adequate funds, and without regard to seniority."
  On page fifty-seven of the amendment, section nine, line nine, following the word "institution", by striking the comma and inserting in lieu thereof a period.
  On page fifty-seven of the amendment, section nine, line nine, following the word "institution" by striking out the words "but may not include fuel", and inserting in lieu thereof the words "Traveling expenses may not include fuel or food purchases".
  On page fifty-seven of the amendment, section nine, line twenty, following the words "this code" and a comma, by inserting the words "or any other provision of this code or law to the contrary" and a comma.
  On page fifty-seven of the amendment, section nine, line twenty-two, following the word "media", by inserting a comma and the words "and from the effective date of this section shall conduct any audit or investigation of the commission or any institution at its own expense and at no cost to the commission or institution".
  And,
  By amending the title of the bill to read as follows:
  H. B. 2224 - "A Bill to repeal section two, article eight, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one, article five, chapter five of said code; to amend and reenact section two, article one, chapter eighteen-b of said code; to further amend said article by adding thereto two new sections, designated sections eight and ten; to amend and reenact section three, article one-a of said chapter; to amend and reenact section six, article one-b of said chapter; to further amend said article by adding thereto a new section, designated section ten; to amend and reenact sections three, four, and eight, article three-c of said chapter; to amend and reenact sections three, four, five, six, and seven, article five of said chapter; to further amend said article by adding thereto a new section, designated section nine; to amend article six of said chapter by adding thereto a new section, designated section four-b; to amend and reenact sections four and six, article seven of said chapter; to amend and reenact section three, article eight of said chapter; to amend and reenact sections five and ten, article nine of said chapter; to amend and reenact sections one and fourteen, article ten of said chapter; and to amend article fourteen of said chapter by adding thereto a new section, designated section eleven, all relating to higher education; higher education policy commission; governing, advisory and visitor boards; administrative heads; faculty; staff; students; administrative and programmatic efficiencies; definitions; clarifying certain student rights; providing for Potomac state college to become a fully- integrated division of West Virginia university; limiting certain operational costs; incorporation of certain auxiliary enterprises; auxiliary service and product rates; establishing areas of academic emphasis at the Potomac campus; institutional missions; program and service contracts and collaboration; reports to the policy commission, legislative oversight commission on education accountability and Legislature; draft legislation submission requirements; peers; peer approval; appointment and evaluation of administrative heads; directing Concord college and Bluefield state college to make a joint study on progress toward meeting goals; altering sponsoring institutions for certain community and technical college components; implementation of certain institutional changes; monitoring institutional progress toward meeting goals; clarifying reporting relationships of certain provosts; establishing and redesignating certain community and technical college responsibility districts; transfer of certain property, obligations and staff; deleting references to Bluefield community and technical college and the center for higher education and work force development at Beckley; creating New River community and technical college of Bluefield state college from existing components and entities; transfer and retention of certain academic programs; findings and intent; governance and program offerings; expenditures; contractual arrangements; responsibilities and duties of certain executive agencies and officials; expanding certain purchasing authority; eliminating bid preference for institutional print shops; modifying attorney general lease purchase agreement and contract approval; authorizing certain leasing authority for the policy commission and the governing boards; requiring prior review of lease agreements; lease cancellation and renewal; authorized signatures on approved leases; requirements and authorizations for promulgating policies, rules and emergency rules; adjusting purchasing threshold for requiring vendor registration; vendor eligibility; clarifying provisions relating to purchasing; disposal of obsolete or unusable equipment, surplus supplies; application of proceeds; ensuring the fiscal integrity of certain institutional procedures; providing for expanded electronic transfers; expanding purchasing authority on purchase cards; authorizing certain emergency expenditures; consolidating certain financial and administrative operations; authorizing fee charges for services provided; limiting certain fee charges; authorizing certain services to be provided by higher education institutions; reduction of low-enrollment sections of certain courses; directing utilization of certain natural resources and alternative fuel resources; retention of cost savings; establishing staff councils; election of members and chair; meetings; notice to probationary faculty of retention status; consideration of need for flexibility at community and technical colleges when reviewing institutional policies; deleting obsolete language referencing faculty salary schedule; modifying certain salary provisions; competitive faculty salary schedule requirement; removing obsolete references to annual experience increment; providing means for funding certain salary increases; participation in catastrophic leave banks; authorizing certain mandatory auxiliary fee increases; limiting certain tuition and fee increases; increase approval; use of fees; reduction of certain state subsidies; return of funds to general revenue; certification of fee revenues; expanding use of bookstore revenues; and public employees insurance agency benefit option expansion study."
  The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 587), and there were--yeas 89, nays 10, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Ashley, Boggs, Border, Caruth, Leggett, Romine, Schadler, Stalnaker, Stemple and Walters.
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2224) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 589), and there were--yeas 88, nays 9, absent and not voting 3, with the nays and absent and not voting being as follows:
  Nays: Ashley, Blair, Boggs, Border, Leggett, Louisos, Sobonya, Stalnaker and Stemple.
  Absent And Not Voting: Coleman, Hamilton and Yeager.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2224) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Delegate Hamilton requested that the Clerk record him as voting "Yea" on Roll No. 587.
  A message from the Senate, by
  The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
  S. C. R. 60 - "Suspending Joint Rule 3b as to time limit on filing on conference committee reports."
  Resolved by the Legislature of West Virginia, two thirds of the members present agreeing thereto:
  That the time limit established by Joint Rule 3b is hereby suspended for the sixtieth day of this regular session of the seventy-sixth Legislature, and for this day, conference committees may file their reports with the Clerk of each house, said reports to be announced during session, until 9 o'clock, p. m., with a thirty-minute examination period.
  At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (S. C. R. 60) to a committee was dispensed with, and it was taken up for immediate consideration.
  The question now being on the adoption of the resolution, the yeas and nays were taken (Roll No. 588), and there were--yeas 84, nays 15, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Armstead, Ashley, Blair, Border, Carmichael, Duke, Evans, Leggett, Louisos, Schoen, Sobonya, Sumner, Trump, Wakim and Walters.
  Absent And Not Voting: Coleman.
So, two thirds of the members present and voting having voted in the affirmative, the Speaker declared the resolution (S. C. R. 60) adopted.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  H. B. 2363, Authorizing the tax commissioner to suspend a business registration certificate if any business neglects to pay real property taxes thirty days after the delinquent tax list is published.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2414, Relating to thoroughbred breeders association.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That sections ten, thirteen and thirteen-b, article twenty-three, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 23. HORSE AND DOG RACING.
PART VII. TAXATION OF HORSE AND DOG RACING AND PARI-MUTUEL
WAGERING; DISPOSITION OF REVENUES.
§19-23-10. Daily license tax; pari-mutuel pools tax; how taxes paid; alternate tax; credits.
  (a) Any racing association conducting thoroughbred racing at any horse racetrack in this state shall pay each day upon which horse races are run a daily license tax of two hundred fifty dollars. Any racing association conducting harness racing at any horse racetrack in this state shall pay each day upon which horse races are run a daily license tax of one hundred fifty dollars. Any racing association conducting dog races shall pay each day upon which dog races are run a daily license tax of one hundred fifty dollars. In the event thoroughbred racing, harness racing, dog racing, or any combination of the foregoing are conducted on the same day at the same racetrack by the same racing association, only one daily license tax in the amount of two hundred fifty dollars shall be paid for that day. Any daily license tax shall not apply to any local, county or state fair, horse show or agricultural or livestock exposition at which horse racing is conducted for not more than six days.
  (b) Any racing association licensed by the racing commission to conduct thoroughbred racing and permitting and conducting pari-mutuel wagering under the provisions of this article shall, in addition to the daily license tax set forth in subsection (a) of this section, pay to the racing commission, from the commission deducted each day by the licensee from the pari-mutuel pools on thoroughbred racing a tax calculated on the total daily contribution of all pari-mutuel pools conducted or made at any and every thoroughbred race meeting of the licensee licensed under the provisions of this article. The tax, on the pari-mutuel pools conducted or made each day during the months of January, February, March, October, November and December, shall from the effective date of this section and for fiscal year one thousand nine hundred eighty-five be calculated at two and six-tenths percent; for fiscal year one thousand nine hundred eighty-six, be calculated at two and three-tenths percent; for fiscal year one thousand nine hundred eighty-seven, be calculated at two percent of the pool; for fiscal year one thousand nine hundred eighty-eight, be calculated at one and one-half percent; for fiscal year one thousand nine hundred eighty-nine, be calculated at one percent of the pool; for fiscal year one thousand nine hundred ninety, seven tenths of one percent, and for fiscal year one thousand nine hundred ninety-one and each fiscal year thereafter be calculated at four tenths of one percent of the pool; and, on the pari-mutuel pools conducted or made each day during all other months, shall from the effective date of this section and for fiscal year one thousand nine hundred eighty-five, be calculated at three and six-tenths percent; for fiscal year one thousand nine hundred eighty-six, be calculated at three and three-tenths percent; for fiscal year one thousand nine hundred eighty-seven, be calculated at three percent of the pool; for fiscal year one thousand nine hundred eighty-eight, be calculated at two and one-half percent; for fiscal year one thousand nine hundred eighty-nine, be calculated at two percent of the pool; for fiscal year one thousand nine hundred ninety, be calculated at one and seven-tenths percent of the pool; and for fiscal year one thousand nine hundred ninety-one and each fiscal year thereafter, be calculated at one and four- tenths percent of the pool: Provided, That out of the amount realized from the three tenths of one percent decrease in the tax effective for fiscal year one thousand nine hundred ninety-one and thereafter, which decrease correspondingly increases the amount of commission retained by the licensee, the licensee shall annually expend or dedicate: (i) One half of the realized amount for capital improvements in its barn area at the track, subject to the racing commission's prior approval of the plans for the improvements; and (ii) the remaining one half of the realized amount for capital improvements as the licensee may determine appropriate at the track. The term 'capital improvement' shall be as defined by the Internal Revenue Code: Provided, however, That any racing association operating a horse racetrack in this state having an average daily pari-mutuel pool on horse racing of two hundred eighty thousand dollars or less per day for the race meetings of the preceding calendar year shall, in lieu of payment of the pari-mutuel pool tax, calculated as in this subsection, be permitted to conduct pari-mutuel wagering at the horse racetrack on the basis of a daily pari-mutuel pool tax fixed as follows: On the daily pari-mutuel pool not exceeding three hundred thousand dollars the daily pari-mutuel pool tax shall be one thousand dollars plus the otherwise applicable percentage rate imposed by this subsection of the daily pari-mutuel pool, if any, in excess of three hundred thousand dollars: Provided further, That upon the effective date of the reduction of the daily pari-mutuel pool tax to one thousand dollars from the former two thousand dollars, the association or licensee shall daily deposit five hundred dollars into the special fund for regular purses established by subdivision (1), subsection (b), section nine of this article: And provided further, That if an association or licensee qualifying for the foregoing alternate tax conducts more than one racing performance, each consisting of up to ~~ten~~ thirteen races in a calendar day, the association or licensee shall pay both the daily license tax imposed in subsection (a) of this section and the alternate tax in this subsection for each performance: And provided further, That a licensee qualifying for the foregoing alternate tax is excluded from participation in the fund established by section thirteen-b of this article: And provided further, That this exclusion shall not apply to any thoroughbred racetrack at which the licensee has participated in the West Virginia thoroughbred development fund for more than four consecutive years prior to the thirty-first day of December, one thousand nine hundred ninety-two.
  (c) Any racing association licensed by the racing commission to conduct harness racing and permitting and conducting pari-mutuel wagering under the provisions of this article shall, in addition to the daily license tax required under subsection (a) of this section, pay to the racing commission, from the commission deducted each day by the licensee from the pari-mutuel pools on harness racing, as a tax, three percent of the first one hundred thousand dollars wagered, or any part thereof; four percent of the next one hundred fifty thousand dollars; and five and three-fourths percent of all over that amount wagered each day in all pari-mutuel pools conducted or made at any and every harness race meeting of the licensee licensed under the provisions of this article.
  (d) Any racing association licensed by the racing commission to conduct dog racing and permitting and conducting pari-mutuel wagering under the provisions of this article shall, in addition to the daily license tax required under subsection (a) of this section, pay to the racing commission, from the commission deducted each day by the licensee from the pari-mutuel pools on dog racing, as a tax, four percent of the first fifty thousand dollars or any part thereof of the pari-mutuel pools, five percent of the next fifty thousand dollars of the pari-mutuel pools, six percent of the next one hundred thousand dollars of the pari-mutuel pools, seven percent of the next one hundred fifty thousand dollars of the pari-mutuel pools, and eight percent of all over three hundred fifty thousand dollars wagered each day: Provided, That the licensee shall deduct daily from the pari-mutuel tax an amount equal to one tenth of one percent of the daily pari-mutuel pools in dog racing in fiscal year one thousand nine hundred ninety; fifteen hundredths of one percent in fiscal year one thousand nine hundred ninety-one; two tenths of one percent in fiscal year one thousand nine hundred ninety- two; one quarter of one percent in fiscal year one thousand nine hundred ninety-three; and three tenths of one percent in fiscal year one thousand nine hundred ninety-four and every fiscal year thereafter. The amounts deducted shall be paid to the racing commission to be deposited by the racing commission in a banking institution of its choice in a special account to be known as "West Virginia Racing Commission-Special Account-West Virginia Greyhound Breeding Development Fund". The purpose of the fund is to promote better breeding and racing of greyhounds in the state through awards and purses to bonafide resident owners of accredited West Virginia whelped greyhounds. In order to be eligible to receive an award or purse through the fund, the owner of the accredited West Virginia whelped greyhound must be a bonafide resident of this state. To qualify as a bona fide resident of West Virginia, an owner may not claim residency in any other state. An owner must prove bona fide residency by providing to the commission personal income tax returns filed in the state of West Virginia for the most recent tax year and the three previous tax years, has real or personal property in this state on which the owner has paid real or personal property taxes during the most recent tax year and the previous three tax years and an affidavit stating that the owner claims no other state of residency. The racing commission and the West Virginia greyhound owners and breeders association shall maintain a registry for West Virginia bred greyhounds. The moneys shall be expended by the racing commission for purses for stake races, supplemental purse awards, administration, promotion and educational programs involving West Virginia whelped dogs, owned by residents of this state under rules ~~and regulations~~ promulgated by the racing commission. The racing commission shall pay out of the greyhound breeding development fund to each of the licensed dog racing tracks the sum of seventy-five thousand dollars for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-four. The licensee shall deposit the sum into the special fund for regular purses established under the provisions of section nine of this article. The funds shall be expended solely for the purpose of supplementing regular purses under rules ~~and regulations~~ promulgated by the racing commission.
  Supplemental purse awards will be distributed as follows: Supplemental purses shall be paid directly to the owner of an accredited greyhound or, if the greyhound is leased, the owner may choose to designate a percentage of the purse earned directly to the lessor as agreed to via a written purse distribution form on file with the racing commission.
  The owner of accredited West Virginia whelped greyhounds that earn a purse at any West Virginia meet will receive a bonus award calculated at the end of each month as a percentage of the fund dedicated to the owners as purse supplements, which shall be a minimum of fifty percent of the total moneys deposited into the West Virginia greyhound breeding development fund monthly: Provided, That to be considered an accredited West Virginia whelped greyhound, a dog must be domiciled in the state of West Virginia at least twelve months from the whelping date.
  The total amount of the fund available for the owners' awards shall be distributed according to the ratio of purses earned by an accredited greyhound to the total amount earned in races by all accredited West Virginia whelped greyhounds for that month as a percentage of the funds dedicated to the owners' purse supplements.
  The owner of an accredited West Virginia whelped greyhound shall file a purse distribution form with the racing commission for a percentage of his or her dog's earnings to be paid directly to the ~~lessor~~ registered owner or owners of the greyhound. Distribution shall be made on the fifteenth day of each month for the preceding month's achievements.
  In no event shall purses earned at a meet held at a track which did not make contributions to the West Virginia greyhound breeder's development fund out of the daily pool on the day the meet was held qualify or count toward eligibility for supplemental purse awards.
  Any balance in the purse supplement funds after all distributions have been made for the year revert to the general account of the fund for distribution in the following year.
  In an effort to further promote the breeding of quality West Virginia whelped greyhounds, a bonus purse supplement shall be established in the amount of fifty thousand dollars per annum, to be paid in equal quarterly installments of twelve thousand five hundred dollars per quarter using the same method to calculate and distribute these funds as the regular supplemental purse awards. This bonus purse supplement is for three years only, commencing on the first day of July, one thousand nine hundred ninety-three, and ending the thirtieth day of June, one thousand nine hundred ninety-six. This money would come from the current existing balance in the greyhound development fund.
  Each pari-mutuel greyhound track shall provide stakes races for accredited West Virginia whelped greyhounds: Provided, That each pari-mutuel track shall have one juvenile and one open stake race annually. The racing commission shall oversee and approve racing schedules and purse amounts.
  Ten percent of the deposits into the greyhound breeding development fund beginning the first day of July, one thousand nine hundred ninety-three and continuing each year thereafter, shall be withheld by the racing commission and placed in a special revenue account hereby created in the state treasury called the 'administration, promotion and educational account'. The racing commission is authorized to expend the moneys deposited in the administration, promotion and educational account at such times and in such amounts as the commission determines to be necessary for purposes of administering and promoting the greyhound development program: Provided, That beginning with fiscal year one thousand nine hundred ninety-five and in each fiscal year thereafter in which the commission anticipates spending any money from the account, the commission shall submit to the executive department during the budget preparation period prior to the Legislature convening before that fiscal year for inclusion in the executive budget document and budget bill, the recommended expenditures, as well as requests of appropriations for the purpose of administration, promotion and education. The commission shall make an annual report to the Legislature on the status of the administration, promotion and education account, including the previous year's expenditures and projected expenditures for the next year.
  The racing commission, for the fiscal year one thousand nine hundred ninety-four only, may expend up to thirty-five thousand dollars from the West Virginia greyhound breeding development fund to accomplish the purposes of this section without strictly following the requirements in the previous paragraph.
  (e) All daily license and pari-mutuel pools tax payments required under the provisions of this section shall be made to the racing commission or its agent after the last race of each day of each horse or dog race meeting, and the pari-mutuel pools tax payments shall be made from all contributions to all pari-mutuel pools to each and every race of the day.
  (f) Every association or licensee subject to the provisions of this article, including the changed provisions of sections nine and ten of this article, shall annually submit to the racing commission and the Legislature financial statements, including a balance sheet, income statement, statement of change in financial position and an audit of any electronic data system used for pari- mutuel tickets and betting, prepared in accordance with generally accepted auditing standards, as certified by an experienced public accountant or a certified public accountant.

§19-23-13. Disposition of funds for payment of outstanding and unredeemed pari-mutuel tickets; publication of notice; irredeemable tickets; stake races for dog tracks.

  (a) All moneys held by any licensee for the payment of outstanding and unredeemed pari- mutuel tickets, if not claimed within ninety days after the close of a horse or dog race meeting or the televised racing day, as the case may be, in connection with which the tickets were issued, shall be turned over by the licensee to the racing commission within fifteen days after the expiration of the ninety-day period, and the licensee shall give any information required by the racing commission concerning the outstanding and unredeemed tickets. The moneys shall be deposited by the racing commission in a banking institution of its choice in a special account to be known as 'West Virginia Racing Commission Special Account - Unredeemed Pari-Mutuel Tickets.' Notice of the amount, date and place of each deposit shall be given by the racing commission, in writing, to the state treasurer. The racing commission shall then cause to be published a notice to the holders of the outstanding and unredeemed pari-mutuel tickets, notifying them to present their unredeemed tickets for payment at the principal office of the racing commission within ninety days from the date of the publication of the notice. The notice shall be published within fifteen days following the receipt of the outstanding and unredeemed pari-mutuel ticket moneys by the commission from the licensee as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for the publication shall be the county in which the horse or dog race meeting was held and the county in which the televised racing day wagering was conducted in this state.
  (b) Any outstanding and unredeemed pari-mutuel tickets that are not presented for payment within ninety days from the date of the publication of the notice are thereafter irredeemable, and the moneys theretofore held for the redemption of the pari-mutuel tickets shall become the property of the racing commission and shall be expended as provided in this subsection. The racing commission shall maintain separate accounts for each licensee and shall record in each separate account the moneys turned over by the licensee and the amount expended at the licensee's track for the purposes set forth in this subsection. The moneys in the West Virginia racing commission special account - unredeemed pari-mutuel tickets shall be expended as follows:
  (1) To the owner of the winning horse in any horse race at a horse race meeting held or conducted by any licensee: Provided, That the owner of the horse is at the time of the horse race a bona fide resident of this state, a sum equal to ten percent of the purse won by the horse at that race. The commission may require proof that the owner was, at the time of the race, a bona fide resident of this state. Upon proof by the owner that he or she filed a personal income tax return in this state for the previous two years and that he or she owned real or personal property in this state and paid taxes in this state on real or personal property for the previous two years, he or she shall be presumed to be a bona fide resident of this state; and
  (2) To the breeder (that is, the owner of the mare) of the winning horse in any horse race at a horse race meeting held or conducted by any licensee: Provided, That the mare foaled in this state, a sum equal to ten percent of the purse won by the horse; and
  (3) To the owner of the stallion which sired the winning horse in any horse race at a horse race meeting held or conducted by any licensee: Provided, That the mare which foaled the winning horse was served by a stallion standing and registered in this state, a sum equal to ten percent of the purse won by the horse; and
  (4) To those horse racing licensees not participating in the thoroughbred development fund authorized in section thirteen-b of this article, the unexpended balance of the licensee's account not expended as provided in subdivisions (1), (2) and (3) of this subsection: Provided, That all moneys distributed under this subdivision shall be expended solely for capital improvements at the licensee's track: Provided, however, That the capital improvements must be approved, in writing, by the West Virginia racing commission before funds are expended by the licensee for that capital improvement; and
  (5) When the moneys in the special account, known as the West Virginia racing commission special account - unredeemed pari-mutuel tickets will more than satisfy the requirements of subdivisions (1), (2), (3) and (4) of this subsection, the West Virginia racing commission shall have the authority to expend the excess moneys from unredeemed horse racing pari-mutuel tickets as purse money in any race conditioned exclusively for West Virginia bred or sired horses, and to expend the excess moneys from unredeemed dog racing pari-mutuel tickets in supplementing purses and establishing stake races and dog racing handicaps at the dog tracks: Provided, That subject to the availability of funds, the commission shall, after the requirements of subdivisions (1), (2), (3) and (4) of this subsection have been satisfied:
  (A) Transfer annually two hundred thousand dollars to the West Virginia racing commission special account - West Virginia greyhound breeding development fund; and
  (B) Transfer annually two hundred thousand dollars into a separate account to be used for stakes races for West Virginia bred greyhounds at dog racetracks~~; and~~
  (C) Transfer annually two hundred thousand dollars to a trust maintained and administered by the organization which is recognized by the West Virginia racing commission, pursuant to a legislative rule proposed for promulgation by the commission and authorized by the Legislature, as the representative of the majority of the active jockeys in West Virginia, for the purpose of providing health and disability benefits to eligible active or disabled West Virginia jockeys and their dependents in accordance with eligibility criteria established by said organization. For purposes of this section in determining health benefits, an eligible active jockey is one who rides at least one hundred mounts per calendar year of which fifty-one must be in the state of West Virginia: ~~Provided,~~ ~~That a jockey is not eligible for health benefits if he or she receives health benefits from any other state; and~~
  (D) After all payments to satisfy the requirements of (A), (B) and (C) of this proviso have been satisfied, the commission shall have authority to transfer one hundred fifty thousand dollars left from all uncashed pari-mutuel tickets to the trust maintained and administered by the organization which is recognized by the West Virginia racing commission, pursuant to legislative rule proposed for promulgation by the commission and authorized by the Legislature as the representative of the majority of the active jockeys in West Virginia.
  (c) The commission shall submit to the legislative auditor a quarterly report and accounting of the income, expenditures and unobligated balance in the special account created by this section known as the West Virginia racing commission special account - unredeemed pari-mutuel tickets.
  (d) Nothing contained in this article shall prohibit one person from qualifying for all or more than one of the aforesaid awards or for awards under section thirteen-b of this article.
  (e) The cost of publication of the notice provided for in this section shall be paid from the funds in the hands of the state treasurer collected from the pari-mutuel pools' tax provided for in section ten of this article, when not otherwise provided in the budget; but no such costs shall be paid unless an itemized account thereof, under oath, be first filed with the state auditor.

§19-23-13b. West Virginia thoroughbred development fund; distribution; restricted races; nonrestricted purse supplements; preference for West Virginia accredited thoroughbreds.

  (a) The racing commission shall deposit moneys required to be withheld by an association or licensee in subsection (b), section nine of this article in a banking institution of its choice in a special account to be known as 'West Virginia racing commission special account -- West Virginia thoroughbred development fund.' Notice of the amount, date and place of the deposit shall be given by the racing commission, in writing, to the state treasurer. The purpose of the fund is to promote better breeding and racing of thoroughbred horses in the state through awards and purses for accredited breeders/raisers, sire owners and thoroughbred race horse owners. A further objective of the fund is to aid in the rejuvenation and development of the present horse tracks now operating in West Virginia for capital improvements, operations or increased purses: Provided, That five percent of the deposits required to be withheld by an association or licensee in subsection (b), section nine of this article shall be placed in a special revenue account hereby created in the state treasury called the 'administration and promotion account'.
  (b) The racing commission is authorized to expend the moneys deposited in the administration and promotion account at times and in amounts as the commission determines to be necessary for purposes of administering and promoting the thoroughbred development program: Provided, That during any fiscal year in which the commission anticipates spending any money from the account, the commission shall submit to the executive department during the budget preparation period prior to the Legislature convening before that fiscal year for inclusion in the executive budget document and budget bill the recommended expenditures, as well as requests of appropriations for the purpose of administration and promotion of the program. The commission shall make an annual report to the Legislature on the status of the administration and promotion account, including the previous year's expenditures and projected expenditures for the next year.
  (c) The fund and the account established in subsection (a) of this section shall operate on an annual basis.
  (d) Funds in the thoroughbred development fund shall be expended for awards and purses except as otherwise provided in this section. Annually, the first three hundred thousand dollars of the fund shall be available for distribution for stakes races. One of the stakes races shall be the West Virginia futurity and the second shall be the Frank Gall memorial stakes. The remaining races may be chosen by the committee set forth in subsection (g) of this section.
  (e) Awards and purses shall be distributed as follows:
  (1) The breeders/raisers of accredited thoroughbred horses that earn a purse at any West Virginia meet shall receive a bonus award calculated at the end of the year as a percentage of the fund dedicated to the breeders/raisers, which shall be sixty percent of the fund available for distribution in any one year. The total amount available for the breeders'/raisers' awards shall be distributed according to the ratio of purses earned by an accredited race horse to the total amount earned in the races by all accredited race horses for that year as a percentage of the fund dedicated to the breeders/raisers. However, no breeder/raiser may receive from the fund dedicated to breeders'/raisers' awards an amount in excess of the earnings of the accredited horse at West Virginia meets. In addition, should a horse's breeder and raiser qualify for the same award on the same horse, they will each be awarded one half of the proceeds. The bonus referred to in this subdivision (1) may only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
  (2) The owner of a West Virginia sire of an accredited thoroughbred horse that earns a purse in any race at a West Virginia meet shall receive a bonus award calculated at the end of the year as a percentage of the fund dedicated to sire owners, which shall be fifteen percent of the fund available for distribution in any one year. The total amount available for the sire owners' awards shall be distributed according to the ratio of purses earned by the progeny of accredited West Virginia stallions in the races for a particular stallion to the total purses earned by the progeny of all accredited West Virginia stallions in the races. However, no sire owner may receive from the fund dedicated to sire owners an amount in excess of thirty-five percent of the accredited earnings for each sire. The bonus referred to in this subdivision (2) shall only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
  (3) The owner of an accredited thoroughbred horse that earns a purse in any race at a West Virginia meet shall receive a restricted purse supplement award calculated at the end of the year, which shall be twenty-five percent of the fund available for distribution in any one year, based on the ratio of the earnings in the races of a particular race horse to the total amount earned by all accredited race horses in the races during that year as a percentage of the fund dedicated to purse supplements. However, the owners may not receive from the fund dedicated to purse supplements an amount in excess of thirty-five percent of the total accredited earnings for each accredited race horse. The bonus referred to in this subdivision shall only be paid on the first one hundred thousand dollars of any purse, and not on any amounts in excess of the first one hundred thousand dollars.
  (4) In no event may purses earned at a meet held at a track which did not make a contribution to the thoroughbred development fund out of the daily pool on the day the meet was held qualify or count toward eligibility for an award under this subsection.
  (5) Any balance in the breeders/raisers, sire owners and purse supplement funds after yearly distributions shall first be used to fund the races established in subsection (g) of this section. Any amount not so used shall revert back into the general account of the thoroughbred development fund for distribution in the next year.
  Distribution shall be made on the fifteenth day of each February for the preceding year's achievements.
  (f) The remainder, if any, of the thoroughbred development fund that is not available for distribution in the program provided for in subsection (e) of this section in any one year is reserved for regular purses, marketing expenses and for capital improvements in the amounts and under the conditions provided in this subsection (f).
  (1) Fifty percent of the remainder shall be reserved for payments into the regular purse fund established in subsection (b), section nine of this article.
  (2) Up to five hundred thousand dollars per year shall be available for:
  (A) Capital improvements at the eligible licensed horse racing tracks in the state; and
  (B) Marketing and advertising programs above and beyond two hundred fifty thousand dollars for the eligible licensed horse racing tracks in the state: Provided, That moneys shall be expended for capital improvements or marketing and advertising purposes as described in this subsection only in accordance with a plan filed with and receiving the prior approval of the racing commission, and on a basis of fifty percent participation by the licensee and fifty percent participation by moneys from the fund, in the total cost of approved projects: Provided, however, That funds approved for one track may not be used at another track unless the first track ceases to operate or is viewed by the commission as unworthy of additional investment due to financial or ethical reasons.
  (g) (1) Each pari-mutuel thoroughbred horse track shall provide at least one restricted race per two racing days.: Provided, That, if there are sufficient additional funds available under the provisions of subdivision (4) of this subsection, each pari-mutuel thoroughbred horse track may provide one restricted race per race day.
  (2) The restricted races established in this subsection shall be administered by a three- member committee consisting of:
  (A) The racing secretary;
  (B) A member appointed by the authorized representative of a majority of the owners and trainers at the thoroughbred track; and
  (C) A member appointed by a majority of the thoroughbred breeders.
  (3) The purses for the restricted races established in this subsection shall be twenty percent larger than the purses for similar type races at each track.
  (4) Restricted races shall be funded by each racing association from:
  (A) Moneys placed in the general purse fund up to a maximum of three hundred fifty thousand dollars per year.
  (B) Moneys as provided in subdivision (5), subsection (e) of this section, which shall be placed in a special fund called the 'West Virginia accredited race fund.'
  (5) The racing schedules, purse amounts and types of races are subject to the approval of the West Virginia racing commission.
  (h) As used in this section, 'West Virginia bred-foal' means a horse that was born in the state of West Virginia.
  (i) To qualify for the West Virginia accredited race fund, the breeder must qualify under one of the following:
  (1) The breeder of the West Virginia bred-foal is a West Virginia resident;
  (2) The breeder of the West Virginia bred-foal is not a West Virginia resident, but keeps his or her breeding stock in West Virginia year round; or
  (3) The breeder of the West Virginia bred-foal is not a West Virginia resident and does not qualify under subdivision (2) of this subsection, but either the sire of the West Virginia bred-foal is a West Virginia stallion, or the mare is covered that year exclusively by a West Virginia stallion following the birth of that West Virginia bred-foal.
  (j) No association or licensee qualifying for the alternate tax provision of subsection (b), section ten of this article is eligible for participation in any of the provisions of this section: Provided, That the provisions of this subsection do not apply to a thoroughbred race track at which the licensee has participated in the West Virginia thoroughbred development fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two.
  (k) From the first day of July, two thousand one, West Virginia accredited thoroughbred horses have preference for entry in all accredited races at a thoroughbred race track at which the licensee has participated in the West Virginia thoroughbred development fund for a period of more than four consecutive calendar years prior to the thirty-first day of December, one thousand nine hundred ninety-two."
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2414 - "A Bill to amend and reenact sections ten, thirteen and thirteen- b, article twenty-three, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to horse and dog racing generally; increasing from ten to thirteen the number of racing performances during a calendar day by an association or licensee before the payment of both the daily license tax and the alternative tax imposed by section ten; creating bona fide resident of West Virginia for participation in the greyhound dog whelping fund; defining proof of bona fide residency; deleting provisions related to payment to lessors; deleting provisions relating to contributions to the jockey fund from the uncashed pari-mutuel ticket fund; and increasing the amount of restricted thoroughbred horse races in certain circumstances."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 590), and there were--yeas 83, nays 16, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Anderson, Armstead, Ashley, Azinger, Border, Calvert, Frich, Louisos, Schoen, Smirl, Sobonya, Sumner, Susman, Wakim, Walters and Webb.
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2414) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2477, Permitting residents of nursing homes and similar facilities to retain the homestead exemption and Class II property designation.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 4. ASSESSMENT OF REAL PROPERTY.
§11-4-3. Definitions.
  For the purpose of giving effect to the 'Tax Limitations Amendment,' this chapter shall be interpreted in accordance with the following definitions, unless the context clearly requires a different meaning:
  'Owner' means the person, as defined in section ten, article two, chapter two of this code, who is possessed of the freehold, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust securing a debt or liability is considered the owner until the mortgagee or trustee takes possession, after which the mortgagee or trustee shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title is also considered the owner.
  'Used and occupied by the owner thereof exclusively for residential purpose' means actual habitation by the owner or the owner's spouse of all or a portion of a parcel of real property as a primary place of abode to the exclusion of any commercial use: Provided, That if the parcel of real property was unoccupied at the time of assessment and either: (a) Was used and occupied by the owner thereof exclusively for residential purposes on the first day of July of the previous year assessment date; or (b) was unimproved on the first of July of the previous year but a building improvement for residential purposes was subsequently constructed thereon between that date and the time of assessment; or (c) is retained by the property owner for noncommercial purposes and was most recently used and occupied by the owner or the owner's spouse as a residence, and the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident in a nursing home, personal care home, rehabilitation center or similar facility, then the property shall be considered 'used and occupied by the owner thereof exclusively for residential purpose': Provided, however, That nothing herein contained shall permit an unoccupied or unimproved property to be considered 'used and occupied by the owner thereof exclusively for residential purposes' for more than one year unless the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility. If a license is required for an activity on the premises or if an activity is conducted thereon which involves the use of equipment of a character not commonly employed solely for domestic as distinguished from commercial purposes, the use may not be considered to be exclusively residential.
  'Family member' means a person who is related by common ancestry, adoption or marriage including, but not limited to, persons related by lineal and collateral consanguinity.
  'Farm' means a tract or contiguous tracts of land used for agriculture, horticulture or grazing and includes all real property designated as "wetlands" by the United States army corps of engineers or the United States fish and wildlife service.
  'Occupied and cultivated' means subjected as a unit to farm purposes, whether used for habitation or not, and although parts may be lying fallow, in timber or in wastelands.

ARTICLE 6B. HOMESTEAD PROPERTY TAX EXEMPTION.

§11-6B-2. Definitions.

  For purposes of this article, the term:
  (1) 'Assessed value' means the value of property as determined under article three of this chapter.
  (2) 'Claimant' means a person who is age sixty-five or older or who is certified as being permanently and totally disabled, and who owns a homestead that is used and occupied by the owner thereof exclusively for residential purposes: Provided, That: (1) If the property was most recently used and occupied by the owner or the owner's spouse thereof exclusively for residential purposes; (2) the owner, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility; and (3) the property is retained by the owner for noncommercial purposes, then the owner of that property may continue to claim a homestead property tax exemption on the property.
__(3) 'Family member' means a person who is related by common ancestry, adoption or marriage including, but not limited to, persons related by lineal and collateral consanguinity.
__~~(3)~~ (4) 'Homestead' means a single family residential house, including a mobile or manufactured or modular home, and the land surrounding such structure; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned or leased.
  ~~(4)~~ (5) 'Owner' means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be ~~deemed~~ considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be ~~deemed~~ considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be ~~deemed~~ considered the property of the party in possession.
  ~~(5)~~ (6) 'Permanently and totally disabled' means a person who is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental condition which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.
  ~~(6)~~ (7) 'Sixty-five years of age or older' includes a person who attains the age of sixty-five on or before the thirtieth day of June following the July first assessment day.
  ~~(7)~~ (8) 'Used and occupied exclusively for residential purposes' means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use: Provided, That failure to satisfy this six-month period shall not prevent allowance of a homestead exemption to a former resident in accordance with section three of this article.
  ~~(8)~~ (9) 'Tax year' means the calendar year following the July first assessment day.
  ~~(9)~~ (10) 'Resident of this state' means an individual who is domiciled in this state for more than six months of the calendar year.

§11-6B-4. Claim for exemption; renewals; waiver of exemption.

  (a) General. -- No exemption shall be allowed under this article unless a claim of exemption is filed with the assessor of the county in which the homestead is located, on or before the first day of ~~October~~ December following the July first assessment day. In the case of sickness, absence or other disability of the claimant, the claim may be filed by the claimant or his or her duly authorized agent.
  (b) Claims for disability exemption. -- Each claim for exemption based on the owner being permanently and totally disabled shall include one of the following forms of documentation in support of said claim: (1) A written certification by a doctor of medicine or doctor of osteopathy licensed to practice their particular profession in this state that the claimant is permanently and totally disabled; (2) a written certification by the social security administration that the claimant is currently receiving benefits for permanent and total disability; (3) a copy of the letter from the social security administration originally awarding benefits to the claimant for permanent and total disability and a copy of a current check for such benefits, marked void; (4) a current social security health insurance (medicare) card in the name of the claimant and a copy of a current check to the claimant, marked void, for benefits from the social security administration for permanent and total disability; (5) a written certification signed by the veterans administration certifying that a person is totally and permanently disabled; (6) any lawfully recognized workers' compensation documentation certifying that a person is totally and permanently disabled; (7) any lawfully recognized pneumoconiosis documentation certifying that a person is totally and permanently disabled; or (8) any other lawfully recognized documentation certifying that a person is totally and permanently disabled.
  (c) Renewals. --
  (1) Senior citizens. -- If the claimant is age sixty-five or older, then after the claimant has filed for the exemption once with his or her assessor, there shall be no need for that claimant to refile unless the claimant moves to a new homestead.
  (2) Disabled. -- If the claimant is permanently and totally disabled, then after the claimant has filed for the exemption once with his or her assessor, and signed a statement certifying that he or she will notify the assessor if he or she is no longer eligible for an exemption on the basis of being permanently and totally disabled and that the claimant will notify the assessor within thirty days of the discontinuance of the receipt of benefits for permanent and total disability, if the claimant originally claimed receipt of said benefits to document his or her claim for exemption, there shall be no need for that claimant to refile, unless the claimant moves to a new homestead.
  (3) Waiver of exemption. -- Any person not filing his or her claim for exemption on or before the first day of ~~October~~ December shall be determined to have waived his or her right to exemption for the next tax year.
  (4) Residential care exception. -- For purposes of this section, an otherwise qualified claimant who, as a result of illness, accident or infirmity, resides with a family member or is a resident at a nursing home, personal care home, rehabilitation center or similar facility is not considered to have moved to a new homestead.
§11-6B-5. Determination; notice of denial of claim or exemption.
  (a) The assessor shall, as soon as practicable after a claim for exemption is filed, review that claim and either approve or deny it. If the exemption is denied, the assessor shall promptly, but not later than the first day of ~~November~~ January, serve the claimant with written notice explaining why the exemption was denied and furnish a form for filing with the county commission should the claimant desire to take an appeal. The notice required or authorized by this section shall be served on the claimant or his or her authorized representative either by personal service or by certified mail.
  (b) In the event that the assessor shall have information sufficient to form a reasonable belief that a claimant, after having been originally granted an exemption, is not eligible for said exemption, he or she shall deny the exemption on the next assessment date and shall promptly, but no later than the first day of ~~November~~ January, serve the claimant with written notice explaining the reasons for the denial and furnish a form for filing with the county commission should the claimant desire to take an appeal.
§11-6B-6. Appeals procedure.

  (a) Notice of appeal; thirty days. -- Any claimant aggrieved by the denial of his or her claim for exemption or the subsequent denial of his or her exemption may appeal to the county commission within thirty days after receipt of written notice explaining why the exemption was denied.
  (b) Review; determination; appeal. -- The county commission shall complete its review and issue its determination ~~within sixty days after receipt of the notice of appeal from the claimant~~ as soon as practicable after receipt of the notice of appeal, but in no event later than the twenty-eighth day of February of the tax year for which the exemption is first applied. In conducting its review, the county commission may hold a hearing on the claim. The assessor or the claimant may apply to the circuit court of the county for review of the determination of the county commission in the same manner as is provided for appeals from the county commission in section twenty-five, article three of this chapter."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 591), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2477) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2528, Establishing a flood prevention task force by law.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 21A.  CONSERVATION DISTRICTS.

§19-21A-15. West Virginia flood protection task force; continuation.

  (a) The West Virginia flood protection task force is created. The task force is a governmental instrumentality of the state. The exercise by the task force of the powers conferred by, and the carrying out of its purpose and duties of, this section are essential governmental functions for a public purpose.
  (b) The task force shall consist of thirteen members, as follows:
  (1) The director of the state conservation agency or his or her designee from within the agency, who shall chair the task force;
  (2) The director of the state office of emergency services or his or her designee from within the agency, who shall serve as vice-chair of the task force;
  (3) The secretary of the department of environmental protection, or his or her designee from within the agency;
  (4) The commissioner of the division of highways, or his or her designee from within the agency;
  (5) The director of the division of natural resources, or his or her designee from within the agency;
  (6) The director of the division of forestry, or his or her designee from within the agency;
  (7) The director of the housing development fund, or his or her designee from within the agency;
  (8) One county commissioner who shall be appointed by the governor from a list of three names submitted by the county commissioners association of West Virginia;
  (9) One member representing municipalities who shall be appointed by the governor from a list of three names submitted by the municipal league;
  (10) One member representing forestors who shall be appointed by the governor from a list of three names submitted by the executive director of the forestry association; and
  (11) Three citizen members who shall be appointed by the governor, one of whom shall be an engineer.
  (c) No more than three of the members, appointed by the governor to the task force, may be from the same congressional district. The members first appointed shall serve staggered terms as follows: The first citizen member appointed shall be appointed for a term of one year; the second citizen member appointed shall be appointed for a term of two years; the third citizen member appointed shall be appointed for a term of three years; the first member representing forestors shall serve a term of one year; the first member representing municipal governments shall serve a term of two years; the first member representing county governments shall serve a term of three years. Thereafter the appointed members shall serve a term of three years. An appointed member may be reappointed for one additional term.
  (d) There shall also be appointed a panel of advisory members to the task force. The advisory members shall include:
  (1) Two members of the West Virginia Senate, appointed by the president of the Senate;
  (2) Two members of the West Virginia House of Delegates appointed by the speaker of the House of Delegates;
  (3) The director of the division of labor or his or her designee from within the agency;
  (4) The director of the West Virginia University cooperative extension service or his or her designee from within the agency;
  (5) The director of the GIS technical center or his or her designee from within the agency;
  (6) The director of the board of examiners of land surveyors or his or her designee from within the agency; and
  (7) The director of the geological and economic survey or his or her designee from within the agency.
  (e) No more than three members of the Legislature appointed by the governor as advisory members may be from the same political party. All advisory members are ex officio, nonvoting members of the task force.
  (f) The chair of the task force shall designate a secretary who need not be a member of the task force and who shall keep records of its proceedings.
  (g) A majority of the task force members shall constitute a quorum and the affirmative vote of at least the majority of those members present is necessary for any action taken by vote of the task force. A vacancy in the membership of the task force will not affect an action taken if there is a quorum of members present and voting on the issue.
  (h) No member of the task force shall receive any compensation for serving as a member.
  (i) The task force shall meet at least quarterly or on the call of the chair.
  (j) The duties of the task force are to:
  (1) Make recommendations to the state office of emergency services for the coordination of federal, state and local governmental response to flooding;
  (2) Review the status of flood mapping;
  (3) Examine and improve flood prevention initiatives;
  (4) Request federal funding assistance; and
  (5) Carry out other related responsibilities.
  (k) The state conservation agency shall provide office space for the task force. Each governmental agency represented on the task force shall provide staff support for the task force in the manner determined by the task force.
  (l) The task force shall keep minutes of its meetings and shall invite one or more representatives of the United States federal emergency management agency, the United States army corps of engineers and any other individual or organization necessary to effectuate the purposes of this article, to all of its meetings.
  (m) The West Virginia flood protection task force shall terminate on the first day of July, two thousand five, pursuant to the provisions of article ten, chapter four of this code."
  And,
  By amending the title of the bill to read as follows:
  H. B. 2528 - "A Bill to amend article twenty-one-a, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fifteen, relating generally to the creation of a thirteen-member flood prevention task force; designating members; appointment of certain members by the governor; advisory members; secretary; meetings; duties of task force; office space and staff support; and termination of task force."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
  By amending the title of the bill to read as follows:
  H. B. 2528 - "A Bill to amend article twenty-one-a, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fifteen, relating generally to the creation of a thirteen-member flood protection task force; designating members; providing for appointment of certain members by the governor; providing for appointment of advisory members; providing for the designation of a secretary; requiring meetings; setting forth duties of task force; providing for office space and staff support; and providing for termination of task force."
  The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 592), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2528) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2592, Authorizing the department of administration to promulgate legislative rules.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page ten, section two, following line seventeen, by adding a new subsection, designated subsection (c), to read as follows:
  "(c) The legislative rule filed in the state register on the twenty-fourth day of July, two thousand two, authorized under the authority of section two, article four-b, chapter twelve, of this code, relating to the auditor (state auditor's computer and technology donation program, 155 CSR 5), is authorized."
  On page eleven, section three, line six, following the word "authorized" by striking out the period and inserting the following: "with the amendment set forth below" followed by a colon.
  On page two, section nine, by striking out the period and inserting in lieu thereof a colon and the following: "Provided, That beginning on the first day of July, two thousand three, each participating public employer shall contribute ten and five-tenths percent (10.5%) of each compensation payment of all its employees who are members of the Public Employees Retirement System."
  On page eleven, section three, line fifteen, following the word "authorized" by striking out the period and inserting the following: "with the amendment set forth below" followed by a colon.
  On page one, section 2.1, following the words "the Board shall" by inserting a comma and the words "as part of its initial review,".
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2592 - "A Bill to amend and reenact section one, article one, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact article two of said chapter, relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the state register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain legislative rules with amendments; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule- making review committee and as amended by the Legislature; authorizing the department of administration to promulgate a legislative rule relating to the general administration of records management and preservation; authorizing the department of administration to promulgate a legislative rule relating to records retention and disposal scheduling; authorizing the department of administration to promulgate a legislative rule relating to the management of records maintained by the records center; authorizing the department of administration to promulgate a legislative rule relating to technology access for the visually impaired; authorizing the department of administration to promulgate a legislative rule relating to parking; authorizing the department of administration to promulgate a legislative rule relating to qualifications for participation; authorizing the auditor to promulgate a legislative rule relating to the standards for requisitions for payment issued by state officers on the auditor; authorizing the auditor to promulgate a legislative rule relating to the transaction fee and rate structure; authorizing the auditor to promulgate a legislative rule relating to the state auditor's computer and technology donation program; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the public employees retirement system; authorizing the consolidated public retirement board to promulgate a legislative rule relating to benefit determination and appeal; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the teachers defined benefit plan; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the West Virginia state police disability determination and appeal process; authorizing the ethics commission to promulgate a legislative rule relating to lobbying; and authorizing the division of personnel to promulgate a legislative rule relating to the division."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 593), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
  Nays: Walters.
  Absent And Not Voting: Coleman, Faircloth and Tabb.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2592) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 594), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Louisos.
  Absent And Not Voting: Coleman and Mezzatesta.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2592) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2700, Adding health maintenance organization review committee to the definition of "review organizations".
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 3C. HEALTH CARE PEER REVIEW ORGANIZATION PROTECTION.
§30-3C-1. Definitions.
  As used in this article:
  'Health care professionals' means individuals who are licensed to practice in any health care field ~~under the laws of this state~~;
  'Peer review' means the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, and claims review;
  'Professional society' includes medical, psychological, nursing, dental, optometric, pharmaceutical, chiropractic and podiatric organizations having as members at least a majority of the eligible licentiates in the area or health care facility or agency served by the particular organization; and
  'Review organization' means any committee or organization engaging in peer review, including a hospital utilization review committee, a hospital tissue committee, a medical audit committee, a health insurance review committee, a health maintenance organization review committee, hospital, medical, dental and health service corporation review committee, a hospital plan corporation review committee, a professional health service plan review committee or organization, a dental review committee, a physicians' advisory committee, a podiatry advisory committee, a nursing advisory committee, any committee or organization established pursuant to a medical assistance program, and any committee established by one or more state or local professional societies or institutes, to gather and review information relating to the care and treatment of patients for the purposes of: (i) Evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care. It shall also mean any hospital board committee or organization reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto, and any professional standards review organizations established or required under state or federal statutes or regulations."
  And,
  By amending the title of the bill to read as follows:
  H. B. 2700 - "A Bill to amend and reenact section one, article three-c, chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to peer review organization protection and adding to the definition of 'review organization' a health maintenance organization review committee and a hospital, medical, dental and health service corporation review committee."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 595), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2700) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2702, Eliminating the examination assessment fee on risk retention groups.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 32. RISK RETENTION ACT.
§33-32-5. Tax on Premiums Collected.
  (a) Each risk retention group shall pay to the commissioner, annually on the first day of March ~~of each year~~, a tax at the rate of two percent of the taxable premiums on policies or contracts of insurance covering property or risks in this state and on risk and property situated elsewhere upon which no premium tax is otherwise paid during the previous year. Each risk retention group ~~shall~~ is also be subject to the additional premium taxes levied by sections fourteen-a and fourteen-d, article three of this chapter. ~~and the examination assessment fee levied by section nine [§ 33-2-9] of article two of this chapter.~~
  (b) The taxes provided for in this section ~~shall~~ constitute all taxes collectible under the laws of this state from any risk retention group, and no other premium tax or other taxes shall be levied or collected from any risk retention group by the state or any county, city or municipality within this state, except ad valorem taxes. Each risk retention group shall be subject to the same interests, additions, fines and penalties for nonpayment as are generally applicable to insurers.
  (c) To the extent that a risk retention group ~~utilizes~~ uses insurance agents, each agent shall keep a complete and separate record of all policies procured from each risk retention group. ~~which~~ The record shall be open to examination by the commissioner, as provided in section nine, article two of this chapter. These records shall, for each policy and each kind of insurance provided ~~thereunder~~ under the policy, include the following:
  (1) The limit of liability;
  (2) The time period covered;
  (3) The effective date;
  (4) The name of the risk retention group which issued the
policy;
  (5) The gross premium charged; and
  (6) The amount of return premiums, if any."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 596), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2702) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2753, Prohibiting participation in animal fighting ventures and making violations a felony.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 8. CRIMES AGAINST CHASTITY, MORALITY AND DECENCY.
§61-8-19a. Animal fighting ventures prohibited.
  (a) It is unlawful for any person to engage in, be employed at, ~~or to purchase~~ or sell an admission to any animal fighting venture.
  (b) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars and not more than one thousand dollars, or confined in the county jail not exceeding one year, or both so fined and confined, and may be divested of ownership and control of such animals, and be liable for all costs for their care and maintenance: Provided, That if the animal is a wild animal, game animal or fur- bearing animal, as defined in section two, article one, chapter twenty of this code, or wildlife not indigenous to West Virginia, or of a canine, feline, porcine, bovine, or equine species whether wild or domesticated, the person who violates the provisions of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than one thousand dollars and not more than five thousand dollars, and imprisoned in a state correctional facility for not less than one nor more than five years, or both fined and imprisoned.
61-8-19b. Attendance at animal fighting ventures prohibited; penalty.
  (a) It is unlawful for any person to knowingly attend an animal fighting venture involving animals as provided in subsections (a) and (b), section nineteen-a, article eight of this chapter.
  (b) Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars and not more than one thousand dollars, or confined in the county or regional jail not more than one year, or both fined and imprisoned."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
  Delegate Perdue requested that the Clerk record him as voting "Nay" on the motion to concur in Senate amendment.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 597), and there were--yeas 92, nays 6, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Browning, Hall, Kominar, Walters, H. White and Yeager.
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2753) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2764, Defining the content of subpoenas that may be issued by the insurance commissioner.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-4. Authority to take depositions, subpoena witnesses, etc.
  The commissioner, or any person conducting a hearing or investigation by his authority, shall have power to take depositions, subpoena witnesses and compel their attendance, administer oaths, examine any person under oath, compel any person to subscribe to his testimony after it has been correctly reduced to writing and require the production of any books, papers, records, correspondence or other documents which he deems relevant to the inquiry.
  (a) For the purpose of any investigation or proceeding under this chapter, the commissioner or any officer designated by him or her may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of any books, papers, correspondences, memoranda, agreements or other documents or records which the commissioner considers relevant or material to the inquiry. The commissioner's authority to subpoena witnesses and documents outside the state shall exist to the maximum extent permissible under federal constitutional law.
__(b) Subpoenas may be issued to any person and may require that person, among other things, to:
__(1) Testify under oath;
__(2) Answer written interrogatories under oath;
__(3) Produce documents and tangible things; and
__(4) Permit inspection and copying of documents.
__(c) Content of subpoena. A subpoena shall:
__(1) Describe generally the nature of the investigation;
__(2) If the subpoena requires testimony under oath, specify the date, time and place for the taking of testimony;
__(3) If the subpoena requires answers to written interrogatories, contain a copy of the written interrogatories;
__(4) If the subpoena requires the production of tangible things or documents:
__(A) Describe the things and documents to be produced with reasonable specificity; and
__(B) Specify a date, time, and place at which the things and documents are to be produced;
__(5) Notify the person to whom the subpoena is directed of the obligation to supplement responses;
__(6) Advise the person to whom the subpoena is directed that the person may be represented by counsel; and
__(7) Identify a member of the office of the insurance commissioner who may be contacted in reference to the subpoena.
__(d) For subpoenas to corporations and other entities, the following apply:
__(1) A subpoena directed to a corporation, partnership or other business entity that requires testimony under oath shall describe with reasonable particularity the subject matter of the testimony;
__(2) An entity that receives a subpoena to answer written interrogatories or to testify under oath shall designate one or more of its officers, agents, employees or other authorized persons familiar with the subject matter specified in the subpoena to respond to the subpoena on its behalf;
__(3) The persons designated by an entity to respond to a subpoena on its behalf shall answer the interrogatories or testify as to all matters known or reasonably available to the entity; and
__(4) A subpoena directed to an entity that requires testimony under oath or answers to written interrogatories shall advise the entity of its obligations under this section.
__(e) Effect of other proceedings. The institution or pendency of administrative or judicial proceedings against a person by the commissioner does not relieve the person of his or her obligation to respond to a subpoena issued under this section.
__(f) Subpoenas for interrogatories and answers and requests for production of documents or tangible things and answers propounded and obtained under this section pursuant to an investigation are exempted from disclosure under the provisions of article one, chapter twenty-nine-b of this code, and are not open to public inspection. The commissioner may not disclose facts or information obtained from the investigation except as the official duty of the commissioner requires.
__(g) Nothing in this section prohibits the commissioner from providing information or receiving information from any local, state, federal or international law-enforcement authorities, including any prosecuting authority; from complying with subpoenas or other lawful process in criminal proceedings or other action by the state; or from taking action as may otherwise be provided in this article."
  And,
  By amending the title of the bill to read as follows:
  H. B. 2764 - "A Bill to amend and reenact section four, article two, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the subpoena power of the insurance commissioner; setting forth requirements for contents of subpoena; providing for subpoenas to be issued to persons and to corporations; providing that pendency of another action does not relieve a person's duty to respond to subpoena of the commissioner; and providing that evidence produced in response to subpoena and interrogatories are exempt from the disclosure requirements of the freedom of information act."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 598), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2764) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2799, Relating to the West Virginia state police and the re-employment of recently retired troopers.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page three, section fifty-one, line twenty, following the word "superintendent" by inserting the words "and subject to executive order of the governor specifying circumstances warranting such re-employment and establishing beginning and end dates for such re-employment,".
  And,
  On page seven, section fifty-one, following line one hundred one, by adding a new subsection, designated subsection (m), to read as follows:
  "(m) The provisions of this section shall terminate on the first day of April, two thousand four."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 599), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2799) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 600), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2799) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
  H. B. 2975, Providing a window for persons who were members of PERS and who left state employment withdrawing their PERS moneys to buy back their time with interest.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, section eighteen, line eighteen, by striking out all of subsection (b) and relettering the remaining subsections.
  On page three, section eighteen, lines thirty through thirty-two, by striking out the words "on or before the first day of July, one thousand nine hundred ninety-seven, and continuing thereafter";
  On page four, section eighteen, line fifty-seven, by striking out the word "ten" and inserting in lieu thereof the word "four".
  And,
  On page four, section eighteen, line fifty-nine, by striking out the word "such" and inserting in lieu thereof the word "the".
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 601), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2975) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 602), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2975) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
  H. B. 3011, Relating to authority of the state fire commission to promulgate legislative and emergency rules.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. FIRE PREVENTION AND CONTROL ACT.
§29-3-9. Powers, duties and authority of state fire commission and state fire marshal.
  (a) The state fire commission may employ personnel, fix their compensation and, within funds available to do so, incur expenses as necessary in the performance of the duties of its office.
  (b) The state fire commission is responsible for fire programs within this state, including the state fire marshal's office, training, uniform standards and certification, finance and planning and fire prevention.
  (c) All state and area training and education in fire service shall be coordinated by the state fire commission. The state fire marshal shall ensure that these programs are operated throughout the state at a level consistent with needs identified by the commissioner.
  (d) The state fire commission shall develop minimum training levels for firefighters, minimum levels of equipment needed to protect life and property within fire service areas, minimum performance standards the departments must meet in response times, communications, minimum levels of water flow and pressure and other performance measures as considered necessary to meet the overall goals of improved fire prevention and control. The state fire commission may make recommendations to the state insurance commissioner regarding town classifications for fire insurance rates.
  (e) The formation of any new fire department, including volunteer fire departments, requires the concurrence of the state fire commission. The state fire commission shall develop a method of certification which can be applied to all fire departments and volunteer fire departments.
  (f) The state fire commission shall develop a plan for fire prevention and control which shall include, but not be limited to, the following areas: Manpower needs; location of training centers; location of fire prevention and control units; communications; fire-fighting facilities; water sources; vehicular needs; public education and information; public participation; standardization in record keeping; evaluation of personnel; reporting of fire hazards; programs on mutual aid; location of public safety agencies; outline of fire prevention programs; and accessibility of fire prevention information.
  (g) The state fire commission shall establish fire protection areas and at such times as funds are available shall establish field offices for inspection, planning and certification.
  (h) The state fire marshal may accept, on behalf of the state fire commission, gifts, grants, court ordered civil forfeiture proceedings and bequests of funds or property from individuals, foundations, corporations, the federal government, governmental agencies and other organizations or institutions. The state fire marshal, acting on behalf of the state fire commission, may enter into, sign and execute any agreements and do and perform any acts that may be necessary, useful, desirable or convenient to effectuate the purposes of this article. Moneys from gifts, grants, civil forfeiture proceedings and bequests received by the state fire marshal shall be deposited into the special account set forth in subsection (c), section twelve-b of this article, and the state fire marshal, with the approval of the state fire commission, has the authority to make expenditures of, or use of any tangible property, in order to effectuate the purposes of this article.
  (h) The state fire commission shall establish standards and procedures by policy to implement the provisions of this section with regard to the following:
  (1) fire prevention and control;
  (2) uniform standards of performance, equipment and training;
  (3) certification;
  (4) training and education in fire service; and
  (5) the ~~organization~~ creation, operation and responsibilities of fire departments throughout the state."
  And,
  By amending the title of the bill to read as follows:
  H. B. 3011 - "A Bill to amend and reenact section nine, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authorizing the state fire commission to establish standards and procedures to implement the provisions of the section."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 603), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3011) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 604), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3011) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 3027, Authorizing the tax commissioner to waive tax, interest and penalties in specified circumstances which are otherwise imposed on uncompensated members of the governing board or board of directors of certain tax exempt organizations.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page three, section five-v, line twenty-two, by striking out the word "or".
  On page three, section five-v, line twenty-four, by striking out the word "or".
  And,
  On page four, section five-v, line forty-four, following the word "owed" by striking out the word "or".
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 605), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3027) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 3203, Relating to amusement ride safety.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That sections two, twelve-a, fourteen and seventeen, article ten, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto a new section, designated section nineteen, all to read as follows:

ARTICLE 10. AMUSEMENT RIDES AND AMUSEMENT ATTRACTIONS SAFETY ACT.

§21-10-2. Definitions.
  As used in this article:
  (a) 'Amusement ride' means a mechanical device which carries or conveys passengers along, around or over a fixed or restricted route or course for the purpose of giving its passengers amusement, pleasure, thrills or excitement. The term includes carnival rides and fair rides of a temporary or portable nature which are assembled and reassembled or rides which are relocated from place to place. 'Amusement ride' may not be construed to mean any mechanical device which is coin operated and does not include the operation of a ski lift, the operation of tramways at state parks, the operation of vehicles of husbandry incidental to any agricultural operations or the operation of amusement devices of a permanent nature which are subject to building regulations issued by cities or counties and existing applicable safety orders;
  (b) 'Amusement attraction' means any building or structure around, over or through which people may move or walk without the aid of any moving device integral to the building or structure that provides amusement, pleasure, thrills or excitement, including those of a temporary or portable nature which are assembled and reassembled or which are relocated from place to place. The term does not include any enterprise principally devoted to the exhibition of products of agriculture, industry, education, science, religion or the arts and shall not be construed to include any concession stand or booth for the selling of food or drink or souvenirs;
  (c) 'Kiddie ride' means an amusement ride or amusement attraction that is expressly designed for or offered to: (1) Children age twelve or less; (2) persons who are forty-two inches in height or less; or (3) persons who are ninety pounds in weight or less;
__~~(c)~~(d) 'Intoxicated' means influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant or any combination of alcohol, controlled substances and intoxicants;
  ~~(d)~~ (e) 'Mobile amusement ride or mobile amusement attraction' means an amusement ride or amusement attraction which is erected in a single physical location for a period of less than twelve consecutive months;
  ~~(e)~~(f) 'Operator' means the person having direct control of the starting, stopping and speed of an amusement ride or attraction;
  ~~(f)~~(g) 'Owner' means any person, corporation, partnership, or association who owns an amusement ride or attraction or, in the event that the amusement ride or attraction is leased, the lessee;
  ~~(g)~~(h) 'Stationary amusement ride or stationary amusement attraction' means an amusement ride or amusement attraction that is erected in a single physical location for a period of more than twelve consecutive months.
§21-10-12a. Minimum age for operating amusement ride.
  No individual under the age of ~~eighteen~~ sixteen may be the operator of an a kiddie ride or if under the age of eighteen be an operator of any other amusement ride or attraction: Provided, That the individual is not otherwise prohibited from being an operator pursuant to other state or federal law.
§21-10-14. Criminal penalty for violation.
  Any operator or owner who knowingly permits the operation of an amusement ride or amusement attraction in violation of the provisions of sections six, seven, eight, nine, eleven, twelve or twelve-a of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty dollars nor more than one thousand dollars, confined in the county or regional jail not more than twelve months, or both fined and confined. Each day that a violation continues shall be considered a separate violation.
§21-10-17. Civil penalties for violations.
  (a) If an individual is convicted of, or enters a guilty plea or a plea of nolo contendere to, a violation of subsection (a), section fifteen of this article, and the individual was not the owner of the ride being operated or assembled, the commissioner may impose a civil penalty not to exceed five thousand dollars on the owner of the ride being operated or assembled: Provided, That the owner knew or should have known that the individual was acting in violation of subsection (a), section fifteen of this article.
  (b) All civil penalties collected by the commissioner shall be deposited into the amusement rides and amusement attractions safety fund created in section four of this article.
§21-10-19. Patron responsibility.
  The owner or operator of an amusement ride or attraction may refuse any member of the public admission to a ride if his or her bearing or conduct could endanger himself or herself or others. These reasons include, but are not limited to: (1) Intoxication; (2) refusal to obey posted rules; (3) unacceptable or unsafe behavior as determined by the operator or the ride; and (4) violation of any age, height or weight restrictions as posted."
  And,
  By amending the title of the bill to read as follows:
  H. B. 3203 - "A Bill to amend and reenact sections two, twelve-a, fourteen and seventeen, article ten, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section nineteen, all relating to amusement ride safety; defining terms; allowing certain children to operate kiddie rides; limiting civil penalties; allowing owners and operators to refuse admission to certain patrons; and providing criminal penalties."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 606), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3203) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment as to
  S. B. 76, Increasing amount from consolidated fund as loan to economic development authority.
  On motion of Delegate Staton, the House of Delegates insisted on its amendments to the bill.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates with amendment, and the passage, as amended, to take effect from passage, of
  Com. Sub. for S. B. 180, Providing for school construction on cash basis.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments to the House amendments were reported by the Clerk:
  On page seventeen of the House amendment, section fifteen, subsection (d), by striking out the word "twenty-five" and inserting in lieu thereof the word "five".
  On page seventeen, section fifteen, subsection (d), by striking out the word "shall" and inserting in lieu thereof the word "may".
  On page twenty-one, section fifteen, subsection (g), following the word "distribution" and the period, by inserting the following: "Funds may not be distributed to any county board that does not have a comprehensive educational facility plan approved by the state board and the school building authority or to any county board that is not prepared to commence expenditure of the funds during the fiscal year in which the moneys are distributed."
  On page twenty-five, section fifteen, subsection (n), subdivision (2), by striking out the word "giver" and inserting in lieu thereof the word "given".
  On page twenty-five, section fifteen, subsection (n), subdivision (3), by striking out the words "reserve designation date" and inserting in lieu thereof the words "date the funding is set aside by the authority".
  On page twenty-seven, section sixteen, subsection (b), by striking out the following: "Funds may not be distributed to any county board that does not have a comprehensive educational facility plan approved by the state board and the school building authority or to any county board that is not prepared to commence expenditure of the funds during the fiscal year in which the moneys are distributed."
  On page thirty-six, section nineteen, by striking out all of subsection (f) and inserting in lieu thereof a new subsection (f), to read as follows:
  "(f) Notwithstanding any other provisions of this section to the contrary, the county board in which there is an existing comprehensive vocational center, may eliminate any vocational offering from a new comprehensive high school if the county board:
  (1) Completes a comprehensive vocational curriculum study, as required by the authority, including an evaluation of both the programmatic and physical facilities of the existing center and coordinates the county's vocational curriculum; and
  (2) Submits the plan to the authority for review and obtains the authority's approval."
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for S. B. 180 - "A Bill to amend and reenact sections three, six, fifteen, sixteen and nineteen, article nine-d, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section six, article ten-h of said chapter, all relating to public education; authorizing school building authority to require flood insurance for certain facilities; authorizing authority to accept gift, grant, contribution, bequest or endowment for authority or projects, including equipment; authorizing authority to encourage work-based learning opportunities for students on funded projects and outlining conditions; authorizing use of certain authority funds to finance construction and improvements on a cash basis when certain conditions are met; allowing authority to reserve certain funds for priority use for certain multi-use vocational- technical educational facilities; authorizing use of reserved funds for equipment and updates; specifying bodies that may propose projects; authorizing reserve of certain project funds for certain period to complete budget; requiring approved comprehensive educational facility plan as prior condition for distribution of funds; prohibiting distribution of funds to county not prepared to commence expenditure during fiscal year; requiring up-to-date enrollment projections in facility plans and updates; authorizing inclusion of facilities for community and technical college education in plans to construct comprehensive vocational facilities at existing high schools; providing that counties served by a multi-county vocational technical facility are not required to include the construction of a comprehensive vocational facility in the plan for construction of a new high school; requiring board to include multi-county vocational technical facility director and board in planning programs; prohibiting programs at the vocational facility from replacing the programs at the multi-county vocational technical facility without the consent of the center board; authorizes a county served by a comprehensive vocational center to eliminate any vocational offering from a new comprehensive high school under certain circumstances; and including introductory vocational- technical courses in middle school grades as part of effective schools for vocational-technical education."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments to the House amendments.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 607), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 180) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 608), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 180) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates with amendment, and the passage, as amended, to take effect from passage, of
  S. B. 375, Allowing transfer of contractor's license to new business entity in certain cases.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments to the House amendments were reported by the Clerk:   On page one of the House amendment, by striking out everything following the article heading and inserting in lieu thereof the following:
"§21-11-7. Application for and issuance of license.
  (a) A person desiring to be licensed as a contractor under this article shall submit to the board a written application requesting licensure, providing the applicant's social security number and such other information as the board may require, on forms supplied by the board. The applicant shall pay a license fee not to exceed one hundred fifty dollars: Provided, That electrical contractors already licensed under section four, article three-b, chapter twenty-nine of this code shall pay no more than twenty dollars.
  (b) A person holding a business registration certificate to conduct business in this state as a contractor on the thirtieth day of September, one thousand nine hundred ninety-one, may register with the board, certify by affidavit the requirements of subsection (c), section fifteen of this article and pay such license fee not to exceed one hundred fifty dollars and shall be issued a contractor's license without further examination: Provided, That no license may be issued without examination pursuant to this subsection after the first day of April, two thousand two: Provided, however, That any person issued a contractor's license by the board pursuant to this subsection may apply to the board for transfer of the license to a new business entity in which the license holder is the principal owner, partner or corporate officer: Provided further, That a license holder may hold a license on behalf of only one business entity during a given time period. The board may transfer the license issued pursuant to this subsection to the new business entity without requiring examination of the license holder.
§21-11-9. Unlawful use, assignment, transfer of license; revocation.
  No license may be used for any purpose by any person other than the person to whom the license is issued. No license may be assigned, transferred or otherwise disposed of so as to permit the unauthorized use thereof. No license issued pursuant to the provisions of subsection b, section seven of this article may be assigned, transferred or otherwise disposed of except as provided in said subsection. Any person who violates this section is subject to the penalties imposed in section thirteen of this article."
  On page one, by amending the enacting section to read as follows:
  "That sections seven and nine, article eleven, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows" followed by a colon.
  And,
  By amending the title of the bill to read as follows:
  S. B. 375 - "A Bill to amend and reenact sections seven and nine, article eleven, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to contractor licensing generally; and allowing the transfer of a license to a new business entity in which the license holder is the principal owner, partner or officer."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments to the House amendments.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 609), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman, Mezzatesta and Walters.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 375) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 610), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 375) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates with amendment, and the passage, as amended, of
  Com. Sub. for S. B. 496, Creating Motor Fuels Excise Tax Act.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page one hundred forty-two, section forty-seven, by striking out all of subsection (b).
  And by relettering the remaining subsection.
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment to the House amendment.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 611), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman, Mezzatesta and Perdue.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 496) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2092, Creating a sentencing commission and providing for the appointment, terms and qualifications of members.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That article nine, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section four, to read as follows:
ARTICLE 9. GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION.

§15-9-4. Criminal sentencing research.
   The governor's committee on crime, delinquency and correction shall conduct comprehensive research on the state's criminal sanctioning process for adult offenders. The purpose of the research is to promote a fuller understanding of this state's criminal justice system, and shall include the review of issues of sentence length imposed, actual sentence length served, parole eligibility, parole revocation, determinate or indeterminate sentences, availability of alternatives to incarceration for certain offenses, and the respective roles that each of these and other criminal sanction issues may play in the increased demand for prison bed space. The committee shall report to the governor and the Legislature on or before the first day of January, two thousand four, and at its discretion thereafter, the findings of its research."
  And
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2092 - "A Bill to amend article nine, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section four, relating to establishing within the governor's committee on crime, delinquency and correction a research component relating to criminal sentencing; and requiring reports."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
  On page two of the Senate amendment, section four, line two, following the word "research" by inserting the words "and make any recommendations for modifications of criminal sentencing laws or procedures provided that no such recommendations or modifications shall become effective without further action of the Legislature".
  The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 612), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman, Fleischauer and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2092) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, without amendment, bills of the House of Delegates as follows:
  H. B. 2285, Requiring hunting and fishing licensees to carry proof of identity and other applicable documents,
  Com. Sub. for H. B. 2480, Increasing the amount of penalties the commissioner of banking may obtain and allowing the commissioner to expend funds to promote consumer awareness of issues related to residential mortgage lending,
  H. B. 2486, Continuing the public employees insurance agency,
  H. B. 2554, Continuing the marketing and development division of the department of agriculture,
  H. B. 2555, Continuing the West Virginia's membership in the southern regional education compact,
  H. B. 2750, Continuing the office of health facility licensure and certification,
  H. B. 2751, Continuing the department of health and human resources,
  H. B. 2752, Continuing the bureau for senior services,
  H. B. 2779, Continuing the personal assistance services program,
  H. B. 2802, Providing for a legal description in deeds creating an easement right-of-way,
  Com. Sub. for H. B. 2814, Increasing the misdemeanor penalties for failure to yield the right-of-way,
  H. B. 2829, Continuing the division of culture and history,
  H. B. 2830, Continuing the division of natural resources,
  H. B. 2831, Continuing the records management and preservation board,
  Com. Sub. for S. B. 2835, Creating a special revenue fund for receipt of gifts, donations, etc. to support the operation of veterans facilities created by statute,
  H. B. 2840, Increasing the number of members on the Greater Huntington Park and making other changes in the act,
  H. B. 2864, Continuing the office of explosives and blasting,
  H. B. 2879, Continuing the West Virginia commission on holocaust education,
  Com. Sub for H. B. 2881, Striking the provision requiring that post mining water discharges have to be better to or equal to pre-mining water discharge,
  H. B. 2882, Limiting requirements for stays for appeals under the surface coal mining and reclamation act for unjust hardship,
  H. B. 2888, Continuing the board of osteopathy,
  H. B. 2889, Continuing the board of examiners of psychologists,
  H. B. 2916, Continuing the state geological and economic survey,
  Com. Sub. for H. B. 3056, Providing for the regulation of intrastate driving hours of for-hire carriers,
  H. B. 3062, Authorizing stockholders of closely held corporations to file suit for partition of real estate owned by the corporation when the real estate is the only substantial asset of the corporation,
  Com. Sub. for H. B. 3070, Providing that a mass convention of a political party, to elect delegates to the state convention, be held in the county instead of the various magisterial districts,
  H. B. 3093, Requiring county commissions to follow geographic physical features recognized by the United States Census Bureau when determining precinct boundaries,
  And,
  Com. Sub. for H. B. 3155, Maintaining the security and confidentiality of business processes.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2705, Relating to the supervision of adult offenders and authorizing a compact for the supervision of adult offenders.
Special Calendar
Second Reading
  Com. Sub. for S. B. 386, Increasing parole supervision fee; on second reading, coming up in regular order, was read a second time and ordered to third reading.
  Com. Sub. for S. B. 395, Granting temporary grandparent visitation during divorce action; technical corrections; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page two, section five hundred one, beginning on line one, by striking out all of section five hundred one, and inserting in lieu thereof the following:
  "At the time of the filing of the complaint or at any time after the commencement of an action for divorce under the provisions of this article and upon motion for temporary relief, notice of hearing and hearing, the court may (1) order all or any portion of the following temporary relief described in this part to govern the marital rights and obligations of the parties during the pendency of the action, and (2) may, upon proper motion or petition, order temporary grandparent visitation for the period during which the action is pending and under the same terms and conditions as provided for in article ten of this chapter."
  On motion of Delegate Amores, the amendment was amended on page ten, following section 1101, by inserting the following:
"ARTICLE 13. GUIDELINES FOR CHILD SUPPORT AWARDS.
§48-13-501. Extended shared parenting adjustment.
  Child support for cases with extended shared parenting is calculated using Worksheet B. The following method is used only for extended shared parenting: That is, in cases where each parent has the child for more than one hundred twenty-seven days per year (thirty-five percent).: Provided, That visitation ordered for grandparents or other third parties shall have no effect on the calculation of child support.
  (1) The basic child support obligation is multiplied by 1.5 to arrive at a shared parenting basic child support obligation. The shared parenting basic child support obligation is apportioned to each parent according to his or her income. In turn, a child support obligation is computed for each parent by multiplying that parent's portion of the shared parenting child support obligation by the percentage of time the child spends with the other parent. The respective basic child support obligations are then offset, with the parent owing more basic child support paying the difference between the two amounts. The transfer for the basic obligation for the parent owing less basic child support shall be set at zero dollars.
  (2) Adjustments for each parent's additional direct expenses on the child are made by apportioning the sum of the parent's direct expenditures on the child's share of any unreimbursed
child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or ordered by the court less any extraordinary credits agreed to by the parents or ordered by the court to each parent according to their income share. In turn each parent's net share of additional direct expenses is determined by subtracting the parent's actual direct expenses on the child's share of any unreimbursed child health care expenses, work-related child care expenses and any other extraordinary expenses agreed to by the parents or by the court less any extraordinary credits agreed to by the parents or ordered by the court from their share. The parent with a positive net share of additional direct expenses owes the other parent the amount of his or her net share of additional direct expenses. The parent with zero or a negative net share of additional direct expenses owes zero dollars for additional direct expenses.
  (3) The final amount of the child support order is determined by summing what each parent owes for the basic support obligation and additional direct expenses as defined in subdivisions (1) and (2) of this section. The respective sums are then offset, with the parent owing more paying the other parent the difference between the two amounts."
  The question then being on the adoption of the amendment, as amended, the same was put and prevailed.
  The bill was then ordered to third reading.
  S. B. 449, Authorizing transfer of surplus net profits between lottery fund and excess lottery fund; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill as follows on page two, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 22. STATE LOTTERY ACT.
§29-22-18c. Transfer of surplus net profits.
  (a) In the fiscal year two thousand three and to the extent that an unappropriated surplus is realized in the state lottery fund created by section eighteen of this article, the secretary of the department in which the state lottery commission is located shall authorize the transfer of an amount of the surplus net profit from the state lottery fund to the state excess lottery revenue fund created in section eighteen-a of this article that will offset a real or anticipated deficit in the state excess lottery fund for that fiscal year.
  (b) In the fiscal year two thousand three and when an unappropriated surplus is realized in the state excess lottery revenue fund created by section eighteen-a of this article, the secretary of the department in which the state lottery commission is located shall authorize the transfer of an amount of the surplus net profit from the state excess lottery revenue fund to the state lottery fund created in section eighteen of this article that will offset a real or anticipated deficit in the state lottery fund for that fiscal year before transferring any money from the state excess lottery revenue fund to the separate account in the state lottery fund pursuant to subsection (f), section eighteen-a of this article.
  (c) No transfer authorized by this section may exceed the real or anticipated deficit it is intended to offset.
  (d) Prior to any transfer authorized by the provisions of this section, the secretary of the department in which the state lottery commission is located shall notify the joint committee on government and finance of the real or anticipated deficit and the amount of the transfer.
  (e) Construction. -- In the event of any conflict between language in this section and language in any other section of this code, the language of this section is controlling."
  The bill was then ordered to third reading.
  S. B. 503, Providing penalty for unauthorized access to government computers or computer networks; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof, the following:
  "That article three-c, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section four-a; and to amend and reenact sections seven and fourteen-a of said article, all to read as follows:
ARTICLE 3C. WEST VIRGINIA COMPUTER CRIME AND ABUSE ACT.
§61-3C-4a. Unauthorized access to government computer.
  Any person who, knowingly, willfully and without authorization, directly or indirectly, accesses or causes to be accessed, any computer or computer network intended for the exclusive use of any state, county or municipal government agency is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars, confined in the county or regional jail for not more than one year, or both.
§61-3C-7. Alteration, destruction, etc., of computer equipment.
  (a) Misdemeanor offenses. -- Any person who knowingly, willfully and without authorization, directly or indirectly, tampers with, deletes, alters, damages or destroys or attempts to tamper with, delete, alter, damage or destroy any computer, computer network, computer software, computer resources, computer program or computer data or who knowingly introduces, directly or indirectly, a computer contaminant into any computer, computer program or computer network which results in a loss of value of property or computer services up to one thousand dollars, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail not more than six months, or both.
  (b) Felony offenses. -- Any person who knowingly, willfully and without authorization, directly or indirectly, damages or destroys or attempts to damage or destroy any computer, computer network, computer software, computer resources, computer program or computer data by knowingly introducing, directly or indirectly, a computer contaminant into any computer, computer program or computer network which results in a loss of value of property or computer services ~~more than~~ of one thousand dollars or more is guilty of a felony and, upon conviction thereof, shall be fined not less than two hundred dollars and not more than ten thousand dollars or confined in a state correctional facility not more than ten years, or both, or, in the discretion of the court, be fined not less than two hundred nor more than one thousand dollars and confined in the county or regional jail not more than one year.

§61-3C-14a. Obscene, anonymous, harassing and threatening communications by computer; penalty.

  (a) It is unlawful for any person, with the intent to harass or abuse another person, to use a computer to:
  (1) Make contact with another without disclosing his or her identity; ~~with the intent to harass or abuse~~
  (2) Make contact with a person after being requested by the person to desist from contacting them;
  (3) Threaten to commit a crime; ~~against any person or property~~ or
  (4) Cause obscene material to be delivered or transmitted to a specific person after being requested to desist from sending such material.
  For purposes of this section, 'obscene material' means material that:
  (A) An average person, applying contemporary adult community standards, would find, taken as a whole, appeals to the prurient interest, is intended to appeal to the prurient interest or is pandered to a prurient interest;
  (B) An average person, applying contemporary adult community standards, would find, depicts or describes, in a patently offensive way, sexually explicit conduct consisting of an ultimate sexual act, normal or perverted, actual or simulated, an excretory function, masturbation, lewd exhibition of the genitals, or sadomasochistic sexual abuse; and
  (C) A reasonable person would find, taken as a whole, lacks literary, artistic, political or scientific value.
  (b) It is unlawful for any person to knowingly permit a computer under his or her control to be used for any purpose prohibited by this section.
  (c) Any offense committed under this section may be determined to have occurred at the place at which the contact originated or the place at which the contact was received or intended to be received.
  (d) Any person who violates a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or confined in a county or regional jail not more than six months, or both. For a second or subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or confined in a county or regional jail for not more than one year, or both."
  The bill was then ordered to third.
  S. B. 527, Relating to property owner's liability for costs associated with waste tires; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page five, section seven, line seventy-seven, following the word "pile", by changing the colon to a period.
  And,
  On page five, section seven, line seventy-eight, by striking out the words "Provided, That any", and inserting in lieu thereof a new subsection designation "(j) and the word "Any".
  The bill was then ordered to third reading.
  S. B. 636, Exempting competitive bidding requirement for commodities and services by nonprofit workshops; on second reading, coming up in regular order, was read a second time and ordered to third reading.
  S. B. 647, Establishing and maintaining self-insurance account by investment management board; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
  "That section twelve-a, article one, chapter twelve of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that sections ten, fifteen, nineteen and twenty-one, article six of said chapter be repealed; that sections two, seven, twelve and thirteen, article one of said chapter be amended and reenacted; that sections one, two and three, article two of said chapter be amended and reenacted; that sections one and one-a, article three of said chapter be amended and reenacted; that sections three, four and six, article three-a of said chapter be amended and reenacted; that sections one and five, article five of said chapter be amended and reenacted; that sections one-a, two, four, five, eight, nine-e, twelve, thirteen and sixteen, article six of said chapter be amended and reenacted; that said chapter be further amended by adding thereto a new article, designated article six-c; and that section twenty, article fifteen, chapter thirty-one of said code be amended and reenacted, all to read as follows:
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1. STATE DEPOSITORIES.

§12-1-2. Depositories for demand deposits; categories of demand deposits; competitive bidding for disbursement accounts; maintenance of deposits by state treasurer.

  The state treasurer shall designate the state and national banks and the state and federal savings and loan associations in this state ~~which shall serve~~ meeting the requirements of this chapter as depositories for all state funds placed in demand deposits. ~~Any such state or national bank shall, upon request to the treasurer, be designated as a state depository for such deposits, if such bank meets the requirements set forth in this chapter.~~
  Demand deposit accounts shall consist of receipt and disbursement accounts. Receipt accounts ~~shall be those~~ are accounts in which are deposited moneys belonging to or due the state of West Virginia or any official, department, board, commission or agency thereof.
  Disbursement accounts ~~shall be those~~ are accounts from which are paid moneys due from the state of West Virginia or any official, department, board, commission, political subdivision or agency thereof to any political subdivision, person, firm or corporation, except moneys paid from investment accounts.
  Investment accounts ~~shall be those~~ are accounts established by the West Virginia investment management board or the state treasurer for the buying and selling of securities for investment ~~for the state of West Virginia~~ purposes.
  The state treasurer shall promulgate rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, concerning depositories for receipt accounts prescribing the selection criteria, procedures, compensation and such other contractual terms as it considers to be in the best interests of the state giving due consideration to: (1) The activity of the various accounts maintained therein; (2) the reasonable value of the banking services rendered or to be rendered the state by such depositories; and (3) the value and importance of such deposits to the economy of the communities and the various areas of the state affected thereby.
  The state treasurer shall select depositories for disbursement accounts through competitive bidding by eligible banks in this state. If none of the eligible banks in this state are able to provide any of the needed services, then the treasurer may include eligible banks outside this state in the competitive bidding process. The treasurer shall promulgate rules in accordance with the provisions of article three, chapter twenty-nine-a of this code, prescribing the procedures and criteria for the bidding and selection. The treasurer shall, in the invitations for bids, specify the approximate amounts of deposits, the duration of contracts to be awarded and such other contractual terms as ~~it considers to be in the best interests of the state~~ the treasurer determines appropriate, consistent with obtaining the most efficient service at the lowest cost.
  The amount of money needed for current operation purposes of the state government, as determined by the state treasurer, shall be maintained at all times in the state treasury, in cash, in short term investments not to exceed five days, or in disbursement accounts with banks designated as depositories in accordance with the provisions of this section. No state officer or employee shall make or cause to be made any deposits of state funds in banks not so designated. Only banks and state and federal savings and loan associations designated by the treasurer as depositories may accept deposits of state funds and only the Legislature and the state treasurer may determine whether funds are state funds: Provided, That this provision shall not apply to the proceeds from the sale of general obligation bonds or bonds issued by the school building authority, the parkways, economic development and tourism authority, the housing development fund, the economic development authority, the infrastructure and jobs development council, the water development authority or the hospital finance authority. Notwithstanding any provision of this code to the contrary, approval of the treasurer is required before any spending unit may open an account in or process a transaction through a financial institution, except for trust and investment accounts and activities related to an issuance of bonds.
__As used in this chapter, 'spending unit' means a department, agency or institution of state government for which an appropriation is requested, or to which an appropriation is made by the Legislature.
§12-1-7. Rules; banking contracts and agreements; depositors; agreements.
  In addition to rules specially authorized in this article, the West Virginia investment management board and the state treasurer are generally authorized to promulgate any rules necessary to protect the interests of the state, its depositories and taxpayers. All rules promulgated ~~shall be~~ are subject to the provisions of article three, chapter twenty-nine-a of this code. Any rules previously established by the board of public works, the board of investments, the investment management board or the state treasurer pursuant to this article shall remain in effect until amended, superseded or rescinded.
  Only the treasurer may enter into contracts or agreements with financial institutions for banking goods or services required by spending units, as defined in section one, article one, chapter five-a of this code: Provided, That this provision does not apply to trust and investment accounts and activities for general obligation bonds and bond issues of the school building authority, the parkways, economic development and tourism authority, the housing development fund, the economic development authority, the infrastructure and jobs development council, the water development authority or the hospital finance authority. A state spending unit requiring banking goods or services shall submit a request for the goods or services to the treasurer. If the treasurer enters into a contract or agreement for the required goods or services, spending units using the contract or agreement shall pay either the vendor or pay the treasurer for the goods or services used.
  The treasurer is also authorized to enter into any depositors' agreements for the purpose of reorganizing or rehabilitating any depository in which state funds are deposited, and for the purpose of transferring the assets, in whole or in part, of any depository to any other lawful depository when, in the judgment of the treasurer, the interests of the state ~~will be~~ are promoted thereby, and upon condition that no right of the state to preferred payment be is waived.
§12-1-12. Investing funds in treasury; depositories outside the state.
  When the funds in the treasury exceed the amount needed for current operational purposes, as determined by the treasurer, the treasurer shall make all of such excess available for investment by the investment management ~~board which shall invest the excess for the benefit of the general revenue fund:~~ ~~Provided~~, That the state treasurer, after reviewing the cash flow needs of the state, may withhold and invest amounts not to exceed one hundred twenty-five million dollars of the operating funds needed to meet current operational purposes. Investments made by the state treasurer under this section shall be made in short term investments not to exceed five days. Operating funds means the consolidated fund established in section eight, article six of this chapter, including all cash and investments of the fund.
__The state treasurer may invest funds in the consolidated fund through his or her office or with the West Virginia investment management board. Spending units with authority to retain interest on a fund may submit requests to the treasurer to transfer moneys to a specific investment pool of the state treasurer's office or the investment management board and retain any interest or other earnings on the money invested. The general revenue fund shall receive all interest or other earnings on money invested that are not designated for a specific fund.
  Whenever the funds in the treasury exceed the amount for which depositories within the state have qualified, or the depositories within the state which have qualified are unwilling to receive larger deposits, the treasurer may designate depositories outside the state, disbursement accounts being bid for in the same manner as required by depositories within the state, and when ~~such~~ depositories outside the state have qualified by giving the bond prescribed in section four of this article, the state treasurer shall deposit funds ~~therein in like~~ in the same manner as funds are deposited in depositories within the state under this article.
  The state treasurer may transfer funds to ~~banks~~ financial institutions outside the state to meet obligations to paying agents outside the state ~~and any such transfer~~ if the financial institution ~~must meet~~ meets the same ~~bond~~ collateral requirements as set forth in this article.
§12-1-13. Payment of banking services and litigation costs for prior investment losses.
  (a) The treasurer is authorized to pay for banking services, and goods and services ancillary thereto, by either a compensating balance in a noninterest-bearing account maintained at the financial institution providing the services or with a state warrant as described in section one, article ~~five~~ three of this chapter.
  (b) The investment management board is authorized to pay for the investigation and pursuit of claims against third parties for the investment losses incurred during the period beginning on the first day of August, one thousand nine hundred eighty-four, and ending on the thirty-first day of August, one thousand nine hundred eighty-nine. The payment may be in the form of a state warrant.
  (c) If payment is made by a state warrant, the ~~investment management board at the request of the treasurer~~ state treasurer is authorized to establish within the consolidated fund an investment pool which will generate sufficient income to pay for all banking services provided to the state and to pay for the investigation and pursuit of the prior investment loss claims. All income earned by the investment pool shall be paid into a special account of the treasurer ~~to be~~ known as the banking services account ~~and shall be used solely for the purpose of paying~~ to pay for all banking services and goods and services ancillary to the banking services provided to the state, for the investigation and pursuit of the prior investment loss claims, ~~amortize~~ and for amortization of the balance in the investment imbalance fund.

ARTICLE 2. PAYMENT AND DEPOSIT OF TAXES AND OTHER AMOUNTS DUE THE STATE OR ANY POLITICAL SUBDIVISION.

§12-2-1. How and to whom taxes and other amounts due the state or any political subdivision, official, department, board, commission or other collecting agency thereof may be paid.

All persons, firms and corporations shall promptly pay all taxes and other amounts due from them to the state, or to any political subdivision, official, department, board, commission or other collecting agency thereof authorized by law to collect the taxes and other amounts due by any authorized commercially acceptable means, in money, United States currency or by check, bank draft, certified check, cashier's check, post office money order, or express money order or electronic funds transfer payable and delivered to the official, department, board, commission or collecting agency thereof authorized by law to collect the taxes and other amounts due and having the account upon which the taxes or amounts due are chargeable against the payer of the taxes or amounts due. The duly elected or appointed officers of the state and of its political subdivisions, departments, boards, commissions and collecting agencies having the account on which the taxes or other amounts due are chargeable against the payer of the taxes or other amounts due and authorized by law to collect the taxes or other amounts due, and their respective agents, deputies, assistants and employees shall in no case be the agent of the payer in and about the collection of the taxes or other amounts, but shall at all times and under all circumstances be the agent of the state, its political subdivision, official, department, board, commission or collecting agency having the account on which the taxes or amounts are chargeable against the payer of the taxes or other amounts due and authorized by law to collect the same.

§12-2-2. Itemized record of moneys received for deposit; rules governing deposits; credit to state fund; exceptions.

  (a) All officials and employees of the state authorized by statute to accept moneys due the state of West Virginia shall keep a daily itemized record of moneys so received for deposit in the state treasury and shall deposit within twenty-four hours with the state treasurer all moneys received or collected by them for or on behalf of the state for any purpose whatsoever. The treasurer ~~shall be~~ is authorized to review the procedures and methods used by officials and employees authorized to accept moneys due the state and change ~~such~~ the procedures and methods if he or she determines it ~~to be~~ is in the best interest of the state: Provided, That the treasurer ~~shall not be~~ is not authorized to review or amend the procedures by which the department of tax and revenue accepts moneys due the state. The treasurer shall propose rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the procedure for deposits.
  The official or employee making ~~such~~ deposits with the treasurer shall prepare deposit lists in the manner and upon report forms ~~as may be~~ prescribed by the treasurer. ~~Certified or receipted copies shall be immediately forwarded by the state treasurer to the state auditor and to the secretary of administration.~~ The treasurer shall immediately forward certified or receipted copies to the state auditor and secretary of administration. The original of the deposit report ~~shall become~~ is a part of the treasurer's permanent ~~record~~ records.
  (b) All moneys received by the state from appropriations made by the Congress of the United States shall be recorded in special fund accounts, in the state treasury apart from the general revenues of the state, and shall be expended in accordance with the provisions of article eleven, chapter four of this code. All moneys, other than federal funds, defined in section two, article eleven, chapter four of this code, shall be credited to the state fund and treated by the auditor and treasurer as part of the general revenue of the state except the following funds which shall be recorded in separate accounts:
  (1) All funds excluded by the provisions of section six, article eleven, chapter four of this code;
  (2) All funds derived from the sale of farm and dairy products from farms operated by any ~~agency of the state government other than the farm management commission~~ spending unit of the state;
  (3) All endowment funds, bequests, donations, executive emergency funds, and death and disability funds;
  (4) All fees and funds collected at state educational institutions for student activities;
  (5) All funds derived from collections from dormitories, boardinghouses, cafeterias and road camps;
  (6) All moneys received from counties by institutions for the deaf and blind on account of clothing for indigent pupils;
  (7) All insurance collected on account of losses by fire and refunds;
  (8) All funds derived from bookstores and sales of blank paper and stationery; ~~and collections by the chief inspector of public offices~~
  (9) All moneys collected and belonging to the capitol building fund, state road fund, state road sinking funds, general school fund, school fund, state fund (moneys belonging to counties, districts and municipalities), state interest and sinking funds, state compensation funds, the fund maintained by the public service commission for the investigation and supervision of applications, and all fees, money, interest or funds arising from the sales of all permits and licenses to hunt, trap, fish or otherwise hold or capture fish and wildlife resources and money reimbursed and granted by the federal government for fish and wildlife conservation;
  (10) All moneys collected or received under any act of the Legislature providing that funds collected or received thereunder shall be used for specific purposes.
  (c) All moneys, excepted as provided in subdivisions (1) through (9), inclusive, subsection (b) of this section, shall be paid into the state treasury in the same manner as collections not so excepted, and shall be recorded in separate accounts ~~to be used and expended only~~ for receipt and expenditure for the purposes for which the same are authorized to be collected by law: Provided, That the Legislature may transfer any of the amounts collected pursuant to subdivision (10), subsection (b) of this section, which are found from time to time to exceed funds needed for the purposes set forth in general law ~~may be transferred~~ to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The gross amount collected in all cases shall be paid into the state treasury. ~~and~~ Commissions, costs and expenses, of collection authorized by general law to be paid out of the gross collection, including bank and credit or check card fees, are hereby authorized to be paid out of the moneys collected and paid into the state treasury including without limitation amounts charged for use of bank, charge, check, credit or debit cards, incurred in the collection process shall be paid from the gross amount collected in the same manner as other payments are made from the state treasury.
  (d) The state treasurer ~~shall have authority~~ is authorized to establish an imprest fund or funds in the office of any state ~~agency or institution making~~ spending unit upon receipt of a proper application. ~~to the board~~ To implement this authority, the treasurer shall propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code. The treasurer or his or her designee shall annually audit all imprest funds and prepare a list of ~~all such~~ the funds showing the location and amount as of fiscal year end, retaining the list as a permanent record of the treasurer until the legislative auditor has completed an audit of the imprest funds of all agencies and institutions involved.
  (e) The treasurer ~~shall be~~ is authorized to develop and implement a centralized receipts processing center. The treasurer may request the transfer of equipment and personnel from appropriate state agencies to the centralized receipts processing center in order to implement the provisions of this subsection: Provided, That the governor or appropriate constitutional officer shall have final authority to authorize the transfer of equipment or personnel to the centralized receipts processing center from the respective agency.
§12-2-3. Deposit of moneys not due the state.
  All officials and employees of the state authorized to accept moneys that the state treasurer determines or that this code specifies are not funds due the state pursuant to the provisions of section two of this article shall deposit the moneys, as soon as practicable in the manner and in the depository specified by the treasurer. The treasurer shall prescribe the forms and procedures for depositing the moneys.
  A spending unit shall obtain written authorization from the state treasurer before depositing ~~the funds~~ any moneys in an account outside the treasury. Upon the treasurer's written revocation of the authorization, the spending unit shall deposit funds deposited in an account outside the treasury in into the treasury in the manner and in the depository specified by the treasurer. The treasurer is the final determining authority as to whether ~~these funds are funds~~ moneys are moneys due or not due the state pursuant to section two of this article. The treasurer shall on a quarterly basis provide the legislative auditor with a report of all accounts ~~approved by him or her~~ authorized under this section.
ARTICLE 3. APPROPRIATIONS, EXPENDITURES AND DEDUCTIONS.
§12-3-1. Manner of payment from treasury; form of checks.
  (a) Every person claiming to receive money from the treasury of the state shall apply to the auditor for a warrant for same. The auditor shall thereupon examine the claim, and the vouchers, certificates and evidence, if any, offered in support thereof, and for so much thereof as he or she finds to be justly due from the state, if payment thereof is authorized by law, and if there is an appropriation not exhausted or expired out of which it is properly payable, the auditor shall issue his or her warrant on the treasurer, specifying to whom and on what account the money mentioned therein is to be paid, and to what appropriation it is to be charged. The auditor shall present to the treasurer daily reports on the number of warrants issued, the amounts of the warrants and the dates on the warrants for the purpose of effectuating the investment ~~policy~~ policies of the state treasurer and the investment management board. On the presentation of the warrant to the treasurer, the treasurer shall ascertain whether there are sufficient funds in the treasury to pay that warrant, and if he or she finds it to be so, he or she shall in that case, but not otherwise, endorse his or her check upon the warrant, directed to some depository, which check shall be payable to the order of the person who is to receive the money therein specified.
  (b) If ~~the~~ a check is not presented for payment within six months after it is drawn, it ~~shall then be~~ is the duty of the treasurer to credit it to the depository on which it was drawn, to credit the ~~unclaimed property fund pursuant to the provisions of article eight, chapter thirty-six of this code~~ stale check account, which is hereby created, and immediately notify the auditor to make corresponding entries on the auditor's books. If the state treasurer determines any funds deposited in the stale check account are federal funds, the state treasurer shall notify the spending unit authorizing the payment. Within six months following issuance of the notice, the spending unit shall inform the state treasurer of the amount of federal funds included in the check, the account from which the federal funds were disbursed, and the current fiscal year account to which the federal funds are to be transferred. After receiving the information, the state treasurer shall transfer the amount of federal funds specified as a reimbursement to the current fiscal year account specified to receive federal funds by the spending unit. For a period of up to six months, the state treasurer shall endeavor to pay the money in the stale check account to the payee. The treasurer shall credit the money that has been in the stale check account for six months, or for a shorter period as determined by the treasurer, to the unclaimed property fund pursuant to the provisions of article eight, chapter thirty-six of this code, and shall immediately notify the auditor to make corresponding entries on the auditor's books.
__(c) No state depository may pay a check unless it is presented within six months after it is drawn and every check shall bear upon its face the words 'Void, unless presented for payment within six months.'
  (d) Any information or records maintained by the treasurer concerning any check ~~which has not been~~ not presented for payment within ~~six months~~ one year of the date of issuance ~~may only be disclosed~~ is confidential and exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code, and is disclosable only to the state ~~agency specified on~~ spending unit authorizing the check, or to the payee, his or her personal representative, next of kin or attorney-at-law. ~~and is otherwise confidential and exempt from disclosure under the provisions of article one, chapter twenty-nine-b of this code~~
  (e) All claims required by law to be allowed by any court, and payable out of the state treasury, shall have the seal of the court allowing or authorizing the payment of the claim affixed by the clerk of the court to his or her certificate of its allowance. No claim may be audited and paid by the auditor unless the seal of the court is thereto attached as aforesaid. No tax or fee may be charged by the clerk for affixing his or her seal to the certificate, referred to in this section. The treasurer shall propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the procedure for such payments from the treasury.
§12-3-1a. Payment by deposit in bank account.
  The auditor may issue his warrant on the treasurer to pay any person claiming to receive money from the treasury by deposit to the person's account in any bank or other financial institution by electronic funds transfer, if the person furnishes authorization of the method of payment. The auditor shall prescribe the form of the authorization. If the authorization is in written form, it shall be sent to the auditor for review and approval and then forwarded in electronic form to the treasurer. If the authorization is in electronic form, it shall be sent to both the auditor and the treasurer. The auditor must review and approve the authorization. This section ~~shall~~ may not be construed to require the auditor to utilize the method of payment authorized by this section. An authorization furnished pursuant to this section may be revoked by written notice furnished to the auditor and then forwarded by the auditor in electronic form to the treasurer or by electronic notice furnished to both the auditor and the treasurer. Upon execution of the authorization and its receipt by the office of the auditor, the warrant shall be created in the manner specified on the authorization and forwarded to the treasurer for further disposition to the designated bank or other financial institution specified on the electronic warrant: Provided, That after the first day of July, two thousand two, the state auditor shall cease issuing paper warrants except for income tax refunds. After that date all warrants except for income tax refunds, shall be issued by electronic funds transfer: Provided, however, That the auditor, in his or her discretion, may issue paper warrants on an emergency basis. ~~Provided further, That the treasurer and the auditor may contract with any bank or financial institution for the processing of electronic authorizations~~
ARTICLE 3A. FINANCIAL ELECTRONIC COMMERCE.
§12-3A-3. Financial electronic commerce.
  The state auditor and the state treasurer shall implement electronic commerce capabilities for each of their offices to facilitate the performance of their duties under this code. The state auditor ~~and the~~ shall competitively bid the selection of vendors for the payment card program, the state treasurer shall competitively bid the selection of vendors needed to provide the necessary banking, investment and related services, ~~for their offices~~ and the provisions of article one-b, chapter five, and articles three and seven, chapter five-a of this code shall not apply, unless requested by the state auditor or state treasurer.
  A record, or an authentication, a document or a signature issued or used by the auditor, or the treasurer or the comptroller authorized in article two, chapter five-a of this code shall be considered an original and may not be denied legal effect ~~solely~~ on the ground that it is in electronic form.
  The head of each spending unit is responsible for adopting and implementing security procedures to ensure adequate integrity, security, confidentiality, and auditability of the business transactions of his or her spending unit when utilizing electronic commerce.
§12-3A-4. Payment by the West Virginia check card.
  The state ~~auditor~~ treasurer may establish a state debit card known as the 'West Virginia Check Card' for recipients of employee payroll or of benefits or entitlement programs ~~processed by the auditor~~ who are considered unbanked and who do not possess a federally insured depository institution account. The state ~~auditor~~ treasurer shall use every reasonable effort to make a federally insured depository account available to a recipient, and to encourage all recipients to obtain a federally insured depository account. Prior to issuing the West Virginia check card, the state ~~auditor~~ treasurer shall first make a determination that a recipient has shown good cause that an alternative method to direct deposit is necessary. The ~~state auditor and the~~ state treasurer shall ~~jointly~~ issue a request for proposals in accordance with section three of this article to aid ~~the auditor~~ in the administration of the program and ~~to aid the treasurer~~ in the establishment of state owned bank accounts and accommodate accessible locations for use of the West Virginia check card. In carrying out the purposes of this article, the ~~state auditor and~~ state treasurer shall not compete with banks or other federally insured financial institutions, or for profit.
§12-3A-6. Receipting of electronic commerce purchases.
  The state treasurer may establish a system for acceptance of credit card and other payment methods for electronic commerce purchases from spending units. ~~Each~~ Notwithstanding any other provision of this code to the contrary, each spending unit utilizing WEB commerce, electronic commerce or other method that offers products or services for sale shall utilize the state treasurer's system for acceptance of payments. To facilitate electronic commerce, the state treasurer may authorize a spending unit to assess and collect a fee to recover or pay the cost of accepting bank, charge, check, credit or debit cards from amounts collected. The state treasurer shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty- nine-a of this code to establish the criteria and procedures involved in granting the authorization and may promulgate emergency rules in accordance with the provisions of article three, chapter twenty- nine-a of the code to implement the provisions of this section prior to authorization of the legislative rules.
ARTICLE 5. PUBLIC SECURITIES.
§12-5-1. Securities defined.
  The term 'securities' when used in this article shall include all bonds, securities, debentures, notes or other evidences of indebtedness, and for purposes of this article all cash received with restrictions on expenditures, whether by court order or otherwise.
§12-5-5. Protection and handling of securities.
  (a) The noncash securities retained in the treasury shall be kept in a vault. The treasurer shall use due diligence in protecting the securities against loss from any cause. The treasurer shall designate certain employees to take special care of the securities. Only the treasurer and the designated employees may have access to the securities, and at least two of these persons shall be present whenever the securities are handled in any manner. The treasurer may contract with one or more banking institutions in or outside the state for the custody, safekeeping and management of securities. The contract shall prescribe the rules for the handling and protection of the securities.
  (b) The treasurer shall deposit cash received in the state treasury in accounts as determined by the treasurer, after discussion with the depositing spending unit. The treasurer is authorized to create any accounts in the state treasury needed for purposes of this article and to invest the money in accordance with this code and the restrictions placed on the money, with earnings retained. The treasurer shall prescribe the forms and procedures for receipt and disbursement of the moneys.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-1a. Legislative findings.
  (a) The Legislature hereby finds and declares that all the public employees covered by the public employees retirement system, the teachers retirement system, the West Virginia state police retirement system, the death, disability and retirement fund of the division of public safety, the judges' retirement system and the deputy sheriff's retirement system should benefit from a prudent and conscientious staff of financial professionals dedicated to the administration, investment and management of those employees' and employers' financial contributions and that an independent board and staff should be immune to changing political climates and should provide a stable and continuous source of professional financial investment and management.
  (b) The Legislature finds and declares that teachers and other public employees throughout the state are experiencing economic difficulty and that in order to reduce this economic hardship on these dedicated public employees and to help foster sound financial practices, the West Virginia investment management board is given the authority to develop, implement and maintain an efficient and modern system for the investment and management of the state's money, except those moneys managed by the state treasurer in accordance with article six-c of this chapter. The Legislature further finds that in order to implement these sound fiscal policies, the West Virginia investment management board shall operate as an independent board with its own full-time staff of financial professionals, immune to changing political climates, in order to provide a stable and continuous source of professional financial management.
  (c) The Legislature hereby finds and declares further that experience has demonstrated that prudent investment provides diversification and beneficial return not only for public employees but for all citizens of the state and that in order to have access to this sound fiscal policy, public employee and employer contributions to the 401(a) plans are declared to be made to an irrevocable trust on behalf of each plan, available for no use or purpose other than for the benefit of those public employees.
  (d) The Legislature hereby finds and declares further that the workers' compensation funds and coal-workers' pneumoconiosis fund are trust funds to be used exclusively for those workers, miners and their beneficiaries who have sacrificed their health in the performance of their jobs and further finds that the assets available to pay awarded benefits should be prudently invested so that awards may be paid.
  (e) The Legislature hereby finds and declares further that an independent public body corporate with appropriate governance shall be the best means of assuring prudent financial management of these funds under rapidly changing market conditions and regulations.
  (f) The Legislature hereby finds and declares further that in accomplishing this purpose, the West Virginia investment management board, created and established by this article, is acting in all respects for the benefit of the state's public employees and ultimately the citizens of the state and the West Virginia investment management board is empowered by this article to act as trustee of the irrevocable trusts created by this article and to manage and invest other state funds.
  (g) The Legislature hereby finds and declares further that the standard of care and prudence applied to trustees, the conduct of the affairs of the irrevocable trusts created by this article and the investment of other state funds is intended to be that applied to the investment of funds as described in the 'uniform prudent investor act' codified as article six-c, chapter forty-four of this code and as described in section eleven of this article.
  (h) The Legislature further finds and declares that the West Virginia supreme court of appeals declared the 'West Virginia Trust Fund Act' unconstitutional in its decision rendered on the twenty-eighth day of March, one thousand nine hundred ninety-seven, to the extent that it authorized investments in corporate stock, but the court also recognized that there were other permissible constitutional purposes of the 'West Virginia Trust Fund Act' and that it is the role of the Legislature to determine those purposes consistent with the court's decision and the constitution of West Virginia.
  (i) The Legislature hereby further finds and declares that it is in the best interests of the state and its citizens to create a new investment management board in order to: (1) Be in full compliance with the provisions of the constitution of West Virginia; and (2) protect all existing legal and equitable rights of persons who have entered into contractual relationships with the West Virginia board of investments and the West Virginia trust fund.
§12-6-2. Definitions.
  As used in this article, unless a different meaning clearly appears from the context:
  (1) 'Beneficiaries' means those individuals entitled to benefits from the participant plans;   (2) 'Board' means the governing body for the West Virginia investment management board and any reference elsewhere in this code to board of investments or West Virginia trust fund means the board as defined in this subdivision;
  (3) 'Consolidated fund' means the investment fund established pursuant to subsection (a), section eight of this article and managed by the board. ~~and established pursuant to subsection (a), section eight of this article~~ Effective the first day of July, two thousand three, 'consolidated fund' means the investment fund established in section eight of this article and transferred to and managed by the state treasurer in accordance with article six-c of this chapter;
  (4) '401(a) plan' means a plan which is described in section 401(a) of the Internal Revenue Code of 1986, as amended, and with respect to which the board has been designated to hold assets of the plan in trust pursuant to the provisions of section nine-a of this article;
  (5) 'Local government funds' means the moneys of a political subdivision, including policemen's pension and relief funds, firemen's pension and relief funds and volunteer fire departments, transferred to the board for deposit;
  (6) 'Participant plan' means any plan or fund subject now or hereafter to subsection (a), section nine-a, of this article ~~six of this chapter~~;
  (7) 'Political subdivision' means and includes a county, municipality or any agency, authority, board, county board of education, commission or instrumentality of a county or municipality and regional councils created pursuant to the provisions of section five, article twenty-five, chapter eight of this code;
  (8) 'Trustee' means any member serving on the West Virginia investment management board: Provided, That in section nine-a of this article in which the terms of the trusts are set forth, 'trustee' means the West Virginia investment management board;
  (9) 'Securities' means all bonds, notes, debentures or other evidences of indebtedness and other lawful investment instruments; and
  (10) 'State funds' means all moneys of the state which may be lawfully invested except the 'school fund' established by section four, article XII of the state constitution.
§12-6-4. Management and control of fund; officers; staff; fiduciary or surety bonds for trustees; liability of trustees.
  (a) The management and control of the board shall be vested solely in the trustees in accordance with the provisions of this article.
  (b) The governor shall be the chairman of the board and the trustees shall elect a vice chairman who may not be a constitutional officer or his or her designee to serve for a term of two years. Effective with any vacancy in the vice chairmanship, the board shall elect a vice chairman to a new two-year term. The vice chairman shall preside at all meetings in the absence of the chairman. Annually, the trustees shall elect a secretary, who need not be a member of the board, to keep a record of the proceedings of the board.
  (c) The trustees shall appoint a chief executive officer of the board and shall fix his or her duties and compensation. The chief executive officer shall have five years' experience in investment management with public or private funds within the ten years next preceding the date of appointment. The chief executive officer additionally shall have academic degrees, professional designations and other investment management or investment oversight or institutional investment experience in a combination the trustees consider necessary to carry out the responsibilities of the chief executive officer position as defined by the trustees.
  (d) The trustees shall retain an internal auditor to report directly to the trustees and shall fix his or her compensation. The internal auditor shall be a certified public accountant with at least three years experience as an auditor. The internal auditor shall develop an internal audit plan, with board approval, for the testing of procedures and the security of transactions.
  (e)(1) Each trustee shall give a separate fiduciary or surety bond from a surety company qualified to do business within this state in a penalty amount of one million dollars for the faithful performance of his or her duties as a trustee. The board shall purchase a blanket bond for the faithful performance of its duties in the amount of fifty million dollars or in an amount equivalent to one percent of the assets under management, whichever is greater. The amount of the blanket bond is in addition to the one million dollar individual bond required of each trustee by the provisions of this section. The board shall maintain in effect commercially customary property, liability, crime and other insurance to cover risks of loss from its operations which are not insured under the faithful performance bonds of the trustees. The types and amount of the insurance coverages shall be determined by the board of risk and insurance management created under section three, article twelve, chapter twenty nine of this code, in its reasonable discretion, with reference to the types and amounts of insurance carried by public agencies performing functions similar to those performed by the investment management board.
__(2) In the procurement of the commercially customary property, liability, crime and other insurance and fiduciary or surety bonds, the investment management board shall not pay out any state money for the purpose of insurance against loss, damage or liability to any such state property or on account of any such state activity or responsibility or incur any obligation or indebtedness against the state for such insurance, except (A) upon the board of risk and insurance management's prior approval and placement of such insurance coverage, and (B) the board of risk and insurance management's subsequent approval of invoices and charges therefor.
__(3) The board of risk and insurance management may require a fiduciary or surety bond from a surety company qualified to do business in this state for any person who has charge of, or access to, any securities, funds or other moneys held by the board and ~~the amount of the fiduciary or surety bond shall be fixed by the board~~ shall fix the amount of the fiduciary or surety bond. The premiums payable on all fiduciary or surety bonds shall be an expense of the investment management board.
  (f) The trustees and employees of the board are not liable personally, either jointly or severally, for any debt or obligation created by the board: Provided, That the trustees and employees of the board are liable for acts of misfeasance or gross negligence.
  (g) The board is exempt from the provisions of sections seven and eleven, article three of this chapter and article three, chapter five-a of this code: Provided, That the trustees and employees of the board are subject to purchasing policies and procedures which shall be promulgated by the board. The purchasing policies and procedures may be promulgated as emergency rules pursuant to section fifteen, article three, chapter twenty-nine-a of this code.
  (h) Any employee of the West Virginia trust fund who previously was an employee of another state agency may return to the public employees retirement system pursuant to section eighteen, article ten, chapter five of this code and may elect to either: (1) Transfer to the public employees retirement system his or her employee contributions with accrued interest and, if vested, his or her employer contributions with accrued interest and retain as credited state service all time served as an employee of the West Virginia trust fund; or (2) retain all employee contributions with accrued interest and, if vested, his or her employer contributions with interest and forfeit all service credit for the time served as an employee of the West Virginia trust fund.
§12-6-5. Powers of the board.
  The board may exercise all powers necessary or appropriate to carry out and effectuate its corporate purposes. The board may:
  (1) Adopt and use a common seal and alter it at pleasure;
  (2) Sue and be sued;
  (3) Enter into contracts and execute and deliver instruments;         (4) Acquire (by purchase, gift or otherwise), hold, use and dispose of real and personal property, deeds, mortgages and other instruments;
  (5) Promulgate and enforce bylaws and rules for the management and conduct of its affairs;
  (6) Notwithstanding any other provision of law, retain and employ legal, accounting, financial and investment advisors and consultants;
  (7) Acquire (by purchase, gift or otherwise), hold, exchange, pledge, lend and sell or otherwise dispose of securities and invest funds in interest earning deposits and in any other lawful investments;
  (8) Maintain accounts with banks, securities dealers and financial institutions both within and outside this state;
  (9) Engage in financial transactions whereby securities are purchased by the board under an agreement providing for the resale of the securities to the original seller at a stated price;
  (10) Engage in financial transactions whereby securities held by the board are sold under an agreement providing for the repurchase of the securities by the board at a stated price;
  (11) Consolidate and manage moneys, securities and other assets of the other funds and accounts of the state and the moneys of political subdivisions which may be made available to it under the provisions of this article;
  (12) ~~Enter into agreements with political subdivisions of the state whereby moneys of the political subdivisions are invested on their behalf by the board~~ Accept and invest funds transferred to the board by the state treasurer on behalf of the state and political subdivisions;
  (13) Charge and collect administrative fees from political subdivisions for its services;
  (14) Exercise all powers generally granted to and exercised by the holders of investment securities with respect to management of the investment securities;
  (15) Contract with one or more banking institutions in or outside the state for the custody, safekeeping and management of securities held by the board;
  (16) Make and, from time to time, amend and repeal bylaws, regulations and procedures not inconsistent with the provisions of this article;
  (17) Hire its own employees, consultants, managers and advisors as it considers necessary and fix their compensation and prescribe their duties;
  (18) Develop, implement and maintain its own banking accounts and investments;
  (19) Do all things necessary to implement and operate the board and carry out the intent of this article;
  ~~(20) Require the state auditor and treasurer to transmit state funds on a daily basis for investment:~~ ~~Provided, That money held for meeting the daily obligations of state government need not be transferred;~~
  ~~(21)~~ (20) Upon request of the treasurer, transmit funds for deposit in the state treasury to meet the daily obligations of state government;
  ~~(22)~~ (21) Establish one or more investment funds for the purpose of investing the funds for which it is trustee, custodian or otherwise authorized to invest pursuant to this article. Interests in each fund shall be designated as units and the board shall adopt industry standard accounting procedures to determine each fund's unit value. The securities in each investment fund are the property of the board and each fund shall be considered an investment pool or fund and may not be considered a trust nor may the securities of the various investment funds be considered held in trust. However, units in an investment fund established by or sold by the board and the proceeds from the sale or redemption of any unit may be held by the board in its role as trustee of the participant plans; and
  ~~(23)~~ (22) Notwithstanding any other provision of the code to the contrary, conduct investment transactions, including purchases, sales, redemptions and income collections, which shall not be treated by the auditor as recordable transactions on the state's accounting system.
§12-6-8. Investment funds established; management thereof.
  (a) There is hereby continued a special investment fund ~~to be~~ managed by the board and designated as the 'consolidated fund.' On the first day of July, two thousand three, the board shall transfer the consolidated fund, all moneys, obligations, assets, securities and other investments of the consolidated fund and all records, properties and any other document or item pertaining to the consolidated fund in its possession or under its control to the state treasurer for investment in accordance with article six-c of this chapter.
  (b) Each board, commission, department, official or agency charged with the administration of state funds may request the state treasurer to make moneys available to the board for investment.
  (c) Each political subdivision of this state through its treasurer or equivalent financial officer may enter into agreements with the ~~board~~ state treasurer for the investment of moneys of the political subdivision. Any political subdivision may enter into an agreement with ~~any~~ a state ~~agency~~ spending unit from which it receives funds to ~~allow the funds to be transferred~~ request transfer of the funds to ~~their~~ its investment account with the investment management board or the state treasurer. Nothing herein shall preclude political subdivisions, including without limitation, the boards of trustees of policemen's pension and relief funds, the boards of trustees of firemen's pension and relief funds and volunteer fire departments from investing in equities with the investment management board.
  (d) Moneys held in the various funds and accounts administered by the board shall be invested as permitted by this article and subject to the restrictions contained in this article. ~~For the consolidated fund, the treasurer shall maintain records of the deposits and withdrawals of each participant and the performance of the various funds and accounts.~~ The board shall report the earnings on the various funds under management to the state treasurer at the times determined by the state treasurer. The board shall also establish rules for the administration of the various funds and accounts established by this section as it considers necessary for the administration of the funds and accounts, including, but not limited to: (1) The specification of amounts which may be deposited in any fund or account and minimum periods of time for which deposits will be retained; and (2) creation of reserves for losses: Provided, That in the event any moneys made available to the board may not lawfully be combined for investment or deposited in the consolidated fund established by this section, the board may create special accounts and may administer and invest those moneys in accordance with the restrictions specially applicable to those moneys.
§12-6-9e. Legislative findings; loans for industrial development; availability of funds and interest rates.
  (a) The Legislature hereby finds and declares that the citizens of the state benefit from the creation of jobs and businesses within the state; that a business and industrial development loan program provides for economic growth and stimulation within the state; that loans from pools established in the consolidated fund will assist in providing the needed capital to assist business and industrial development; and that time constraints relating to business and industrial development projects prohibit duplicative review by both the board and West Virginia economic development authority board. The Legislature further finds and declares that an investment in the West Virginia Enterprise Capital Fund, LLC, of moneys in the consolidated fund as hereinafter provided will assist in creating jobs and businesses within the state and providing the needed risk capital to assist business and industrial development. This section is enacted in view of these findings.
  (b) The board shall make available, subject to cash availability, in the form of a revolving loan, up to one hundred fifty million dollars from the consolidated fund to loan the West Virginia economic development authority for business or industrial development projects authorized by section seven, article fifteen, chapter thirty-one of this code and to consolidate existing loans authorized to be made to the West Virginia economic development authority pursuant to this section and pursuant to section twenty, article fifteen, chapter thirty-one of this code which authorizes a one hundred fifty million dollar revolving loan and article eighteen-b, chapter thirty-one of this code which authorizes a fifty million dollar investment pool: Provided, That the West Virginia economic development authority may not loan more than fifteen million dollars for any one business or industrial development project. The revolving loan authorized by this subsection shall be secured by one note at a variable interest rate equal to the twelve-month average of the board's yield on its cash liquidity pool. The rate shall be set on the first day of July and the rate shall be adjusted annually on the same date. The maximum annual adjustment may not exceed one percent. Monthly payments made by the West Virginia economic development authority to the board shall be calculated on a one hundred twenty-month amortization. The revolving loan shall be secured by a security interest that pledges and assigns the cash proceeds of collateral from all loans under this revolving loan pool. The West Virginia economic development authority may also pledge as collateral certain revenue streams from other revolving loan pools which source of funds does not originate from federal sources or from the board.
  The outstanding principal balance of the revolving loan from the board to the West Virginia economic development authority may at no time exceed one hundred three percent of the aggregate outstanding principal balance of the business and industrial loans from the West Virginia economic development authority to economic development projects funded from this revolving loan pool. This provision shall be certified annually by an independent audit of the West Virginia economic development authority financial records.
  (c) The interest rates and maturity dates on the loans made by the West Virginia economic development authority for business and industrial development projects authorized by section seven, article fifteen, chapter thirty-one of this code shall be at competitive rates and maturities as determined by the West Virginia economic development authority board.
  (d) Any and all outstanding loans made by the board, or any predecessor entity, to the West Virginia economic development authority shall be refunded by proceeds of the revolving loan contained in this section and no loans may be made hereafter by the board to the West Virginia economic development authority pursuant to section twenty, article fifteen, chapter thirty-one of this code or article eighteen-b of said chapter.
  (e) The trustees of the board shall bear no fiduciary responsibility as provided in section eleven of this article with specific regard to the revolving loan contemplated in this section.
  (f) Subject to cash availability, the board shall make available to the West Virginia economic development authority from the consolidated fund a nonrecourse loan in an amount up to twenty-five million dollars, for the purpose of the West Virginia economic development authority making a loan or loans from time to time to the West Virginia enterprise advancement corporation, an affiliated nonprofit corporation of the West Virginia economic development authority. The respective loans authorized by this subsection by the board to the West Virginia economic development authority and by the West Virginia economic development authority to the West Virginia enterprise advancement corporation shall each be evidenced by one note and shall each bear interest at the rate of three percent per annum. The proceeds of any and all loans made by the West Virginia economic development authority to the West Virginia enterprise advancement corporation pursuant to this subsection shall be invested by the West Virginia enterprise corporation in the West Virginia enterprise capital fund, LLC, the manager of which is the West Virginia enterprise advancement corporation. The loan to West Virginia economic development authority authorized by this subsection shall be nonrevolving, and advances thereunder shall be made at times and in amounts as may be requested or directed by the West Virginia economic development authority, upon reasonable notice to the board, the loan authorized by this subsection is not subject to or included in the limitations set forth in subsection (b) of this section with respect to the fifteen million dollar limitation for any one business or industrial development project and limitation of one hundred three percent of outstanding loans, and may not be included in the revolving fund loan principal balance for purposes of calculating the loan amortization in subsection (b) of this section. The loan authorized by this subsection to the West Virginia economic development authority shall be classified by the board as a long-term, fixed income investment, shall bear interest on the outstanding principal balance thereof at the rate of three percent per annum payable annually on or before the thirtieth day of June of each year, and the principal of which shall be repaid no later than the thirtieth day of June, two thousand twenty-two, in annual installments due on or before the thirtieth day of June of each year, which annual installments shall commence no later than the thirtieth day of June, two thousand ~~and~~ three, in annual principal amounts as may be agreed upon between the board and the West Virginia economic development authority, and which annual installments need not be equal. The loan authorized by this subsection shall be nonrecourse and shall be payable by the West Virginia economic development authority solely from amounts or returns received by the West Virginia economic development authority in respect of the loan authorized by this subsection to the West Virginia enterprise advancement corporation, whether in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which the board shall have a security interest to secure repayment of the loan to the West Virginia economic development authority authorized by this subsection. Any and all loans from the West Virginia economic development authority to the West Virginia enterprise advancement corporation made pursuant to this subsection shall also bear interest on the outstanding principal balance thereof at the rate of three percent per annum payable annually on or before the thirtieth day of June of each year, shall be nonrecourse and shall be payable by the West Virginia enterprise advancement corporation solely from amounts of returns received by the West Virginia enterprise advancement corporation in respect of its investment in the West Virginia enterprise capital fund, LLC, whether in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which the board shall have a security interest to secure repayment of the loan to the West Virginia economic development authority authorized by this subsection. In the event the amounts or returns received by the West Virginia enterprise corporation in respect of its investment in the West Virginia enterprise capital fund, LLC, are not adequate to pay when due the principal or interest installments, or both, with respect to the loan from the West Virginia economic development authority and, as a result thereof, the West Virginia economic development authority is unable to pay the principal or interest installments, or both, with respect to the loan authorized by this subsection by the board to the West Virginia economic development authority, the principal or interest, or both, as the case may be, due on the loan made to the West Virginia economic development authority pursuant to this subsection shall be deferred, and any and all such past-due principal and interest payments shall promptly be paid to the fullest extent possible upon receipt by the West Virginia enterprise advancement corporation of moneys in respect of its investments in the West Virginia enterprise capital fund, LLC. For tax years beginning after the thirtieth day of June, two thousand one, the West Virginia enterprise capital fund, LLC, is exempt from the payment of any taxes or fees to the state or any subdivision thereof or any municipalities or to any officer or employee of the state or of any subdivision thereof or of any municipality. The property of the West Virginia enterprise capital fund, LLC, shall be exempt from all state, county and municipal taxes. The trustees or the board shall bear no fiduciary responsibility as provided in section eleven, article six, chapter twelve of this code with regard to the loan authorized by this subsection.
  (g) The authority of the investment management board to make loans pursuant to this section expires on the thirtieth day of June, two thousand three. Beginning the first day of July, two thousand three, the provisions of this section are superseded by the provisions of section ten, article six-c of this chapter. All rights, duties and responsibilities of the investment management board arising out of all loans made pursuant to this section and outstanding on the thirtieth day of June, two thousand three, are hereby transferred to the state treasurer effective the first day of July, two thousand three.
§12-6-12. Investment restrictions.
  (a) The board shall hold in equity investments no more than sixty percent of the assets managed by the board and no more than sixty percent of the assets of any individual participant plan. ~~or the consolidated fund~~
  (b) The board shall hold in international securities no more than twenty percent of the assets managed by the board and no more than twenty percent of the assets of any individual participant plan. ~~or the consolidated fund~~
  (c) The board may not at the time of purchase hold more than five percent of the assets managed by the board in the equity securities of any single company or association: Provided, That if a company or association has a market weighting of greater than five percent in the Standard & Poor's 500 index of companies, the board may hold securities of that equity equal to its market weighting.
  (d) The board shall at all times limit its asset allocation and types of securities to the following:
  (1) The board may not hold more than twenty percent of the aggregate participant plan assets in commercial paper. Any commercial paper at the time of its acquisition shall be in one of the two highest rating categories by an agency nationally known for rating commercial paper;
  (2) At no time shall the board hold more than seventy-five percent of the assets managed by the board in corporate debt. Any corporate debt security at the time of its acquisition shall be rated in one of the six highest rating categories by a nationally recognized rating agency; and
  (3) No security may be purchased by the board unless the type of security is on a list approved by the board. The board may modify the securities list at any time and shall give notice of that action pursuant to subsection (g), section three of this article and shall review the list at its annual meeting.
  (e) Notwithstanding the investment limitations set forth in this section, it is recognized that the assets managed by the board, or the assets of the ~~consolidated fund or~~ participant plans, whether considered in the aggregate or individually, may temporarily exceed the investment limitations in this section due to market appreciation, depreciation and rebalancing limitations. Accordingly, the limitations on investments set forth in this section shall not be considered to have been violated if the board rebalances the assets it manages or the assets of the ~~consolidated fund or~~ participant plans, whichever is applicable, to comply with the limitations set forth in this section at least once every six months based upon the latest available market information and any other reliable market data that the board considers advisable to take into consideration.
  (f) The board, at the annual meeting provided for in subsection (h), section three of this article, shall review, establish and modify, if necessary, the investment objectives of the individual participant plans as incorporated in the investment policy statements of the respective trusts so as to provide for the financial security of the trust funds giving consideration to the following:
  (1) Preservation of capital;
  (2) Diversification;
  (3) Risk tolerance;
  (4) Rate of return;
  (5) Stability;
  (6) Turnover;
  (7) Liquidity; and
  (8) Reasonable cost of fees.
§12-6-13. Board to manage certain investments; exceptions.
  All duties vested by law in any agency, commission, official or other board of the state relating to the investment of moneys, and the acquisition, sale, exchange or disposal of securities or any other investment are hereby transferred to the board: Provided, That neither this section nor any other section of this article applies to the duties vested by law in any agency, commission, official or other board of the state relating to the investment of moneys, and the acquisition, sale, exchange or disposal of securities or any other investments that are transferred to the state treasurer pursuant to article six-c of this chapter, to the 'board of the school fund,' ~~and~~ or to the 'school fund' established by section 4, article XII of the state constitution. ~~Provided~~, ~~however,~~ That funds under the control of the municipal bond commission may, in the discretion of the commission, be made available to the board for investment to be invested by the commission as provided in article three, chapter thirteen of this code
§12-6-16. Existing investments.
  The board ~~shall be~~ is vested with ownership of all securities or other investments that were lawfully held by the board of investments or the West Virginia trust fund ~~as of the effective date of this article~~ under prior enactments of this article. All obligations and assets of the board of investments and the West Virginia Trust Fund, Inc., ~~shall be~~ are vested in the West Virginia investment management board ~~as of the effective date of this article~~ under prior enactments of this article. On the first day of July, two thousand three, the investment management board shall transfer the consolidated fund, all moneys, obligations, assets, securities and other investments of the consolidated fund and all records, properties and any other document or item pertaining to the consolidated fund in its possession or under its control to the state treasurer.
ARTICLE 6C. WEST VIRGINIA CONSOLIDATED FUND INVESTMENT ACT.
§12-6C-1. Purposes and objects; how article cited.
  This article, cited as the 'West Virginia Consolidated Fund Investment Act,' is enacted to provide investment and management services for the consolidated fund, comprised of the operating funds of the state and of political subdivisions, for the purposes of making state moneys more accessible to state government, enabling investment managers to focus on the consolidated fund and allowing the West Virginia investment management board to focus on long-term investment of the trust estates it manages pursuant to article six of this chapter.
§12-6C-2. Legislative findings.
  (a) The Legislature finds and declares that the consolidated fund should benefit from financial professionals dedicated to and focused on the sound administration, investment and management of the fund.
  (b) The Legislature finds and declares that the state treasurer currently enters into agreements on behalf of the West Virginia investment management board and provides reporting services for participants in the consolidated fund.
  (c) The Legislature finds and declares that the transfer of the consolidated fund to the state treasurer will allow for management of the fund within state government and will encourage better cash management of state moneys.
  (d) The Legislature finds and declares that in accomplishing these purposes, the state treasurer is acting in all respects for the benefit of the citizens of the state in managing and investing the consolidated fund.
  (e) The Legislature further finds and declares that it is in the best interests of the state, its citizens and the political subdivisions for the state treasurer to manage and invest the consolidated fund to: (1) Provide focused investment services for the operating funds of the state and of its political subdivisions; (2) provide better management of all state funds within state government; and (3) allow the West Virginia investment management board to focus on the long-term investment of the trust estates it manages pursuant to article six of this chapter.
§12-6C-3. Definitions.
  As used in this article, unless a different meaning clearly appears from the context:
  (1) 'Consolidated fund' means the investment fund transferred to the state treasurer by the investment management board and continued pursuant to section five of this article;
  (2) 'Local government funds' or 'moneys of a political subdivision' means the moneys of a political subdivision, including policemen's pension and relief funds, firemen's pension and relief funds and volunteer fire department funds, transferred to the state treasurer for deposit;
  (3) 'Participant' means any state government spending unit or political subdivision which transfers moneys to the board for investment;
  (4) 'Political subdivision' means and includes a county, municipality or any agency, authority, board, county board of education, commission or instrumentality of a county or municipality and regional councils created pursuant to the provisions of section five, article twenty- five, chapter eight of this code;
  (5) 'Securities' means all bonds, notes, debentures or other evidences of indebtedness and other lawful investment instruments; and
  (6) 'State funds' means all moneys of the state which may be lawfully invested except the 'school fund' established by section four, article XII of the state constitution.
§12-6C-4. Powers of the state treasurer.
  The state treasurer may exercise all powers necessary or appropriate to carry out and effectuate the purposes of this article. The state treasurer may:
  (1) Enter into contracts and execute and deliver instruments utilizing the policies and procedures of the state treasurer's office;
  (2) Acquire (by purchase, gift or otherwise), hold, use and dispose of real and personal property, deeds, mortgages and other instruments;
  (3) Promulgate and enforce policies and rules for the management of the consolidated fund;
  (4) Notwithstanding any other provision of law to the contrary, specifically article one-b, chapter five, articles three and seven, chapter five-a, of this code, retain and contract with legal, accounting, financial and investment managers, advisors and consultants;
  (5) Acquire (by purchase, gift or otherwise), hold, exchange, pledge, lend and sell or otherwise dispose of securities and invest funds in investments authorized by this article;
  (6) Maintain accounts with banks, securities dealers and financial institutions both within and outside this state;
  (7) Engage in financial transactions whereby securities are purchased by the state treasurer under an agreement providing for the resale of the securities to the original seller at a stated price;
  (8) Engage in financial transactions whereby securities held by the state treasurer are sold under an agreement providing for the repurchase of the securities by the state treasurer at a stated price;
  (9) Consolidate and manage moneys, securities and other assets of the consolidated fund and accounts of the state and the moneys of political subdivisions which may be made available to the state treasurer under the provisions of this article;
  (10) Abide by agreements entered into by the state treasurer with political subdivisions of the state for investment of moneys of the political subdivisions by the state treasurer;
  (11) Charge and collect administrative fees from participants, including political subdivisions, for services in connection with the consolidated fund;
  (12) Exercise all powers generally granted to and exercised by the holders of investment securities with respect to management of the investment securities;
  (13) Utilize any contract or agreement of the investment management board in effect on the first day of July, two thousand three, and any contract or agreement of the state treasurer's office, and enter into contracts or agreements, including without limitation entering into a contract or agreement with one or more banking institutions in or outside the state for the custody, safekeeping and management of securities held by the state treasurer and with any investment manager and investment advisor needed;
  (14) Make and, from time to time, amend and repeal policies, rules, regulations and procedures not inconsistent with the provisions of this article;
  (15)    Hire employees, consultants, managers and advisors as the state treasurer considers necessary and fix their compensation and prescribe their duties;
  (16)    Develop, implement and maintain investment accounts;
  (17)    Offer assistance and seminars to spending units and to political subdivisions; and
  (18) Establish one or more investment funds, pools or participant accounts for the purpose of investing the moneys and assets for which the state treasurer, a custodian or otherwise is authorized to invest pursuant to this article. Interests in each fund, pool or participant account are designated as units and the state treasurer shall adopt industry standard accounting procedures to determine the unit value of each fund, pool or participant account. The securities in each investment fund, pool or participant account are the property of the state treasurer, and each fund, pool or participant account is considered an investment pool, investment fund or investment participant account.
§12-6C-5. Consolidated fund continued; management.
  (a) The 'consolidated fund' is the special investment fund managed by the West Virginia investment management board through the thirtieth day of June, two thousand three. The consolidated fund is hereby continued and is vested in the state treasurer on the first day of July, two thousand three. References elsewhere in this code to the entity investing the moneys of the consolidated fund, to the West Virginia board of investments, to the West Virginia trust fund or to the West Virginia investment management board in connection with investing the moneys of the consolidated fund, means the state treasurer.
  (b) Each spending unit authorized to invest moneys shall unless prohibited by law request the state treasurer to invest its moneys. The state treasurer shall transfer the moneys to the investment funds or pools of the consolidated fund or the investment management board specified by the spending unit.
  (c) Each political subdivision of this state through its treasurer or equivalent financial officer may enter into agreements with the state treasurer for the investment of moneys of the political subdivision. Any political subdivision may enter into an agreement with a state spending unit from which it receives moneys to allow the state treasurer to invest the moneys. The state treasurer shall transfer the moneys to the investment funds or pools of the consolidated fund or the investment management board specified by the political subdivision.
  (d) Moneys held in the various funds and accounts administered by the state treasurer are invested as permitted by this article and subject to the restrictions contained in this article.
  (e) The state treasurer shall maintain records of the deposits and withdrawals of each participant and the performance of the various funds, pools and accounts.
  (f) The state treasurer shall establish policies for the administration of the various funds, pool and accounts authorized by this article as it determines necessary. The policies may specify the minimum amounts and timing of deposits and withdrawals, and any other matters authorized by the state treasurer.
§12-6C-6. Management and control of fund; staff; liability.
  (a) The management and control of the consolidated fund is vested solely in the state treasurer in accordance with the provisions of this article.
  (b) The state treasurer may utilize the staff of his or her office, employ personnel, and contract with any person or entity needed to perform the tasks related to operating the consolidated fund.
  (c) The state treasurer shall retain an internal auditor to report directly to the state treasurer and shall fix his or her compensation. As a minimum qualification, an internal auditor must be a certified public accountant with at least three years experience as an auditor. The internal auditor shall develop an internal audit plan for the testing of procedures and the security of transactions.
  (d) The state treasurer and employees of the state treasurer performing work in connection with the consolidated fund are not liable personally, either jointly or severally, for any debt or obligation created by the state treasurer.
  (e) Transactions, contracts and agreements for the consolidated fund are exempt from the provisions of article one-b, chapter five, and articles three and seven, chapter five-a, of this code. However, the transactions, contracts and agreements are subject to the purchasing policies and procedures of the state treasurer's office.
§12-6C-7. Administration of consolidated fund.
  (a) In the administration of the consolidated fund continued by this article, the state treasurer may:
  (1) Purchase, retain, hold, transfer and exchange and sell, at public or private sale, the whole or any part of the fund or pools upon such terms and conditions as the state treasurer considers advisable;
  (2) Invest and reinvest the fund and pools or any part thereof in fixed income securities as provided in this article;
  (3) Carry the securities and other property held in trust either in the name of the state treasurer or in the name of a nominee of the state treasurer;
  (4) Vote, in person or by proxy, all securities held; to join in or to dissent from and oppose the reorganization, recapitalization, consolidation, merger, liquidation or sale of corporations or property; to exchange securities for other securities issued in connection with or resulting from any transaction; to pay any assessment or expense which the state treasurer considers advisable for the protection of any interest as holder of the securities; to exercise any option appurtenant to any securities for the conversion of any securities into other securities; and to exercise or sell any rights issued upon or with respect to the securities of any corporation, all upon terms the state treasurer considers advisable;
  (5) Prosecute, defend, compromise, arbitrate or otherwise adjust or settle claims in favor of or against the state treasurer;
  (6) Employ and pay from the fund any investment advisers, brokers, counsel, managers and any other assistants and agents the state treasurer considers advisable;
  (7) Develop, implement and modify an asset allocation plan and investment policy for each fund or pool; and
  (8) Create a local government investment pool, a program to purchase certificates of deposit from West Virginia financial institutions that are depositories and any funds, pools or participant accounts needed.
  (b) All income and earnings are free from anticipation, alienation, assignment or pledge by, and free from attachment, execution, appropriation or control by or on behalf of, any and all creditors of any beneficiary by any proceeding at law, in equity, in bankruptcy or insolvency.
  (c)     The state treasurer shall render an annual accounting not more than one hundred twenty days following the close of the fiscal year.
§12-6C-8. Asset allocation; investment policies; authorized investments; restrictions.
  (a) The state treasurer shall develop, adopt, review or modify an asset allocation plan for the consolidated fund annually.
  (b) The state treasurer shall adopt, review, modify or cancel the investment policy of each fund or pool created annually. For each participant directed account the state treasurer may authorize, the state treasurer shall create an account and develop an investment policy. The state treasurer shall review all participant directed accounts and investment policies annually for modification.
  (c) The state treasurer shall consider the following when adopting, reviewing, modifying or canceling investment policies:
  (1) Preservation of capital;
(2) Risk tolerance;
  (3) Credit standards;
  (4) Diversification;
  (5) Rate of return;
  (6) Stability and turnover;
  (7) Liquidity;
  (8) Reasonable costs and fees;
  (9) Permissible investments;
  (10) Maturity ranges;
  (11) Internal controls;
  (12) Safekeeping and custody;
  (13) Valuation methodologies;
  (14) Calculation of earnings and yields;
  (15) Performance benchmarks and evaluation; and
  (16) Reporting.
  (d) No security may be purchased by the state treasurer unless the type of security is on a list approved by the state treasurer. The state treasurer shall review the list annually.
  (e) Notwithstanding the restrictions which are otherwise provided by law with respect to the investment of funds, the state treasurer and all participants, now and in the future, are authorized to invest funds of the consolidated fund in these securities:
  (1) Obligations of, or obligations that are insured as to principal and interest by, the United States of America or any agency, association or corporation thereof, obligations and securities of United States chartered, owned or sponsored enterprises, and obligations and securities considered moral obligations of the United States government, including without limitation:
  (i) United States Treasury;
  (ii) Export-Import Bank of the United States;
  (iii) Farmers Home Administration;
  (iv) Federal Farm Credit Banks;
  (v) Federal Home Loan Banks;
  (vi) Federal Home Loan Mortgage Corporation;
  (vii) Federal Intermediate Credit Banks;
  (viii) Federal Land Banks;
  (ix) Federal National Mortgage Association;
  (x) Government National Mortgage Association;
  (xi) Merchant Marine bonds;
  (xii) Student Loan Marketing Association; and
  (xiii) Tennessee Valley Authority.
  (2) Commercial paper with one of the two highest commercial paper credit ratings by a nationally recognized investment rating firm;
  (3) Corporate debt rated in one of the six highest rating categories by a nationally recognized rating agency;
  (4) State and local government, or any instrumentality or agency thereof, securities with one of the three highest ratings by a nationally recognized rating agency;
  (5) Repurchase agreements involving the purchase of United States Treasury securities and repurchase agreements fully collateralized by obligations of the United States government or its agencies or instrumentalities;
  (6) Reverse repurchase agreements involving the purchase of United States Treasury securities and reverse repurchase agreements fully collateralized by obligations of the United States government or its agencies or instrumentalities;
  (7) Asset-backed securities rated in the highest category by a nationally recognized rating agency, but excluding mortgage-backed securities;
  (8) Investments in accordance with the linked deposit program, a program using West Virginia banks to obtain certificates of deposit, loans and any other programs authorized by the Legislature; and
  (9) Any other fixed income security recommended to the treasurer by an investment advisor in accordance with this article.
§12-6C-9. Investment authority for consolidated fund transferred to state treasurer.
  All duties vested by law in state spending units and the West Virginia investment management board relating to the consolidated fund are hereby transferred to the state treasurer, including without limitation the investment of moneys, and the acquisition, sale, exchange or disposal of securities or any other investment: Provided, That neither this section nor any other section of this article applies to the 'board of the school fund' and the 'school fund' established by section 4, article XII of the state constitution: Provided, however, That the municipal bond commission may make funds under its control available to the state treasurer for investment.
§12-6C-10. Legislative findings; loans for industrial development; availability of funds and interest rates.
  (a) The Legislature hereby finds and declares that the citizens of the state benefit from the creation of jobs and businesses within the state; that business and industrial development loan programs provide for economic growth and stimulation within the state; that loans from pools established in the consolidated fund will assist in providing the needed capital to assist business and industrial development; and that time constraints relating to business and industrial development projects prohibit duplicative review by both the state treasurer and West Virginia economic development authority board. The Legislature further finds and declares that an investment in the West Virginia Enterprise Capital Fund, LLC, of moneys in the consolidated fund as provided in this section will assist in creating jobs and businesses within the state and providing the needed risk capital to assist business and industrial development. This section is enacted in view of these findings.
  (b) The state treasurer shall make available, subject to a liquidity determination, in the form of a revolving loan, up to one hundred seventy-five million dollars from the consolidated fund to loan the West Virginia economic development authority for business or industrial development projects authorized by section seven, article fifteen, chapter thirty-one of this code and to consolidate existing loans authorized to be made to the West Virginia economic development authority pursuant to this section and pursuant to section twenty, article fifteen, chapter thirty-one of this code which authorizes a one hundred fifty million dollar revolving loan and article eighteen- b, chapter thirty-one of this code which authorizes a fifty million dollar investment pool: Provided, That the West Virginia economic development authority may not loan more than fifteen million dollars for any one business or industrial development project. The revolving loan authorized by this subsection is secured by one note at a variable interest rate equal to the twelve-month average of the board's yield on its cash liquidity pool. The rate is set on the first day of July and adjusted annually on the same date. The maximum annual adjustment may not exceed one percent. Monthly payments made by the West Virginia economic development authority to the state treasurer are calculated on a one hundred twenty-month amortization. The revolving loan is secured by a security interest that pledges and assigns the cash proceeds of collateral from all loans under this revolving loan pool. The West Virginia economic development authority may also pledge as collateral certain revenue streams from other revolving loan pools which source of funds does not originate from federal sources.
  The outstanding principal balance of the revolving loan from the state treasurer to the West Virginia economic development authority may at no time exceed one hundred three percent of the aggregate outstanding principal balance of the business and industrial loans from the West Virginia economic development authority to economic development projects funded from this revolving loan pool. The independent audit of the West Virginia economic development authority financial records shall annually certify the one hundred three percent requirement.
  (c) The interest rates and maturity dates on the loans made by the West Virginia economic development authority for business and industrial development projects authorized by section seven, article fifteen, chapter thirty-one of this code are at competitive rates and maturities as determined by the West Virginia economic development authority board.
  (d) Any and all outstanding loans made by the state treasurer, or any predecessor person or entity, to the West Virginia economic development authority are refundable by proceeds of the revolving loan contained in this section and the state treasurer shall make no loans to the West Virginia economic development authority pursuant to section twenty, article fifteen, chapter thirty- one of this code or article eighteen-b of said chapter.
  (e) The state treasurer bears no fiduciary responsibility with regard to any of the loans contemplated in this section.
  (f) Subject to cash availability, the state treasurer shall make available to the West Virginia economic development authority from the consolidated fund a nonrecourse loan in an amount up to twenty-five million dollars, for the purpose of the West Virginia economic development authority making a loan or loans from time to time to the West Virginia enterprise advancement corporation, an affiliated nonprofit corporation of the West Virginia economic development authority. The respective loans authorized by this subsection by the state treasurer to the West Virginia economic development authority and by the West Virginia economic development authority to the West Virginia enterprise advancement corporation shall each be evidenced by one note and shall each bear interest at the rate of three percent per annum. The proceeds of any and all loans made by the West Virginia economic development authority to the West Virginia enterprise advancement corporation pursuant to this subsection shall be invested by the West Virginia enterprise corporation in the West Virginia enterprise capital fund, LLC, the manager of which is the West Virginia enterprise advancement corporation. The loan to West Virginia economic development authority authorized by this subsection shall be nonrevolving, and advances under the loan shall be made at times and in amounts requested or directed by the West Virginia economic development authority, upon reasonable notice to the state treasurer, the loan authorized by this subsection is not subject to or included in the limitations set forth in subsection (b) of this section with respect to the fifteen million dollar limitation for any one business or industrial development project and limitation of one hundred three percent of outstanding loans, and may not be included in the revolving fund loan principal balance for purposes of calculating the loan amortization in subsection (b) of this section. The loan authorized by this subsection to the West Virginia economic development authority shall be classified by the state treasurer as a long-term, fixed income investment, shall bear interest on the outstanding principal balance thereof at the rate of three percent per annum payable annually on or before the thirtieth day of June of each year, and the principal of which shall be repaid no later than the thirtieth day of June, two thousand twenty-two, in annual installments due on or before the thirtieth day of June of each year. The annual installments shall commence no later than the thirtieth day of June, two thousand three, in annual principal amounts agreed upon between the state treasurer and the West Virginia economic development authority. The annual installments need not be equal. The loan authorized by this subsection shall be nonrecourse and shall be payable by the West Virginia economic development authority solely from amounts or returns received by the West Virginia economic development authority in respect of the loan authorized by this subsection to the West Virginia enterprise advancement corporation, whether in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which the state treasurer shall have a security interest to secure repayment of the loan to the West Virginia economic development authority authorized by this subsection. Any and all loans from the West Virginia economic development authority to the West Virginia enterprise advancement corporation made pursuant to this subsection shall also bear interest on the outstanding principal balance of the loan at the rate of three percent per annum payable annually on or before the thirtieth day of June of each year, shall be nonrecourse and shall be payable by the West Virginia enterprise advancement corporation solely from amounts of returns received by the West Virginia enterprise advancement corporation in respect of its investment in the West Virginia enterprise capital fund, LLC, whether in the form of interest, dividends, realized capital gains, return of capital or otherwise, in all of which the state treasurer shall have a security interest to secure repayment of the loan to the West Virginia economic development authority authorized by this subsection. In the event the amounts or returns received by the West Virginia enterprise corporation in respect of its investment in the West Virginia enterprise capital fund, LLC, are not adequate to pay when due the principal or interest installments, or both, with respect to the loan from the West Virginia economic development authority and, as a result thereof, the West Virginia economic development authority is unable to pay the principal or interest installments, or both, with respect to the loan authorized by this subsection by the state treasurer to the West Virginia economic development authority, the principal or interest, or both, as the case may be, due on the loan made to the West Virginia economic development authority pursuant to this subsection shall be deferred, and any and all past-due principal and interest payments shall promptly be paid to the fullest extent possible upon receipt by the West Virginia enterprise advancement corporation of moneys in respect of its investments in the West Virginia enterprise capital fund, LLC. For tax years beginning after the thirtieth day of June, two thousand one, the West Virginia enterprise capital fund, LLC, is exempt from the payment of any taxes or fees to the state or any subdivision thereof or any municipalities or to any officer or employee of the state or of any subdivision thereof or of any municipality. The property of the West Virginia enterprise capital fund, LLC, shall be exempt from all state, county and municipal taxes. The state treasurer shall bear no fiduciary responsibility with regard to any loans authorized by this code.
§12-6C-11. Securities handling.
  In financial transactions whereby securities are purchased by the state treasurer under an agreement providing for the resale of the securities to the original seller at a stated price, the state treasurer shall take physical possession of the securities, directly, by a custodian bank or through a neutral third party: Provided, That an agreement with a neutral third party may not waive liability for the handling of the securities: Provided, however, That when the state treasurer is unable to take possession, directly, by a custodian bank or through a mutual third party, the state treasurer may leave securities in a segregated account with the original seller, provided the amount of the securities with any one seller may not exceed one hundred fifty million dollars.
§12-6C-12. Standard of care.
  (a) The 'Uniform Prudent Investor Act' codified in article six-c, chapter forty-four of this code is the standard for any investments made under this article. Investments are further subject to the following:
  (1) The state treasurer shall diversify fund investment so as to minimize the risk of large losses unless, under the circumstances, it is clearly prudent not to do so;
  (2) The state treasurer shall defray reasonable expenses of investing and managing the consolidated fund by charging fees as provided in this article; and
  (3) The state treasurer shall discharge his or her duties in accordance with the documents and instruments consistent with the provisions of this article.
  (b) Duties of the state treasurer apply only with respect to those assets deposited with or otherwise held for the consolidated fund.
§12-6C-13. Existing investments.
  The investment management board shall transfer the cash, securities and other investments of the consolidated fund it holds, maintains or administers to the state treasurer on the first day of July, two thousand three, which will lawfully vest the state treasurer with ownership of all securities or other investments of the consolidated fund.
§12-6C-14. Annual audits; financial statements; information.
  (a) The state treasurer shall have an annual financial and compliance audit of the assets, funds, pools and participant accounts managed under this article made by a certified public accounting firm which has a minimum staff of ten certified public accountants and which is a member of the American institute of certified public accountants and, if doing business in West Virginia, a member of the West Virginia society of certified public accountants.
  (b) The state treasurer shall produce monthly financial statements for the assets managed by the state treasurer and send them to the governor, president of the Senate, speaker of the House of Delegates and legislative auditor, and provide copies as reasonably requested.
  (c) Each quarter the state treasurer shall deliver a report for the prior quarter to the council of finance and administration.
  (d) The state treasurer shall contract with an investment consulting or a certified public accounting firm meeting the criteria set out in subsection (a) of this section for an annual audit of the reported returns of the assets of the consolidated fund.
  (e) Unless specifically otherwise stated, copies of the reports required in this section shall be furnished to the governor, state auditor, president of the Senate, speaker of the House of Delegates, council of finance and administration, legislative librarian and upon request to any legislator, legislative committee, financial institution, member of the media, and the public.
  (f) The state treasurer shall provide any other information requested in writing by the council of finance and administration or any member of the Legislature.
§12-6C-15. Reports to participants.
  (a) On a monthly basis, the state treasurer shall provide an itemized statement of a spending unit's or other participant's account in the consolidated fund to each state spending unit and any other entity investing moneys in the consolidated fund. The statement shall include the beginning balance, contributions, withdrawals, income distributed, change in value and ending balance.
  (b) The state treasurer shall prepare annually, or more frequently if determined necessary by the state treasurer, a report of its operations and the performance of the various funds, pools and participant accounts administered under this article. The state treasurer shall furnish copies of the report to each participant, the governor, state auditor, president of the Senate, speaker of the House of Delegates, legislative auditor, and upon request to any legislative committee, any legislator, any banking institution or state or federal savings and loan association in this state, and any member of the news media. The state treasurer shall also keep the reports available for inspection by any citizen of this state.
§12-6C-16. Legal status of spending units continued.
  Except as otherwise provided in this article, every state spending unit shall retain all of the powers and shall exercise all of the functions and duties vested in or imposed upon it by law, as to any fund or account.
§12-6C-17. Authorization for loans by the state treasurer.
  (a) Any loans made from the consolidated fund prior to its transfer to the state treasurer shall remain in existence and in accordance with the terms and conditions of the loan.
  (b) The state treasurer shall continue the work of the investment management board in taking the steps necessary to increase the liquidity of the consolidated fund to allow for any loans authorized by the Legislature without increasing the risk of loss.
§12-6C-18. Creation of fee account and investment account; budget.
  (a) The state treasurer may charge fees, which are subtracted from the total amount of assets in the consolidated fund, for the reasonable and necessary expenses incurred by the state treasurer in rendering services. All fees collected shall be deposited in a special account in the state treasury to be known as the 'Consolidated Fund Fee Account.' Expenditures from the fund shall be for the fulfillment of the provisions of this article.
  (b) There is hereby created in the state treasury the 'Consolidated Fund Investment Account' for use in receiving funds for investment, disbursing funds from investments and processing investment transactions.
  (c) All fees dedicated, identified or readily identifiable to an entity, fund, pool or participant account shall be charged to that entity, fund, pool or participant account and all other fees shall be charged as a percentage of assets under management. Annually, the state treasurer shall adopt a fee schedule and a budget reflecting fee schedules.
CHAPTER 31. CORPORATIONS.
ARTICLE 15. ECONOMIC DEVELOPMENT AUTHORITY.
§31-15-20. Consolidated fund investments as revolving loan fund.
  The ~~board of investments~~ state treasurer shall, under the provisions of this article and section ten, article six-c, chapter twelve of this code, invest moneys, securities and other assets of the ~~special account for the common investment of state funds designated as the state account within the special investment fund designated as the~~ consolidated fund ~~established under the provisions of subsection (b), section eight, article six, chapter twelve of this code~~ as a revolving loan fund with the authority. ~~to enable the~~ The authority ~~to make~~ may approve loans ~~approved by the authority and to be funded from such consolidated fund~~ from the revolving loan fund in an amount which shall not at anytime exceed one hundred ~~fifty~~ seventy-five million dollars in the aggregate principal amount outstanding. With respect to loans funded under this article through the consolidated fund of the state, ~~such~~ the loans shall be made in the name of the consolidated fund by the authority."
  The bill was then ordered to third reading.
  S. B. 650, Defining waters of state; on second reading, coming up in regular order, was read a second time.
  An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill as follows on page two, beginning on line one, by striking out the remainder of the bill, and inserting in lieu thereof the following:
"ARTICLE 15. WATER RESOURCES OF THE STATE.
§20-15-1. Protection of water resources.
  (a) Water is a vital natural resource of the state. A sufficient quantity of water is essential to maintain, preserve and promote the quality of life and the economic vitality of the state.
  (b) The state's power to own, manage and control waters within the state in the public interest shall extend to the limits allowed under the common law existing on the effective date of this section, applicable federal and state statutes and the constitutions of West Virginia and the United States: Provided, That the state's ownership, management and control is subject to private rights or ownership in property as recognized by the common law existing on the effective date of this section, applicable federal and state statutes and the constitutions of West Virginia and the United States existing on the effective date of this section, including, but not limited to, private rights or ownership in flowing waters, in springs, and in surface and subterranean waters.
  (c) The state of West Virginia may not impose a fee for the use of waters within the state or impose a tax for the use thereof, other than those fees by a governmental body or regulatory agency imposed pursuant to legislative enactment."
  The bill was then ordered to third reading.
  S. B. 661, Making supplementary appropriation of federal funds to department of health and human resources, division of health, maternal and child health; on second reading, coming up in regular order, was read a second time and ordered to third reading.
  S. B. 662 , Expiring funds to unappropriated balance in general revenue from division of banking, assessment and examination fund; on second reading, coming up in regular order, was read a second time and ordered to third reading.
  H. B. 3213 , Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
  H. B. 3214, Expiring funds to the secretary of state - state election fund; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
  H. B. 3215, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
  H. B. 3216, Supplementing, amending, reducing and increasing items of the existing appropriations from the state fund, general revenue, to the secretary of state; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
  H. B. 3217, Establishing a fund and making a supplementary appropriation of federal funds out of the treasury from the balance of federal moneys remaining unappropriated; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
  H. B. 3218, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
  H. B. 3219, Expiring funds to the balance of the division of highways - highway tax fund; on second reading, coming up in regular order, was, on motion of Delegate Staton, laid over one day.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had acceded to the request of the House for the return of
  Com. Sub. for H. B. 2126, Strengthening penalties relating to violations of fire laws and rules.
  At the request of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for H. B. 2126) was taken up for immediate consideration.
  On motion of Delegate Staton, the House of Delegates reconsidered a previously adopted title amendment to the bill, and the same was subsequently withdrawn.
  On motion of Delegate Amores, the title of the bill was then amended to read as follows:
  Com. Sub. for H. B. 2126 - "A Bill to amend and reenact sections twelve, sixteen-a and twenty-seven, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article three-a of said chapter; and to amend article three, chapter sixty-one of said code by adding thereto a new section, designated section five-a, all relating to violations of fire laws and rules; increasing the criminal offense for a false fire alarm to a felony when it is done with intent to cause injury to persons or property to divert attention from another offense; providing for increased criminal penalties; creating an offense of fifth degree arson in certain circumstances for persons involved in setting fires; and providing criminal penalty under certain circumstances for persons involved in setting fires to the property of others."
  On the passage of the bill, the yeas and nays were taken (Roll No. 613), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Doyle.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2126) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had requested the return of
  H. B. 2363, Authorizing the tax commissioner to suspend a business registration certificate if any business neglects to pay real property taxes thirty days after the delinquent tax list is published.
  On motion of Delegate Staton, the House acceded to the request of the Senate for the return of the bill.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  At 6:25 p.m., on motion of Delegate Staton, the House of Delegates recessed until 8:30 p.m., and reconvened at that time.
* * * * * * * * * *
Evening Session
* * * * * * * * * *
Reordering of the Calendar
  Delegate Staton announced that the Committee on Rules had transferred S. C. R. 11, S. C. R. 12, S. C. R. 20, Com. Sub. for H. C. R. 34, S. C. R. 35, S. C. R. 45, S. C. R. 46, S. C. R. 52, H. C. R. 60, H. C. R. 64, H. C. R. 65, H. C. R. 80, H. C. R. 84, H. C. R. 85, H. C. R. 87, H. C. R. 88, H. C. R. 90, H. C. R. 93, H. C. R. 95 and Com Sub. for H. C. R. 98 on Unfinished Business, House Calendar, to the Special Calendar; Com. Sub. for S. B. 109, Com. Sub. for S. B. 162, S. B. 186, Com. Sub. for S. B. 467 and Com. Sub. for S. B. 628, on third reading, House Calendar, to the Special Calendar; Com. Sub. for S. B. 651, Com. Sub. for S. B. 371 and Com. Sub. for S. B. 475, on second reading, Special Calendar, to the House Calendar.
Messages from the Senate
  At the request of Delegate Staton, the House then proceeded to further consideration of Com. Sub. for H. B. 2121, Establishing the "All-Terrain Vehicle Safety Act" and the reasons therefor, having been reported in earlier proceedings and postponed until this time.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new chapter, designated chapter seventeen-f, to read as follows:
CHAPTER 17F. ALL-TERRAIN VEHICLES.
ARTICLE 1. REGULATION OF ALL-TERRAIN VEHICLES.
§17F-1-1. Definitions.
  As used in this chapter:
  (1) 'All-terrain vehicle' or 'ATV' means a three-wheeled or four-wheeled motor vehicle, generally characterized by large low-pressure tires, a seat designed to be straddled and handlebars for steering, which is intended for off-road use usually on various types of non-paved terrain other than an unpaved race track;
  (2) 'Commissioner' means the commissioner of the division of motor vehicles.

§17F-1-2. Acts prohibited by operator.

(a) No all-terrain vehicle may be operated in this state:

  (1) On any interstate highway except by public safety personnel responding to emergencies;
  (2) On any road or highway with a center line or more than two lanes and a speed limit of sixty-five miles per hour or less except for the purpose of crossing the road, street or highway, if:
  (A) The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
  (B) The vehicle is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
  (C) The operator yields his or her right of way to all oncoming traffic that constitutes an immediate potential hazard; and
  (D) Both the headlight and taillight are illuminated when the crossing is made if the vehicle is so equipped.
  (3) On any road, trail or any other lands within boundaries of any state park, state forest or wildlife management area except as may be authorized by the director of the division of natural resources by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code;
  (4) On any road, trail or any other lands within the boundaries of the Hatfield-McCoy Recreation Area, except as may be authorized by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code by the Hatfield-McCoy Recreation Area Authority;
  (5) On any road, trail or any other lands under the jurisdiction of the state rail authority except as may be authorized by the authority by rule promulgated pursuant to the provisions of article three, chapter twenty-nine-a of this code;
  (6) On any road, trail or any other lands within the boundaries of land owned by a non-profit or not-for-profit entity used for public recreational purposes except as authorized by the governing board of such entity;
  (7) Within the boundaries of any municipal or county owned or operated recreational area except as may be authorized by the county commission of said county;
  (8) Unless operators and passengers, if any, under the age of eighteen are wearing protective helmets that meet the current performance specification established by the American National Standards Institute Standard, Z 90.1, the United States Department of Transportation Federal Motor Vehicle Safety Standard No. 218 and any passenger under the age of eighteen riding with an operator under the age of eighteen rides astraddle the vehicle with both feet, where applicable, on the vehicle's running boards;
  (9) With a passenger unless the operator is at least seventeen years of age;
  (10) Anytime from sunset to sunrise without an illuminated headlight or lights and tail lights;
  (11) Without United States Forest Service qualified spark arrester and a manufacturer- installed or equivalent muffler in proper working order and properly connected to the vehicle's exhaust system;
  (12) Unless operating in compliance with the provisions of section three of this article; or
  (13) In a careless or reckless manner so as to endanger or cause injury or damage to any person or property.
  (b) Any person not exempted by the provisions of this article who violates the provisions of subdivisions (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12) or (13), subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars.
  (c) No provision of this section may be construed to prohibit a municipal, county or state law-enforcement officer from entering upon private lands while in active pursuit of an operator of an all-terrain vehicle who has violated a provision of this section if occurred in the officer's presence.
  (d) Notwithstanding any provision of this chapter to the contrary, an all-terrain vehicle may, for the sole purpose of getting from one trail, field or area of operation to another, be operated upon the shoulder or as close as possible to the edge of a road, street or highway, other than an interstate highway for a reasonable distance, if:
  (1) The vehicle is operated at speeds of twenty-five miles per hour or less; and
  (2) If operated at any time from sunset to sunrise, the all-terrain vehicle must be equipped with headlights and taillights which must be illuminated.
  (e) For purposes of subsection (d) of this section, the reasonable distance which may be traveled for the sole purpose of getting from one trail, field or area of operator to another upon the shoulder or as close as possible to the edge of a road, street or highway, other than an interstate highway, shall not exceed that distance as established for farm use vehicles and shall be set by the commissioner by rule.
  (f) Notwithstanding the provisions of this chapter to the contrary, a municipality, county or other political subdivision of the state may authorize the operation of all-terrain vehicles on certain paved roads, streets or highways which are marked with centerline pavement markings, other than interstate highways, to allow participation in parades, exhibitions and other special events, or for specified purposes, or in emergencies.
§17F-1-3. Safety training.
  (a) On and after the first day of July, two thousand three, the commissioner of the division of motor vehicles shall offer a free all-terrain vehicle rider safety training course, and may approve other free all-terrain vehicle rider safety training courses, to meet the reasonably anticipated needs of the public. The commissioner shall offer free safety training course materials free of charge to authorized dealers of all-terrain vehicles, the materials and courses to be provided by the authorized dealers free of charge to purchasers and potential purchasers.
  (b) The commissioner shall issue certificates of completion to persons who satisfactorily complete the requirements of an approved course. The commissioner may authorize a dealer of all- terrain vehicles to issue the certificates of completion so long as the dealer has provided a free rider safety training course free of charge, as authorized and approved by the division.
  (c) On and after the first day of July, two thousand three, a person under the age of eighteen may operate an all-terrain vehicle only by obtaining a certificate of completion of a vehicle rider training course as offered or approved by the commissioner; or a person aged eighteen or over may operate an all-terrain vehicle by possessing a valid driver's license.
  (d) The commissioner shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to facilitate the implementation of this article.
§17F-1-4. Local government authority to regulate.
  (a) Notwithstanding any provision of this code to the contrary, a municipality may regulate in any manner not inconsistent with the provisions of this chapter or prohibit, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the municipal corporate limits not regulated by the provisions of subdivision (3), (4), (5), (6) or (7) , subsection (a), section two of this article.
  (b) Notwithstanding any provision of this code to the contrary, the county commission of each county may regulate in any manner not inconsistent with the provisions of this chapter or prohibit, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the county but not within a municipality's corporate limits or regulated by the provisions of subdivision (3), (4), (5), (6) or (7), subsection (a), section two of this article.

§17F-1-5. All-terrain vehicle rental dealers required to provide safety equipment.

  Any person or entity renting or leasing all-terrain vehicles for recreational purposes must provide protective helmets as defined by the provisions of section forty-four, article fifteen, chapter seventeen-c of this code to all persons using such vehicles who are under the age of eighteen and offer protective helmets to all persons eighteen and older using the rented or leased vehicles: Provided, That for the provisions of this section to be applicable, the users of the all-terrain vehicle must be known to the person or entity providing the rented or leased vehicle.
§17F-1-6. Exemption for farm and commercial use.
  No entity, governmental or private, authorized by the provisions of this chapter to prohibit all-terrain vehicle use on lands under its authority may by rule, regulation, ordinance or other enactment preclude the use or operation of all-terrain vehicles used for lawful agricultural purposes consistent with the provisions of section two, article three, chapter seventeen-a of this code or all- terrain vehicles being used for lawful commercial purposes."
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B 2121 - "A Bill to amend the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new chapter, designated chapter seventeen-f, relating to regulation of all-terrain vehicles generally; definitions; establishing prohibited acts by the operator or rider of all-terrain vehicles; requiring spark arresters and mufflers on all-terrain vehicles; exception for farm or commercial use; requiring commissioner of division of motor vehicles to offer safety training to adults and minors; requiring minors to complete safety training to operate all-terrain vehicles after a date certain; establishing effective dates clarifying that adults must possess a valid driver's license to operate all-terrain vehicles; granting authority over all-terrain vehicle use in certain areas to governing or operating bodies thereof; giving municipalities and counties authority to regulate use of all-terrain vehicles within their boundaries; exceptions; requiring helmets be worn by minors; requiring all-terrain vehicle rental dealers to provide or offer helmets; offenses; and penalties."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:
  On page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"CHAPTER 17F. ALL-TERRAIN VEHICLES.
ARTICLE 1. THE ALL-TERRAIN VEHICLE SAFETY ACT.
§17F-1-1. Acts prohibited by operator.
  (a) No all-terrain vehicle may be operated in this state:
  (1) Unless riders under the age of eighteen are wearing protective helmets that meet the current performance specifications established by the American National Standards Institute Standard, Z 90.1, the United States Department of Transportation Federal Motor Vehicle Safety Standard No. 218 or Snell Safety Standards for Protective Headgear for Vehicle Users;
  (2) Anytime from sunset to sunrise without an illuminated headlight or lights and tail lights; or
  (3) Without a manufacturer-installed or equivalent spark arrester and a manufacturer- installed or equivalent muffler in proper working order and properly connected to the vehicle's exhaust system.
  (b) Any person who violates the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars.
§17F-1-2. Safety training.
  (a) On and after the first day of July, two thousand three, the commissioner of motor vehicles shall offer a free all-terrain vehicle rider safety training course, and may approve other free all- terrain vehicle rider safety training courses, to meet the reasonably anticipated needs of the public. The commissioner shall offer free safety training course materials to authorized dealers of all-terrain vehicles, for use by purchasers and potential purchasers free of charge.
  (b) The commissioner shall issue certificates of completion to persons who satisfactorily complete the requirements of an approved course. The commissioner may authorize a dealer of all- terrain vehicles to issue the certificates of completion.
  (c) On and after the first day of July, two thousand three, no person under the age of eighteen may operate an all-terrain vehicle without a certificate of completion of a vehicle rider training course as offered or approved by the commissioner.

§17F-1-3. All-terrain vehicle rental dealers required to provide safety equipment.

  Any person or entity renting or leasing all-terrain vehicles for recreational purposes must provide protective helmets as defined by the provisions of subdivision three, subsection a, section one of this article, to all persons using such vehicles who are under the age of eighteen and offer protective helmets to all persons eighteen and older using the rented or leased vehicles: Provided, That for the provisions of this section to be applicable, the age and identity of the users of the all- terrain vehicle must be disclosed to the person or entity providing the rented or leased vehicle.
§17F-1-4. Local government authority to regulate.
  (a) A municipality may regulate in any manner, by lawfully enacted ordinance, the operation of all-terrain vehicles upon any street, road or avenue within the municipal corporate limits.
  (b) Homeowner associations may petition the county commission of the county in which the area regulated by the homeowner association is located for an ordinance to regulate or prohibit the operation of all-terrain vehicles upon any street, road or avenue within the area regulated by the homeowner association. County commissions are hereby authorized, upon receipt of a petition authorized by the provisions of this section, to enact an ordinance regulating or prohibiting the operation of all-terrain vehicles.
§17F-1-5. Private property exemption.
  The provisions of this article do not apply if the all-terrain vehicle is operated exclusively on lands owned or leased by the vehicle owner or on private lands of others with permission."   The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 614), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
  Absent And Not Voting: Azinger, Coleman and Shelton.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2121) passed.
  On motion of Delegate Staton, the title of the bill was amended to read as follows:
  Com. Sub. for H. B. 2121 - "A Bill to amend the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new chapter, designated chapter seventeen-f, relating to the regulation of all-terrain vehicles; prohibiting riders under the age of eighteen without a helmet; prohibiting operation without certain equipment; providing for criminal penalties for violations; requiring safety training; requiring rental dealers to provide safety equipment; providing for regulation by local government authority; and providing for private property exemption."
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 615), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
  Absent And Not Voting: Azinger, Coleman and Shelton.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2121) takes effect from its passage.
Conference Committee Reports
  Delegate Cann was recognized and explained the report of the Committee of Conference on matters of disagreement between the two houses, as to
  Com. Sub. for H. B. 2120, Relating to workers' compensation generally.
  In accordance with the practice of the House, the Conference Report was then formally submitted as follows:
  Your Committee of Conference on the disagreeing votes of the two houses on the amendment of the Senate to Com. Sub. for H. B. 2120, having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
  That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause and inserting new language, and agree to the same as follows:
  That sections one, two, three, four, five, six and seven, article three, chapter twenty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section five-b, article two, chapter twenty-three of said code be repealed; that section seven, article four-a of said chapter be repealed; that section fourteen, article five of said chapter be repealed; that section thirty-three-d, article three, chapter five-a of said code be amended and reenacted; that sections four and five, article three, chapter five-b of said code be amended and reenacted; that section one, article two, chapter five-f of said code be amended and reenacted; that section seven, article twelve, chapter eleven of said code be amended and reenacted; that section four, article one-a, chapter twelve of said code be amended and reenacted; that section six, article six of said chapter be amended and reenacted; that section ten, article two, chapter fifteen of said code be amended and reenacted; that section fifteen, article one, chapter sixteen of said code be amended and reenacted; that section three, article twenty-nine-d of said chapter be amended and reenacted; that section three, article thirty-six of said chapter be amended and reenacted; that section twenty-six, article nine-a, chapter eighteen of said code be amended and reenacted; that section twelve-a, article ten-a of said chapter be amended and reenacted; that section two, article ten-k of said chapter be amended and reenacted; that section three, article three-a, chapter twenty-one of said code be amended and reenacted; that section four, article one, chapter twenty-one-a of said code be amended and reenacted; that sections six, six-c and thirteen, article two of said chapter be amended and reenacted; that section eleven, article ten of said chapter be amended and reenacted; that section eight, article three, chapter twenty-two of said code be amended and reenacted; that sections one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, seventeen and eighteen, article one, chapter twenty-three of said code be amended and reenacted; that said article be further amended by adding thereto seven new sections, designated sections one-a, one-b, one-c, one-d, one- e, one-f and four-a; that sections one, one-c, one-d, two, three, four, five, five-a, five-c, five-d, six, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen, article two of said chapter be amended and reenacted; that section one, article two-a of said chapter be amended and reenacted; that sections one, two and three, article two-b of said chapter be amended and reenacted; that sections one, one-a, two, three and five, article three of said chapter be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections one-b and six; that sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-b, three-c, four, six, six-a, six-b, six-d, seven, seven-a, seven-b, eight, eight-a, eight-b, eight-c, nine, nine-b, ten, eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a, seventeen, eighteen, twenty, twenty-two, twenty-three, twenty-four and twenty-five, article four of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section one-g; that sections one, three, five, six and eight, article four-a of said chapter be amended and reenacted; that sections two, five, six, and seven, article four-b of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section eight-b; that sections two, three, four and five, article four-c of said chapter be amended and reenacted; that sections one, two, three, four, five, six, seven, eight, nine, seventeen and eighteen, article five of said chapter be amended and reenacted; that said article be further amended by adding thereto two new sections, designated sections ten-a and fifteen-a; that section two, article eight, chapter twenty-six of said code be amended and reenacted; that sections one hundred twenty-five and one hundred thirty-one, article eighteen, chapter forty-eight of said code be amended and reenacted; that chapter fifty-one be amended by adding thereto a new article, designated article one-b; and that section twenty-four-g, article three, chapter sixty-one of said code be amended and reenacted, all to read as follows:

CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 3. PURCHASING DIVISION.
§5A-3-33d. Grounds for debarment.
  Grounds for debarment are:
  ~~(a)~~(1) Conviction of an offense involving fraud or a felony offense in connection with obtaining or attempting to obtain a public contract or subcontract;
  ~~(b)~~ (2) Conviction of any federal or state antitrust statute relating to the submission of offers;
  ~~(c)~~ (3) Conviction of an offense involving embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property in connection with the performance of a contract;
  ~~(d)~~ (4) Conviction of a felony offense demonstrating a lack of business integrity or business honesty that affects the present responsibility of the vendor or subcontractor;
  ~~(e)~~ (5) Default on obligations owed to the state, including, but not limited to, obligations under the West Virginia workers' compensation act, the West Virginia unemployment compensation act and West Virginia state tax and revenue laws. For purposes of this subsection, a vendor is in default when, after due notice, the vendor fails to submit a required payment, interest thereon or penalty, and has not entered into a repayment agreement with the appropriate agency of the state or has entered into a repayment agreement but does not remain in compliance with its obligations under the repayment agreement. In the case of a vendor granted protection by order of a federal bankruptcy court or a vendor granted an exemption under any rule of the bureau of employment programs or the workers' compensation commission, the director may waive debarment under section thirty-three-f of this article: Provided, That in no event may debarment be waived with respect to any vendor who has not paid all current state obligations for at least the four most recent calendar quarters, excluding the current calendar quarter, or with respect to any vendor who is in default on a repayment agreement with an agency of the state;
  ~~(f)~~ (6) The vendor is not in good standing with a licensing board, in that the vendor is not licensed when licensure is required by the law of this state, or the vendor has been found to be in violation of an applicable licensing law after notice, opportunity to be heard and other due process required by law; and
__~~(g)~~ (7) Violation of the terms of a public contract or subcontract for:
  ~~(1)~~ (A) Willful failure to substantially perform in accordance with the terms of one or more public contracts;
  ~~(2)~~ (B) Performance in violation of standards established by law or generally accepted standards of the trade or profession amounting to intentionally deficient or grossly negligent performance on one or more public contracts;
  ~~(3)~~ (C) Use of substandard materials on one or more public contracts or defects in construction in one or more public construction projects amounting to intentionally deficient or grossly negligent performance, even if discovery of the defect is subsequent to acceptance of a construction project and expiration of any warranty thereunder;
  ~~(4)~~ (D) A repeated pattern or practice of failure to perform so serious and compelling as to justify debarment; or
  ~~(5)~~ (E) Any other cause of a serious and compelling nature amounting to knowing and willful misconduct of the vendor that demonstrates a wanton indifference to the interests of the public and that caused, or that had a substantial likelihood of causing, serious harm to the public.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION SHARED.
§5B-3-4. Commission review of procedural rules, interpretive rules and existing legislative rules.
  (a) The joint commission on economic development may review any procedural ~~rules~~ rule, interpretive ~~rules~~ rule or existing legislative ~~rules~~ rule and make recommendations concerning ~~such~~ the rules to the Legislature.
  (b) The development office and the tourism commission established pursuant to article two of this chapter, the economic development authority established pursuant to article fifteen, chapter thirty-one of this code, the bureau of employment programs established pursuant to article four, chapter twenty-one-a of this code, the workers' compensation commission established pursuant to article one, chapter twenty-three of this code, the workforce investment commission established pursuant to article two-c of this chapter, West Virginia jobs investment trust, regional planning and development councils, West Virginia rural development council, governor's office of technology and West Virginia clearinghouse for workforce education shall each file a copy of its legislative rules with the commission as provided for ~~herein~~ in this section. Each agency that proposes legislative rules in accordance to the provisions of article three, three-a or three-b, chapter twenty- nine-a of this code relating to economic development or workforce development shall file the rules with the joint commission at the time the rules are filed with the secretary of state prior to the public comment period or public hearing required in said chapter.
§5B-3-5. Joint commission on economic development studies.
  (a) The joint commission on economic development shall study the following:
  (1) The feasibility of establishing common regional configurations for such purposes as local workforce investment areas, regional educational service agencies and for all other purposes the commission considers feasible. The study should review the existing levels of cooperation between state and local economic developers; complete an analysis of possible regional configurations and outline examples of other successful regional systems or networks found throughout the world. If the study determines that the common regional configurations are feasible, the commission shall recommend legislation establishing common regional designations for all purposes the commission considers feasible. In making the designation of regional areas, the study shall take into consideration, but not be limited to, the following:
  (A) Geographic areas served by local educational agencies and intermediate educational agencies;
  (B) Geographic areas served by post-secondary educational institutions and area vocational education schools;
  (C) The extent to which ~~such~~ the local areas are consistent with labor market areas;
  (D) The distance that individuals will need to travel to receive services provided in ~~such~~ the local areas; and
  (E) The resources of ~~such~~ the local areas that are available to effectively administer the activities or programs;
  (2) The effectiveness and fiscal impact of incentives for attracting and growing businesses, especially technology-intensive companies; and
  (3) A comprehensive review of West Virginia's existing economic and community development resources and the recommendation of an organizational structure, including, but not limited to, the reorganization of the bureau of commerce and the development office that would allow the state to successfully compete in the new global economy.
  (b) In order to effectuate in the most cost-effective and efficient manner the studies required in this article, it is necessary for the joint commission to assemble and compile a tremendous amount of information. The development office will assist the joint commission in the collection and analysis of this information. The tourism commission established pursuant to article two of this chapter, the economic development authority established pursuant to article fifteen, chapter thirty-one of this code, the bureau of employment programs established pursuant to article four, chapter twenty-one-a of this code, the workers' compensation commission established pursuant to article one, chapter twenty-three of this code, the workforce investment commission established pursuant to article two-c of this chapter, West Virginia jobs investment trust, regional planning and development councils, West Virginia rural development council, governor's office of technology and West Virginia clearinghouse for workforce education all shall provide a copy of the agency's annual report as submitted to the governor in accordance with the requirements set forth in section twenty, article one, chapter five of this code to the West Virginia development office. The development office shall review, analyze and summarize the data contained in the reports, including its own annual report, and annually submit its findings to the joint commission on or before the thirty-first day of December.
  (c) The legislative auditor shall provide to the joint commission a copy of any and all reports on agencies listed in subsection (b) of this section, which are required under article ten, chapter four of this code.
  (d) The joint commission shall complete the studies set forth in this section and any other studies it the joint commission determines to undertake prior to the first day of December of each year and may make recommendations, including recommended legislation for introduction during the regular session of the Legislature.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
  (a) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of administration:
  (1) Building commission provided for in article six, chapter five of this code;
  (2) Public employees insurance agency and public employees insurance agency advisory board provided for in article sixteen, chapter five of this code;
  (3) Governor's mansion advisory committee provided for in article five, chapter five-a of this code;
  (4) Commission on uniform state laws provided for in article one-a, chapter twenty-nine of this code;
  (5) Education and state employees grievance board provided for in article twenty-nine, chapter eighteen of this code and article six-a, chapter twenty-nine of this code;
  (6) Board of risk and insurance management provided for in article twelve, chapter twenty- nine of this code;
  (7) Boundary commission provided for in article twenty-three, chapter twenty-nine of this code;
  (8) Public defender services provided for in article twenty-one, chapter twenty-nine of this code;
  (9) Division of personnel provided for in article six, chapter twenty-nine of this code;
  (10) The West Virginia ethics commission provided for in article two, chapter six-b of this code; and
  (11) Consolidated public retirement board provided for in article ten-d, chapter five of this code.
  (b) The department of commerce, labor and environmental resources and the office of secretary of the department of commerce, labor and environmental resources are abolished. For purposes of administrative support and liaison with the office of the governor, the following agencies and boards, including all allied, advisory and affiliated entities, are grouped under two bureaus and one commission as follows:
  (1) Bureau of commerce;
  (A) Division of labor provided for in article one, chapter twenty-one of this code, which includes:
  (i) Occupational safety and health review commission provided for in article three-a, chapter twenty-one of this code; and
  (ii) Board of manufactured housing construction and safety provided for in article nine, chapter twenty-one of this code;
  (B) Office of miners' health, safety and training provided for in article one, chapter twenty- two-a of this code. The following boards are transferred to the office of miners' health, safety and training for purposes of administrative support and liaison with the office of the governor:
  (i) Board of coal mine health and safety and coal mine safety and technical review committee provided for in article six, chapter twenty-two-a of this code;
  (ii) Board of miner training, education and certification provided for in article seven, chapter twenty-two-a of this code; and
  (iii) Mine inspectors' examining board provided for in article nine, chapter twenty-two-a of this code;
  (C) The West Virginia development office provided for in article two, chapter five-b of this code, which includes:
  (i) Economic development authority provided for in article fifteen, chapter thirty-one of this code; and
  (ii) Tourism commission provided for in article two, chapter five-b of this code and the office of the tourism commissioner;
  (D) Division of natural resources and natural resources commission provided for in article one, chapter twenty of this code. The Blennerhassett historical state park provided for in article eight, chapter twenty-nine of this code is under the division of natural resources;
  (E) Division of forestry provided for in article one-a, chapter nineteen of this code;
  (F) Geological and economic survey provided for in article two, chapter twenty-nine of this code;
  (G) Water development authority and board provided for in article one, chapter twenty-two-c of this code;
  (2) Bureau of employment programs provided for in article one, chapter twenty-one-a of this code; and
__(3) Workers' compensation commission provided for in article one, chapter twenty-three of this code.
  (c) Bureau of environment is abolished and the following agencies and boards, including all allied, advisory and affiliated entities, are transferred to the department of environmental protection for purposes of administrative support and liaison with the office of the governor:
  (1) Air quality board provided for in article two, chapter twenty-two-b of this code;
  (2) Solid waste management board provided for in article three, chapter twenty-two-c of this code;
  (3) Environmental quality board, or its successor board, provided for in article three, chapter twenty-two-b of this code;
  (4) Surface mine board provided for in article four, chapter twenty-two-b of this code;
  (5) Oil and gas inspectors' examining board provided for in article seven, chapter twenty- two-c of this code;
  (6) Shallow gas well review board provided for in article eight, chapter twenty-two-c of this code; and
  (7) Oil and gas conservation commission provided for in article nine, chapter twenty-two-c of this code.
  (d) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of education and the arts:
  (1) Library commission provided for in article one, chapter ten of this code;
  (2) Educational broadcasting authority provided for in article five, chapter ten of this code;
  (3) Joint commission for vocational-technical-occupational education provided for in article three-a, chapter eighteen-b of this code;
  (4) Division of culture and history provided for in article one, chapter twenty-nine of this code; and
  (5) Division of rehabilitation services provided for in section two, article ten-a, chapter eighteen of this code.
  (e) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of health and human resources:
  (1) Human rights commission provided for in article eleven, chapter five of this code;
  (2) Division of human services provided for in article two, chapter nine of this code;
  (3) Bureau for public health provided for in article one, chapter sixteen of this code;
  (4) Office of emergency medical services and advisory council thereto provided for in article four-c, chapter sixteen of this code;
  (5) Health care cost review authority provided for in article twenty-nine-b, chapter sixteen of this code;
  (6) Commission on mental retardation provided for in article fifteen, chapter twenty-nine of this code;
  (7) Women's commission provided for in article twenty, chapter twenty-nine of this code; and
  (8) The child support enforcement division provided for in chapter forty-eight of this code.
  (f) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of military affairs and public safety:
  (1) Adjutant general's department provided for in article one-a, chapter fifteen of this code;
  (2) Armory board provided for in article six, chapter fifteen of this code;
  (3) Military awards board provided for in article one-g, chapter fifteen of this code;
  (4) West Virginia state police provided for in article two, chapter fifteen of this code;
  (5) Office of emergency services and disaster recovery board provided for in article five, chapter fifteen of this code and emergency response commission provided for in article five-a of said chapter;
  (6) Sheriffs' bureau provided for in article eight, chapter fifteen of this code;
  (7) Division of corrections provided for in chapter twenty-five of this code;
  (8) Fire commission provided for in article three, chapter twenty-nine of this code;
  (9) Regional jail and correctional facility authority provided for in article twenty, chapter thirty-one of this code;
  (10) Board of probation and parole provided for in article twelve, chapter sixty-two of this code; and
  (11) Division of veterans' affairs and veterans' council provided for in article one, chapter nine-a of this code.
  (g) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of tax and revenue:
  (1) Tax division provided for in article one, chapter eleven of this code;
  (2) Racing commission provided for in article twenty-three, chapter nineteen of this code;
  (3) Lottery commission and position of lottery director provided for in article twenty-two, chapter twenty-nine of this code;
  (4) Agency of insurance commissioner provided for in article two, chapter thirty-three of this code;
  (5) Office of alcohol beverage control commissioner provided for in article sixteen, chapter eleven of this code and article two, chapter sixty of this code;
  (6) Board of banking and financial institutions provided for in article three, chapter thirty- one-a of this code;
  (7) Lending and credit rate board provided for in chapter forty-seven-a of this code; and
  (8) Division of banking provided for in article two, chapter thirty-one-a of this code.
  (h) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of transportation:
  (1) Division of highways provided for in article two-a, chapter seventeen of this code;
  (2) Parkways, economic development and tourism authority provided for in article sixteen-a, chapter seventeen of this code;
  (3) Division of motor vehicles provided for in article two, chapter seventeen-a of this code;
  (4) Driver's licensing advisory board provided for in article two, chapter seventeen-b of this code;
  (5) Aeronautics commission provided for in article two-a, chapter twenty-nine of this code;
  (6) State rail authority provided for in article eighteen, chapter twenty-nine of this code; and
  (7) Port authority provided for in article sixteen-b, chapter seventeen of this code.
  (i) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence of the position of administrator and of the agency and the powers, authority and duties of each administrator and agency are not affected by the enactment of this chapter.
  (j) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of ~~such~~ the boards are not affected by the enactment of this chapter and all boards which are appellate bodies or were otherwise established to be independent decisionmakers will not have their appellate or independent decision-making status affected by the enactment of this chapter.
  (k) Any department previously transferred to and incorporated in a department created in section two, article one of this chapter by prior enactment of this section in chapter three, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-nine, and subsequent amendments, means a division of the appropriate department. Wherever reference is made to any department transferred to and incorporated in a department created in section two, article one of this chapter, the reference means a division of the appropriate department, and any reference to a division of a department so transferred and incorporated means a section of the appropriate division of the department.
  (l) When an agency, board or commission is transferred under a bureau or agency other than a department headed by a secretary pursuant to this section, that transfer is solely for purposes of administrative support and liaison with the office of the governor, a department secretary or a bureau. The bureaus created by the Legislature upon the abolishment of the department of commerce, labor and environmental resources in the year one thousand nine hundred ninety-four will be headed by a commissioner or other statutory officer of an agency within that bureau. Nothing in this section extends the powers of department secretaries under section two of this article to any person other than a department secretary and nothing limits or abridges the statutory powers and duties of statutory commissioners or officers pursuant to this code.

CHAPTER 11. TAXATION.

ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-7. Display of registration certificate; injunction; public information, reciprocal exchange of information.
  Any person to whom a certificate of registration ~~shall be~~ has been issued under the provisions of section four of this article shall keep ~~such~~ the certificate posted in a conspicuous position in the place where the privilege of ~~such~~ the business is exercised. ~~Such~~ The certificate of registration shall be produced for inspection whenever required by the tax commissioner or by any law-enforcement officers of this state, county or municipality ~~wherein~~ in which the privileges to conduct business are exercised.
  No injunction shall issue from any court in the state enjoining the collection of any business registration certificate tax required ~~herein~~ in this section; and any person claiming that any business certificate is not due, for any reason, shall pay the ~~same~~ tax under protest and petition the tax commissioner for a refund in accordance with the provisions of section fourteen, article ten of this chapter.
  If any person engaging in or prosecuting any business, or trade, contrary to any other provisions of this article, whether without obtaining a business certificate therefor before commencing the same, or by continuing the same after the termination of the effective period of ~~any such~~ the business certificate, the circuit court, or the judge thereof in vacation, of the county in which ~~such~~ the violation occurred shall, upon proper application in the name of the state, and after ten days' written notice thereof to such person, grant an injunction prohibiting ~~such~~ that person from continuing ~~such~~ the business, activity or trade until he or she has fully complied with the provisions of this article. The remedy provided in this section ~~shall be~~ is in addition to all other penalties and remedies provided by law.
  The tax commissioner shall make available, when requested, information as to whether a person is registered to do business in the state of West Virginia.
  The tax commissioner shall deliver to the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission the information contained in the business franchise registration certificate when this information is used to implement and administer a single point of registration program for persons engaging in any business activity in the state of West Virginia. The single point of registration program shall provide that, once an individual has received a business franchise registration certificate, the tax commissioner shall notify the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission of the names, addresses and other identifying information of that individual or entity. Upon receiving this information the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission shall contact all businesses receiving a business franchise registration certificate and provide all necessary forms and paperwork to register a business within the bureau and commission; pursuant to subsection (b), section six-b, article two, chapter twenty-one-a of this code and subsection (c), section two, article two, chapter twenty-three of this code.
  Notwithstanding the provisions of section five, article ten of this chapter, the tax commissioner may enter into a reciprocal agreement with the governor's office of community and industrial development and other departments or agencies of this state for the exchange of information contained in the application for a business franchise registration certificate filed under section four of this article when the purpose for the exchange is to implement and administer a single-point of registration program for persons engaging in business in this state. ~~Such~~ The other departments and agencies ~~shall have authority to~~ may enter into a reciprocal exchange agreement for this purpose notwithstanding any provision of this code to the contrary.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1A. WEST VIRGINIA SMALL BUSINESS LINKED DEPOSIT PROGRAM.
§12-1A-4. Applications for loan priority; loan package; counseling.
  (a) An eligible lending institution that desires to participate in the linked deposit program shall accept and review loan applications from eligible small businesses that have been prepared with the advice of the small business development center. The lending institution shall apply all usual lending standards to determine the credit worthiness of each eligible small business and whether the loan application meets the criteria established in this article.
  (b) An eligible small business shall certify on its loan application that: (1) The small business is in good standing with the state tax division, the workers' compensation commission and the bureau of employment programs as of the date of the application; (2) the linked deposit loan will be used to create new jobs or preserve existing jobs and employment opportunities; and (3) the linked deposit loan shall not be used to refinance an existing debt.
  (c) In considering which eligible small businesses should receive linked deposit loans, the eligible lending institution shall give priority to the economic needs of the area in which the business is located, the number of jobs to be created and preserved by the receipt of the loan, the reasonable ability of the small business to repay the loan and other factors considered appropriate by the eligible financial institution.
  (d) A small business receiving a linked deposit loan shall receive supervision and counseling provided by the small business development center when applying for the loan. The services available from the small business development center include eligibility certification, business planning, quarterly financial statement review and loan application assistance. The state tax division and the bureau of employment programs and worker's compensation commission shall provide the small business development center with information as to the standing of each small business loan applicant. The small business development center shall include these certifications with the loan application.
  (e) The eligible financial institution shall forward to the treasurer a linked deposit loan package in the form and manner prescribed by the treasurer. The treasurer shall forward notice of approval of the loan to the small business development center at the same time it is furnished to the eligible financial institution.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.
§12-6-6. Annual audits; reports and information to constitutional and legislative officers, council of finance and administration, consolidated public retirement board, workers' compensation fund and coal-workers' pneumoconiosis fund; statements and reports open for inspection.
  (a) The board shall cause an annual financial and compliance audit of the assets managed by the board to be made by a certified public accounting firm which has a minimum staff of ten certified public accountants and which is a member of the American institute of certified public accountants and, if doing business in West Virginia, a member of the West Virginia society of certified public accountants. The financial and compliance audit shall be made of the board's books, accounts and records with respect to its receipts, disbursements, investments, contracts and all other matters relating to its financial operations. Copies of the audit report shall be furnished to the governor, state treasurer, state auditor, president of the Senate, speaker of the House of Delegates, council of finance and administration and consolidated public retirement board.
  (b) The board shall produce monthly financial statements for the assets managed by the board and cause them to be delivered to each member of the board and the executive secretary of the consolidated public retirement board as established in sections one and two, article ten-d, chapter five of this code and to the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission as administrator of the workers' compensation fund and coal-workers' pneumoconiosis fund as established in section ~~one~~ one-b, article one, chapter twenty-three of this code and section one, article three of said chapter and section seven, article four- b of said chapter.
  (c) The board shall deliver in each quarter to the council of finance and administration and the consolidated public retirement board a report detailing the investment performance of the 401(a) plans.
  (d) The board shall cause an annual audit of the reported returns of the assets managed by the board to be made by an investment consulting or a certified public accounting firm meeting the criteria set out in subsection (a) of this section. The board shall furnish copies of the audit report to the governor, state treasurer, state auditor, president of the Senate, speaker of the House of Delegates, council of finance and administration and consolidated public retirement board.
  (e) The board shall provide any other information requested in writing by the council of finance and administration.
  (f) All statements and reports with respect to participant plans required in this section shall be available for inspection by the members and beneficiaries and designated representatives of the participant plans.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.
§15-2-10. Uniforms; authorized equipment, weapons and supplies; local headquarters; quarters for members; life insurance; medical and hospital fees for injuries and illnesses of members incurred in line of duty.
  (a) The standard uniform to be used by the West Virginia state police after the effective date of this article shall be as follows: Forestry green blouse with West Virginia state police emblem on sleeve; black shoulder strap, one-inch black stripe around sleeve, four inches from end of sleeve; forestry green breeches with one-inch black stripe down the side; trousers (slacks) with one-inch black stripe down the side for officers and clerks regularly enlisted in the state police; forestry green shirts with West Virginia state police emblem on sleeve; black shoulder straps; forestry green mackinaw with West Virginia state police emblem on sleeve; black shoulder straps; one-inch black stripe around sleeve four inches from end of sleeve; campaign hat of olive drab color; black Sam Browne belt with holster; black leggings and shoes; the officer's uniform will have one and one-quarter inch black stripe around the sleeve of blouse and mackinaw four inches from end of sleeve circumposed with one-half inch gold braid, also black collars on blouse, with two silver shoulder bars for captains, one silver shoulder bar for first lieutenant, one gold shoulder bar for second lieutenant. For noncommissioned officers the uniform blouse and shirt will have thereon black chevrons of the appropriate rank.
  (b) The superintendent shall establish the weapons and enforcement equipment which ~~shall be~~ are authorized for use by members of the state police and shall provide for periodic inspection of ~~such~~ the weapons and equipment. He or she shall provide for the discipline of members using other than authorized weapons and enforcement equipment.
  (c) The superintendent shall provide the members of the state police with suitable arms and weapons and, when he ~~deems~~ or she considers it necessary, with suitably equipped automobiles, motorcycles, watercraft, airplanes and other means of conveyance to be used by the West Virginia state police, the governor, and other officers and executives in the discretion of the governor, in times of flood, disaster and other emergencies, for traffic study and control, criminal and safety work, and in other matters of official business. He or she shall also provide the standard uniforms for all members of the state police, for officers, noncommissioned officers and troopers ~~herein~~ provided for in this section. All uniforms and all arms, weapons and other property furnished the members of the state police by the state of West Virginia ~~shall be~~ are and remain the property of the state.
  (d) The superintendent ~~is authorized to~~ may purchase and maintain on behalf of members group life insurance not to exceed the amount of five thousand dollars on behalf of each member.
  (e) The superintendent ~~is authorized to~~ may contract and furnish at state police expense medical and hospital services for treatment of illness or injury of a member which shall be determined by the superintendent to have been incurred by ~~such~~ the member while engaged in the performance of duty and from causes beyond control of ~~such~~ the members. Notwithstanding any other provision of this code, the superintendent ~~shall have~~ has the right of subrogation in any civil action or settlement brought by or on behalf of a member in relation to any act by another which results in the illness, injury or death of a member. To this end, the superintendent ~~is hereby authorized to~~ may initiate ~~such~~ an action on behalf of the state police in order to recover the costs incurred in providing medical and hospital services for the treatment of a member resulting from injury or illness originating in the performance of official duties. This subsection shall not affect the power of a court to apply ordinary equitable defenses to the right of subrogation.
  The superintendent ~~is further empowered to~~ may also consult with the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission in an effort to defray the cost of medical and hospital services. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule in use by the ~~bureau of employment programs, workers' compensation division~~ workers' compensation commission.
  Third-party reimbursements received by the superintendent after the expiration of the fiscal year in which the injury, illness or death occurred will be deposited to a nonexpiring special revenue account. Funds deposited to this account may be used solely for defraying the costs of medical or hospital services rendered to any sworn members as a direct result of an illness, injury or death resulting from the performance of official duties.
  (f) The superintendent shall establish and maintain local headquarters at ~~such~~ those places in West Virginia as that are in his or her judgment suitable and proper to render the West Virginia state police most efficient for the purpose of preserving the peace, protecting property, preventing crime, apprehending criminals and carrying into effect all other provisions of this article. The superintendent shall provide, by acquisition, lease or otherwise, for local headquarters, for housing and quarters for the accommodation of the members of the West Virginia state police, and for any other facilities necessary or useful for the effective operation of the West Virginia state police and shall provide all equipment and supplies necessary for the members of the West Virginia state police to perform their duties.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-15. Investigations and hearings; power to administer oaths, subpoena witnesses, etc.; use of information and material acquired.
  (a) The secretary, the commissioner, any officer or employee of the department designated by the secretary, or any other individual designated by the secretary may hold investigations, inquiries and hearings concerning matters covered by the laws of this state pertaining to public health and within the authority and the rules and orders of the secretary. Hearings shall be open to the public and shall be held upon any call or notice considered advisable by the secretary.
  (b) Each individual designated to hold any inquiry, investigation or hearing ~~shall have the power to~~ may administer oaths and affirmations, certify to all official acts, issue subpoenas and order the attendance and testimony of witnesses in the production of papers, books and documents. In case of the failure of any person to comply with any subpoena or order issued under the authority of this section, the secretary or his or her authorized representative may invoke the aid of any circuit court of this state. The court may thereupon order that person to comply with the requirements of the subpoena order or to give evidence as to the matter in question. Failure to obey the order of the court may be punished by the court as a contempt of court.
  (c) Subject to the provisions of subsections (a) and (b) of this section, the secretary may in his or her discretion make available to appropriate federal, state and municipal agencies information and material developed in the course of its investigation and hearings: Provided, That information obtained from studies or from any investigation made or hearing held pursuant to the provisions of this article may not be admissible in evidence in any action at law to recover damages for personal injury or in any action under the workers' compensation act, but the information, if available, shall be furnished upon request to the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission for the sole purpose of adjusting claims presented to the ~~commissioner~~ commission.

ARTICLE 29D. STATE HEALTH CARE.

§16-29D-3. Agencies to cooperate and to provide plan; contents of plan; reports to Legislature; late payments by state agencies and interest thereon.
  (a) All departments and divisions of the state, including, but not limited to, the bureau of employment programs, the division of health and the division of human services within the department of health and human resources; the public employees insurance agency within the department of administration; the division of rehabilitation services; the workers' compensation commission; or ~~such~~ the other department or division as shall supervise or provide rehabilitation; and the university of West Virginia board of trustees, as the governing board for the state's medical schools, are authorized and directed to cooperate in order, among other things, to ensure the quality of the health care services delivered to the beneficiaries of ~~such~~ the departments and divisions and to ensure the containment of costs in the payment for ~~such~~ services.
  (b) It is expressly recognized that no other entity may interfere with the discretion and judgment given to the single state agency which administers the state's medicaid program. Thus, it is the intention of the Legislature that nothing contained in this article shall be interpreted, construed or applied to interfere with the powers and actions of the single state agency which, in keeping with applicable federal law, shall administer the state's medicaid program as it perceives to be in the best interest of that program and its beneficiaries.
  (c) ~~Such~~ The departments and divisions shall develop a plan or plans to ensure that a reasonable and appropriate level of health care is provided to the beneficiaries of the various programs including the public employees insurance agency and the workers' compensation fund, the division of rehabilitation services and, to the extent permissible, the state medicaid program. The plan or plans may include, among other things, and the departments and divisions are ~~hereby authorized to~~ may enter into:
  (1) Utilization review and quality assurance programs;
  (2) The establishment of a schedule or schedules of the maximum reasonable amounts to be paid to health care providers for the delivery of health care services covered by the plan or plans. ~~Such a~~ The schedule or schedules may be either prospective in nature or cost reimbursement in nature, or a mixture of both: Provided, That any payment methods or schedules for institutions which provide inpatient care shall be institution-specific and shall, at a minimum, take into account a disproportionate share of medicaid, charity care and medical education: Provided, however, That in no event may any rate set in this article for an institutional health care provider be greater than ~~such~~ the institution's current rate established and approved by the health care cost review authority pursuant to article twenty-nine-b of this chapter;
  (3) Provisions for making payments in advance of the receipt of health care services by a beneficiary, or in advance of the receipt of specific charges for ~~such~~ the services, or both;
  (4) Provisions for the receipt or payment of charges by electronic transfers;
  (5) Arrangements, including contracts, with preferred provider organizations; and
  (6) Arrangements, including contracts, with particular health care providers to deliver health care services to the beneficiaries of the programs of the departments and divisions at agreed-upon rates in exchange for controlled access to the beneficiary populations.
  (d) The director of the public employees insurance agency shall contract with an independent actuarial company for a review every four years of the claims experience of all governmental entities whose employees participate in the public employees insurance agency program, including, but not limited to, all branches of state government, all state departments or agencies (including those receiving funds from the federal government or a federal agency), all county and municipal governments or any other similar entities for the purpose of determining the cost of providing coverage under the program, including administrative cost, to each ~~such~~ governmental entity.
  (e) Nothing in this section shall be construed to give or reserve to the Legislature any further or greater power or jurisdiction over the operations or programs of the various departments and divisions affected by this article than that already possessed by the Legislature in the absence of this article.
  (f) For the purchase of health care or health care services by a health care provider participating in a plan under this section on or after the first day of September, one thousand nine hundred eighty-nine, by the public employees insurance agency, the division of rehabilitation services and the ~~division of workers' compensation~~ workers' compensation commission, a state check shall be issued in payment thereof within sixty-five days after a legitimate uncontested invoice is actually received by ~~such~~ the division, commission or agency. Any state check issued after sixty-five days shall include interest at the current rate, as determined by the state tax commissioner under the provisions of section seventeen-a, article ten, chapter eleven of this code.~~, which~~ The interest shall be calculated from the sixty-sixth day after ~~such~~ the invoice was actually received by the ~~division~~
commission or agency until the date on which the state check is mailed to the vendor.
ARTICLE 36. NEEDLESTICK INJURY PREVENTION.
§16-36-3. Needlestick injury prevention advisory committee.
  (a) There is established a needlestick injury prevention advisory committee to advise the director in the development of rules required under this article.
  (b) The committee shall meet at least four times a year for the initial two years after the effective date of this article and on the call of the director thereafter. The director shall serve as the chair and shall appoint thirteen members, one representing each of the following groups:
  (1) A representative of the health insurance industry;
  (2) The ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission, or his or her designee from the ~~division of workers' compensation~~;
  (3) Five nurses who work primarily providing direct patient care in a hospital or nursing home, at least one of which is employed in a state-operated facility;
  (4) A phlebotomist employed in a hospital or nursing home;
  (5) Two administrators of different hospitals operating within the state;
  (6) A director of nursing employed in a nursing home within the state;
  (7) A licensed physician practicing in the state; and
  (8) An administrator of a nursing home operating within the state.
  (c) Members of the committee serve without compensation. Each member shall be reimbursed for actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of official duties, in a manner consistent with guidelines of the travel management office of the department of administration.
  (d) A majority of all members constitutes a quorum for the transaction of all business. Members serve for two-year terms and may not serve for more than two consecutive terms.
CHAPTER 18. EDUCATION.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-26. Allowance for workers' compensation for unpaid student work-based learning.
  (a) The workers' compensation ~~division~~ commission shall create a classification and calculate a base premium tax rate for students participating in an unpaid work-based learning experience off school premises as a part of the school curriculum with employers other than the county board of education. The workers' compensation ~~division~~ commission shall report to the state department of education:
  (1) The amount of the base premium tax rate for the class; and
  (2) The amount of wages per student to be used to provide the minimum weekly benefits required by section six, article four, chapter twenty-three of this code.
  (b) The state department of education shall communicate the amount of the premium to the governor and Legislature by the first day of December of each year~~, beginning the first day of December, one thousand nine hundred ninety-nine~~.
  (c) The base premium tax rate reported to the state department of education shall be that which was published by the workers' compensation ~~division~~ commission prior to the first day of the immediately preceding July. ~~That premium tax rate, however, shall not be implemented by the workers' compensation division until the first day of January and shall remain in effect through the last day of the next December.~~ The workers' compensation ~~division~~ commission shall make no merit rate adjustment, as otherwise provided for in paragraph (A), subdivision (1), subsection (a), section four, article two, chapter twenty-three of this code, for the members of the class required to be created by subsection (a) of this section.
  (d) Notwithstanding anything to the contrary in any rules adopted to implement the provisions of section four, article two, chapter twenty-three of this code and for the sole purposes of this section, the workers' compensation ~~division~~ commission shall permit any county board of education affected by this section to be classified in accordance with this section and to be also classified as otherwise required by any rules adopted to implement the provisions of section four, article two, chapter twenty-three of this code.
  (e) Subject to an appropriation by the Legislature, funds shall be provided to the department of education to distribute to the county boards. If the appropriation is less than the total premium calculated, the county boards, individually, shall either reduce the number of students participating in work-based learning experiences off school premises or the county boards shall pay the difference between the amount of the premium calculated by the workers' compensation ~~division~~ commission and the amount allocated to the county board by the department of education.
ARTICLE 10A. REHABILITATION SERVICES.
§18-10A-12a. Workers' compensation for clients participating in unpaid work-based training programs.
  (a) The workers' compensation ~~division~~ commission shall create a classification and calculate a base premium tax rate for clients of the division of rehabilitation services participating in unpaid work-based training programs within integrated community-based settings. The workers' compensation ~~division~~ commission shall report to the division of rehabilitation services:
  (1) The amount of the base premium tax rate for the class; and
  (2) The hourly wages per client to be used to provide the minimum weekly benefits required by section six, article four, chapter twenty-three of this code.
  (b) The base premium tax rate reported annually to the division of rehabilitation services by the workers' compensation ~~division~~ commission shall not be effective until the first day of July and shall remain in effect through the last day of the next June.
  (c) The division of rehabilitation services and the participating entity shall be considered the joint employers of record of the clients while the clients are participating in unpaid work-based training programs in integrated community-based settings: Provided, That the participating entity shall not be held responsible for any liability due the workers' compensation ~~division~~ commission. ~~Such~~ The clients shall be considered to be paid the amount of wages sufficient to provide the minimum workers' compensation weekly benefits required by section six, article four, chapter twenty-three of this code.
ARTICLE 10K. WEST VIRGINIA TRAUMATIC BRAIN AND SPINAL CORD INJURY REHABILITATION FUND ACT.
§18-10K-2. Board created, membership, terms, officers and staff.
  (a) There is hereby established the West Virginia traumatic brain and spinal cord injury rehabilitation fund board.
  (b) The board shall consist of twenty-three members. The members shall include:
  (1) The secretary of the department of education and the arts, ex officio, or his or her designee;
  (2) The secretary of health and human resources, ex officio, or his or her designee;
  (3) The state superintendent of schools, ex officio, or his or her designee;
  (4) The secretary of the department of military affairs and public safety, ex officio, or his or her designee;
  (5) The director of the bureau of behavioral health within the department of health and human resources, ex officio, or his or her designee;
  (6) The director of the division of rehabilitation services, ex officio, or his or her designee;
  (7) The director of the bureau of medical services, ex officio, or his or her designee;
  (8) The director of the office of emergency services, ex officio, or his or her designee;
  (9) The ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission, ex officio, or his or her designee;
  (10) Seven members appointed by the governor to represent public and private health organizations or other disability coalitions or advisory groups; and
  (11) Seven members appointed by the governor who are either survivors of traumatic brain or spinal cord injury or family members of persons with traumatic brain or spinal cord injury.
  (c) The citizen members shall be appointed by the governor for terms of three years, except that of the members first appointed, two of the representatives of public and nonprofit private health organizations, disability coalitions or advisory groups and two of the representatives of survivors or family members of persons with traumatic brain or spinal cord injuries shall serve for terms of one year, two of the representatives of each of those respective groups shall serve for terms of two years, and the remaining three representatives of each of those respective groups shall serve for terms of three years. All subsequent appointments shall be for three years. Members shall serve until the expiration of the term for which they have been appointed or until their successors have been appointed and qualified. In the event of a vacancy, the governor shall appoint a qualified person to serve for the unexpired term. No member may serve more than two consecutive three-year terms. State officers or employees may be appointed to the board unless otherwise prohibited by law.
  (d) In the event a board member fails to attend more than twenty-five percent of the scheduled meetings in a twelve-month period, the board may, after written notification to that member and the secretary of education and the arts, request in writing that the governor remove the member and appoint a new member to serve his or her unexpired term.
  (e) The board shall elect from its membership a chairperson, treasurer and secretary as well as any other officer as appropriate. The term of the chairperson is for two years in duration and he or she cannot serve more than two consecutive terms.
CHAPTER 21. LABOR.
ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.
§21-3A-3. Division of occupational safety and health; coordination of activities with workers' compensation commissioner.
  (a) There is ~~hereby created~~ continued in the labor department a division of occupational safety and health comprised of a subdivision for safety, a subdivision for health and ~~such~~ the other subdivisions as the commissioner considers necessary. This division shall administer all matters pertaining to occupational safety and occupational health.
  (b) The labor commissioner may require the assistance of other state agencies and may enter into agreements with other state agencies and political subdivisions of the state for the administration of this chapter.
  (c) The labor commissioner shall provide for coordination between the division of occupational safety and health and the workers' compensation ~~commissioner~~ commission including, but not limited to, the establishment of standardized procedures and reportings.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 1. UNEMPLOYMENT COMPENSATION.
§21A-1-4. Bureau of employment programs created; division; "bureau" defined.
  There is ~~created~~ continued an agency designated as the bureau of employment programs, composed of a division of unemployment compensation, a division of employment service, a division of job training programs ~~a division of workers' compensation,~~ and ~~such~~ any other divisions or units as that the commissioner determines ~~to be~~ are necessary.
  Wherever within this chapter~~, or in chapter twenty-three of this code,~~ the term "department", "bureau" or "fund" ~~or "workers' compensation fund"~~ is used, it shall be taken to mean bureau of employment programs unless otherwise indicated.
  Notwithstanding the provisions of subdivisions (11) and (12), subsection (d), section one, article two, chapter five-f of this code, the division of employment security ~~and the division of workers' compensation programs are hereby consolidated in an agency~~ is designated as the bureau of employment programs. ~~which the~~ The bureau shall be administered ~~as part of the department of commerce, labor and environmental resources created~~ pursuant to subsection (b)of said section.
ARTICLE 2. THE COMMISSIONER OF THE BUREAU OF EMPLOYMENT PROGRAMS.
§21A-2-6. Powers and duties generally.
  The commissioner is the executive and administrative head of the bureau and has the power and duty to:
  (1) Exercise general supervision of for the governance of the bureau and ~~make~~ propose rules for ~~the government of the bureau~~ promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the requirements of this chapter;
  (2) Prescribe uniform rules pertaining to investigations, departmental hearings and promulgate rules;
  (3) Supervise fiscal affairs and responsibilities of the bureau;
  (4) Prescribe the qualifications of, appoint, remove and fix the compensation of the officers and employees of the bureau, subject to the provisions of section ten, article four of this chapter, relating to the board of review;
  (5) Organize and administer the bureau so as to comply with the requirements of this chapter ~~and chapter twenty-three of this code~~ and to satisfy any conditions established in applicable federal ~~legislation~~ law or regulation;
  (6) Make reports in ~~such~~ the form and containing ~~such~~ information as required by the United States department of labor ~~may, from time to time, require~~ and comply with ~~such provisions as~~ any requirements that the United States department of labor ~~may, from time to time, find~~ finds necessary to assure the correctness and verification of ~~such~~ the reports;
  (7) Make available to any agency of the United States charged with the administration of public works or assistance through public employment, upon its request, the name, address, ordinary occupation and employment status of each recipient of unemployment compensation, and a statement of the recipient's rights to further compensation under this chapter;
  (8) Keep an accurate and complete record of all bureau proceedings, record and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and documents of the bureau;
  (9) Sign and execute in the name of the state, by "The Bureau of Employment Programs", any contract or agreement with the federal government, its agencies, other states, their subdivisions or private persons;
  (10) Prescribe a salary scale to govern compensation of appointees and employees of the bureau;
  (11) Make the original determination of right in claims for benefits;
  (12) Make recommendations and an annual report to the governor concerning the condition, operation and functioning of the bureau;
  (13) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter ~~and chapter twenty-three of this code~~;
  (14) Exercise any other power necessary to standardize administration, expedite bureau business, assure the establishment of fair rules and promote the efficiency of the service;
  (15) Keep an accurate and complete record and prepare a monthly report of the number of persons employed and unemployed in the state. ~~which~~ The report shall be made available upon request to members of the public and press;
  (16) Provide at bureau expense a program of continuing professional, technical and specialized instruction for the personnel of the bureau;
  (17) In addition to the authority granted to the commissioner by section eighteen of this article and notwithstanding anything to the contrary elsewhere in this code, utilize any attorney regularly employed by the bureau or the office of the attorney general to represent the commissioner, the bureau or any of its divisions in any matter. In addition, the commissioner, with the approval of the compensation programs performance council, is authorized to retain counsel for any purpose in the administration of this chapter or in the administration of chapter twenty-three of this code relating to the collection of any amounts due from employers to the bureau or any of its divisions. The compensation programs performance council shall solicit proposals from counsel who are interested in representing the commissioner, the bureau or any of its divisions under the terms of this subdivision. Thereafter, the compensation programs performance council shall select such attorneys as it determines necessary to pursue the collection objectives of this subdivision.
  (A) Payment to any such retained counsel may either be by hourly or other fixed fee, or as determined by the court or administrative law judge as provided for below. A contingency fee payable from the amount recovered by judgment or settlement for the commissioner, the bureau or any of its divisions is only permitted, to the extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so that a full recovery plus attorneys' fees is not possible.
  (B) In the event that any collections action, other than a collections action against a claimant, initiated either by retained counsel or other counsel on behalf of the commissioner, the bureau or any of its divisions results in a judgment or settlement in favor of the commissioner, the bureau or any of its divisions, then the court or, if there was no judicial component to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall be paid by the defendants or respondents to the retained or other counsel representing the commissioner, the bureau or any of its divisions. If the court is to determine the amount of attorneys' fees, it shall include in its determination the amount of fee that should be paid for the representation of the commissioner, the bureau or its divisions in pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by the court or the administrative law judge in an amount no less than twenty percent of its recovery. Any additional amount of attorneys' fees shall be determined by use of the following factors:
  (i) The counsel's normal hourly rate or, if the counsel is an employee of the bureau or is an employee of the office of the attorney general, such hourly rate as the court or the administrative law judge shall determine to be customary based upon the attorney's experience and skill level;
  ~~(ii) The number of hours actually expended on the action;~~
  ~~(iii) The complexity of the issues involved in the action;~~
  ~~(iv) The degree of risk involved in the case with regard to the probability of success or failure;~~
  ~~(v) The overhead costs incurred by counsel with regard to the use of paralegals and other office staff, experts, and investigators; and~~
  ~~(vi) The public purpose served or public objective achieved by the attorney in obtaining the judgment or settlement on behalf of the commissioner, the bureau or any of its divisions.~~
  (C) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commissioner, bureau or any of its divisions and the defendants or respondents to any administrative or judicial action settle the action, then the parties may negotiate a separate settlement of attorneys' fees to be paid by the defendants or respondents above and beyond the amount recovered by the commissioner, the bureau or any its divisions. In the event that such a settlement of attorneys' fees is made, it must be submitted to the court or administrative law judge for approval.
  (D) Any attorney regularly employed by the bureau or by the office of the attorney general may not receive any remuneration for his or her services other than such attorney's regular salary. Any attorneys' fees awarded for such an employed attorney shall be payable to the commissioner;
  ~~(18)~~ (17) ~~With the approval of the compensation programs performance council created pursuant to section one, article three of this chapter, to~~ ~~promulgate~~ Promulgate rules under which agencies of this state shall not grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit whose account is in default with the commissioner with regard to the administration of this chapter ~~and with regard to the administration of chapter twenty-three of this code~~. The term "agency" includes any unit of state government such as officers, agencies, divisions, departments, boards, commissions, authorities or public corporations. An employing unit is not in default if it has entered into a repayment ~~agreements~~ agreement with the ~~appropriate divisions~~ unemployment compensation division of the bureau and remains in compliance with its obligations under the repayment ~~agreements~~ agreement.
  The rules shall provide that, before granting, issuing or renewing any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit, the designated agencies shall review a list or lists provided by the ~~appropriate divisions of the~~ bureau of employers that are in default. If the employing unit's name is not on the list, the agency, unless it has actual knowledge that the employing unit is in default with ~~a division of~~ the bureau may grant, issue or renew the contract, license, permit, certificate or other authority to conduct a trade, profession or business. The list may be provided to the agency in the form of a computerized database or databases that the agency can access. Any objections to ~~such~~ the refusal to issue or renew shall be reviewed under the appropriate provisions of this chapter ~~or of chapter twenty-three of this code, or both, whichever is applicable~~. The rules provided for by this subdivision shall be promulgated pursuant to the provisions of ~~subdivisions (b) and (c), section seven, article three of this chapter as if they were rules being promulgated for the purposes of chapter twenty-three of this code~~ article three, chapter twenty-nine-a of this code. The prohibition against granting, issuing or renewing any contract, license, permit, certificate or other authority under this subdivision ~~are not operative~~ shall continue in full force and effect until the revised rules are promulgated and are in effect~~, except as provided in subdivision (6), section eight, article three, chapter twenty-two or otherwise by law~~.
  The rules may be promulgated or implemented in phases so that specific agencies or specific types of contracts, licenses, permits, certificates or other authority to conduct trades, professions or businesses will be subject to the rules beginning on different dates. The presumptions of ownership or control contained in the division of environmental protection's surface mining reclamation regulations promulgated under the provisions of article three, chapter twenty-two of this code are not applicable or controlling in determining the identity of employing units who are in default for the purposes of this subdivision. The rules shall also provide a procedure allowing any agency or interested person, after being covered under the rules for at least one year, to petition the ~~council~~ bureau of employment programs to be exempt from the provisions of the rules. Rules subjecting all applicable agencies and contracts, licenses, permits, certificates or other authority to conduct trades, professions or businesses to the requirements of this subdivision ~~shall be~~ that were promulgated ~~no later than~~ prior to the first day of ~~January~~ July, two thousand three, shall be revised and submitted for legislative review no later than the first day of January, two thousand four, to reflect the removal of the workers' compensation division from the bureau of employment programs and its replacement by the workers' compensation commission; ~~and~~
  ~~(19)~~ (18) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding any other provision of this code and to the extent allowed by federal law, all amounts of delinquent payments or overpayments, interest and penalties thereon, and attorneys' fees and costs collected under the provisions of this chapter ~~and chapter twenty-three of this code~~. The amounts collected shall not be treated by the auditor or treasurer as part of the general revenue of the state; and
__(19) Enter into interagency agency agreements to assist in exchanging information and fulfilling the provisions of this article.
§21A-2-6c. Payment withholding and interception.
  (a) All state, county, district and municipal officers and agents making contracts on behalf of the state of West Virginia or any political subdivision thereof shall withhold payment in the final settlement of ~~such~~ contracts until the receipt of a certificate from the commissioner to the effect that all payments, interest and penalties thereon accrued against the contractor under this chapter ~~and under chapter twenty-three of this code~~ have been paid or that provisions satisfactory to the commissioner have been made for payment. Any official violating this subsection is guilty of a misdemeanor and, on conviction thereof, shall be fined not more than one thousand dollars or ~~county imprisoned~~ confined in a county or regional jail for not more than one year ~~in the jail~~, or both fined and ~~imprisoned~~ confined.
  (b) Any agency of the state, for the limited purpose of intercepting, pursuant to section sixteen, article five of this chapter and pursuant to section five-a, of article two, chapter twenty-three of this code, any payment by or through the state to an employer who is in default in payment of contributions, premiums, deposits, interest or penalties under the provisions of this chapter or of chapter twenty-three of this code, shall assist the commissioner in collecting the payment that is due. For this purpose, disclosure of joint delinquency and default lists of employers with respect to unemployment compensation and workers' compensation as provided in section one-c, article one, chapter twenty-three of this code contributions, premiums, interest, deposits or penalties is authorized. The bureau and the workers' compensation commission may enter into an interagency agreement to effectuate the provisions of this section. The lists may be in the form of a computerized database to be accessed by the auditor, the department of tax and revenue, the department of administration, the division of highways or any other appropriate state agency or officer.
§21A-2-13. Deputies.
  For the original determination of claims under this chapter ~~and chapter twenty-three of this code~~, the commissioner shall appoint a necessary number of deputies as his or her representatives.
ARTICLE 10. GENERAL PROVISIONS. §21A-10-11. Reporting requirements and required information; use of information; libel and slander actions prohibited.
  (a) Each employer, including labor organizations as defined in subsection (i) of this section, shall, quarterly, submit certified reports on or before the last day of the month next following the calendar quarter, on forms to be prescribed by the commissioner. The reports shall contain:
  (1) The employer's assigned unemployment compensation registration number, the employer's name and the address at which the employer's payroll records are maintained;
  (2) Each employee's social security account number, name, and the gross wages paid to each employee, which shall include the first eight thousand dollars of remuneration and all amounts in excess of ~~such~~ that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter;
  (3) The total gross wages paid within the quarter for employment, which includes money wages and the cash value of other remuneration, and shall include the first eight thousand dollars of remuneration paid to each employee and all amounts in excess of ~~such~~ that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter; and
  (4) Other information as that is reasonably connected with the administration of this chapter.
  (b) Information ~~thus~~ obtained may not be published or be open to public inspection ~~so as~~ to reveal the identity of the employing unit or the individual.
  (c) Notwithstanding the provisions of subsection (b) of this section, the commissioner may provide information ~~thus~~ obtained to the following governmental entities for purposes consistent with state and federal laws:
  (1) The United States department of agriculture;
  (2) The state agency responsible for enforcement of the medicaid program under Title XIX of the Social Security Act;
  (3) The United States department of health and human services or any state or federal program operating and approved under Title I, Title II, Title X, Title XIV or Title XVI of the Social Security Act;
  (4) Those agencies of state government responsible for economic and community development; secondary, post-secondary and vocational education; vocational rehabilitation, employment and training, including, but not limited to, the administration of the Perkins Act and the Job Training and Partnership Act;
  (5) The tax division, but only for the purposes of collection and enforcement;
  (6) The division of labor for purposes of enforcing the wage bond and the contractor licensing provisions of chapter twenty-one of this code;
  (7) Any agency of this or any other state, or any federal agency, charged with the administration of an unemployment compensation law or the maintenance of a system of public employment offices;
  (8) Any claimant for benefits or any other interested party to the extent necessary for the proper presentation or defense of a claim; and
  (9) The ~~division of~~ workers' compensation commission for purposes of collection and enforcement: Provided, That the ~~division of~~ workers' compensation commission shall provide similar information to the ~~other divisions of the~~ bureau of employment programs.
  (d) The agencies or organizations which receive information under subsection (c) of this section shall agree that the information shall remain confidential so as not to reveal the identity of the employing unit or the individual consistent with the provisions of this chapter.
  (e) The commissioner may, before furnishing any information permitted under this section, require that those who request the information shall reimburse the bureau of employment programs for any cost associated ~~therewith~~ for furnishing the information.
  (f) The commissioner may refuse to provide any information requested under this section if the agency or organization making the request does not certify that it will comply with the state and federal law protecting the confidentiality of the information.
  (g) A person who violates the confidentiality provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than two hundred dollars, or ~~imprisoned~~ confined in a county or regional jail not longer than ninety days, or both.
  (h) No action for slander or libel, either criminal or civil, shall be predicated upon information furnished by any employer or any employee to the commissioner in connection with the administration of any of the provisions of this chapter.
  (i) For purposes of subsection (a) of this section, the term "labor organization" means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. It includes any entity, also known as a hiring hall, which is used by the organization and an employer to carry out requirements described in 29 U. S. C. 158(f)(3) of an agreement between the organization and the employer.
CHAPTER 22. ENVIRONMENTAL RESOURCES.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.
§22-3-8. Prohibition of surface mining without a permit; permit requirements; successor in interest; duration of permits; proof of insurance; termination of permits; permit fees.
  No person may engage in surface-mining operations unless ~~such person~~ he or she has first obtained a permit from the director in accordance with the following:
  (1) All permits issued pursuant to the requirements of this article shall be issued for a term not to exceed five years: Provided, That if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation, and if the application is full and complete for ~~such~~ the specified longer term, the director may extend a permit for ~~such~~ a longer term: Provided, however, That subject to the prior approval of the director, with ~~such~~ the approval being subject to the provisions of subsection (c), section eighteen of this article, a successor in interest to a permittee who applies for a new permit, or transfer of a permit, within thirty days of succeeding to ~~such~~ the interest, and who is able to obtain the bond coverage of the original permittee, may continue surface-mining and reclamation operations according to the approved mining and reclamation plan of the original permittee until ~~such~~ the successor's permit application or application for transfer is granted or denied.
  (2) Proof of insurance is required on an annual basis.
  (3) A permit terminates if the permittee has not commenced the surface-mining operations covered by ~~such~~ the permit within three years of the date the permit was issued: Provided, That the director may grant reasonable extensions of time upon a timely showing that ~~such~~ the extensions are necessary by reason of litigation precluding ~~such~~ commencement, or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee: Provided, however, That with respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee shall be ~~deemed~~ considered to have commenced surface-mining operations at ~~such~~ the time as the construction of the synthetic fuel or generating facility is initiated.
  (4) Each application for a new surface-mining permit filed pursuant to this article shall be accompanied by a fee of one thousand dollars. All permit fees and renewal fees provided for in this section or elsewhere in this article shall be collected by the director and deposited with the treasurer of the state of West Virginia to the credit of the operating permit fees fund and shall be used, upon requisition of the director, for the administration of this article.
  (5) Prior to the issuance of any permit, the director shall ascertain from the commissioner of the division of labor whether the applicant is in compliance with section fourteen, article five, chapter twenty-one of this code. Upon issuance of the permit, the director shall forward a copy to the commissioner of the division of labor, who shall assure continued compliance under ~~such~~ the permit.
  (6) (A) Prior to the issuance of any permit the director shall ascertain from the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission whether the applicant is in compliance with the provisions of section six-c, article two, chapter twenty-one-a of this code and section five, article two, chapter twenty-three of this code with regard to any required subscription to the unemployment compensation fund or to the workers' compensation fund, the payment of premiums to the fund, the timely filing of payroll reports and the maintenance of an adequate premium deposit. If the applicant is delinquent or defaulted, or has been terminated by the bureau or the commission, ~~then~~ the permit shall not be issued until the applicant returns to compliance or is restored by the ~~workers' compensation division~~ bureau or the commission under a reinstatement agreement: Provided, That in all ~~such~~ inquiries the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission shall make response to the division of environmental protection within fifteen calendar days; otherwise, failure to respond timely ~~shall be~~ is considered to indicate the applicant is in compliance and ~~such~~ the failure will not be used to preclude issuance of the permit.
  (B) It is a requirement of this article that each operator maintain continued compliance with the provisions of section five, article two, chapter twenty-three of this code and provide proof of compliance to the director on a ~~annual~~ quarterly basis.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created; findings.
  (a) The commissioner of the bureau of employment programs appointed under the provisions of section one, article two, chapter twenty-one-a of this code, has the sole responsibility for the administration of this chapter except for such matters as are entrusted to the compensation programs performance council created pursuant to section one, article three, chapter twenty-one-a of this code. In the administration of this chapter, the commissioner shall exercise all the powers and duties described in this chapter and in article two, chapter twenty-one-a of this code.
  ~~(b) The commissioner is authorized to promulgate rules and regulations to implement the provisions of this chapter.~~
  (c) The commissioner shall have an official seal for the authentication of orders and proceedings, upon which seal shall be engraved the words "West Virginia Commissioner of Employment Programs" and such other design as the commissioner may prescribe. The courts in this state shall take judicial notice of the seal of the commissioner and in all cases copies of orders, proceedings or records in the office of the West Virginia commissioner of employment programs shall be equal to the original in evidence.
  (d) Pursuant to the provisions of article ten, chapter four of this code, the commissioner of the bureau of employment programs shall continue to administer this chapter until the first day of July, two thousand four.
  ~~(e) The attorney general shall perform all legal services required by the commissioner under the provisions of this chapter:~~ ~~Provided,~~ That in any case in which an application for review is prosecuted from any final decision of the workers' compensation appeal board to the supreme court of appeals, as provided by section four, article five of this chapter, or in any court proceeding before the workers' compensation appeal board, or in any proceedings before the office of judges, or in any case in which a petition for an extraordinary writ is filed in the supreme court of appeals or in any circuit court, in which such representation shall appear to the commissioner to be desirable, the commissioner may designate a regular employee of this office, qualified to practice before such court to represent the commissioner upon such appeal or proceeding, and in no case shall the person so appearing for the commissioner before the court receive remuneration therefor other than such person's regular salary.
  (a) The Legislature finds that a deficit exists in the workers' compensation fund of such critical proportions that it constitutes an imminent threat to the immediate and long-term solvency of the fund. The Legislature further finds that addressing the workers' compensation crisis requires the efforts of all persons and entities involved. Modification to the rate system, alteration of the benefit structure, improvement of current management practices and changes in perception must be merged into a unified effort to make the workers' compensation system viable and solvent. It is the intent of the Legislature that the amendments to this chapter enacted during the regular session of the Legislature in the year two thousand three be applied from the date upon which the enactment is made effective by the Legislature. The Legislature finds that an emergency exists as a result of the combined effect of this deficit, other state budgetary deficits and liabilities, and other grave social and economic circumstances currently confronting the State, and that unless the changes provided by the enactment of the amendments to this chapter, as well as other legislation designed to address the problem are made effective immediately, the fiscal stability of this state will suffer irreparable harm. Accordingly, the Legislature finds that the need of the citizens of this state for the protection of the state treasury and the solvency of the workers' compensation funds requires the limitations on any expectations that may have arisen from prior enactments of this chapter.
__(b) It is the further intent of the Legislature that this chapter be interpreted so as to assure the quick and efficient delivery of indemnity and medical benefits to injured workers at a reasonable cost to the employers who are subject to the provisions of this chapter. It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits and that a rule of "liberal construction" based on any "remedial" basis of workers' compensation legislation shall not affect the weighing of evidence in resolving such cases. The workers' compensation system in this state is based on a mutual renunciation of common law rights and defenses by employers and employees alike. Employees' rights to sue for damages over and above medical and health care benefits and wage loss benefits are to a certain degree limited by the provisions of this chapter, and employers' rights to raise common law defenses such as lack of negligence, contributory negligence on the part of the employee, and others, are curtailed as well. Accordingly, the Legislature hereby declares that any remedial component of the workers' compensation laws is not to cause it to receive liberal construction that alters in any way the proper weighing of evidence as required by section one-g, article four of this chapter.
__(c) The "Workers' Compensation Division of the Bureau of Employment Programs" is, on or after the first day of July, two thousand three, reestablished, reconstituted and continued as the workers' compensation commission, an agency of the state. The purpose of the commission is to ensure the fair, efficient and financially stable administration of the workers' compensation system of the state of West Virginia. The powers and duties heretofore imposed upon the workers' compensation division and the commissioner of the bureau of employment programs as they relate to workers' compensation are hereby imposed upon the workers' compensation commission and its executive director in the manner prescribed by this chapter.
§23-1-1a. Workers' compensation management council; appointment; composition; qualifications; terms; chairperson; meetings and quorum; compensation and travel expenses; powers and duties.
  (a) On the effective date of the enactment of this section in two thousand three, the compensation programs performance council heretofore established in article three, chapter twenty- one-a of this code is reestablished, reconstituted and continued as the "workers' compensation management council", which may also be referred to as "management council" or "council".
  (b)(1) The council shall consist of eleven as follows:
  (A) The governor or his or her designee;
  (B) The chief executive officer of the West Virginia investment management board, if required to attend more than one meeting per month, he or she may send a designee to the additional meetings;
  (C) The executive director of the West Virginia development office, if required to attend more than one meeting per month, he or she may send a designee to the additional meetings; and
  (D) Eight members meeting the requirements of this subsection and subsection (c) of this section: Provided, That the members serving on the performance council on the effective date of the enactment of this section in two thousand three, shall continue in office subject to the provisions of subsection (b) of this section.
  (2) Two members of the West Virginia Senate and two members of the West Virginia House of Delegate shall serve as advisory members of the council. The governor shall appoint the legislative members to the council. No more than three of the legislative members shall be of the same political party.
  (c) Members appointed to the performance council shall continue in office as members of the management council until the expiration of their term and until a successor has been duly appointed and confirmed pursuant to this section. Subsequently appointed members of the management council shall be appointed by the governor, with the advice and consent of the Senate. No appointed member may be a candidate for or hold elected office. If a candidate for council member is not confirmed by the Senate, a new candidate shall be selected in accordance with the provisions of this section. The appointed members shall be appointed for a term of four years and until a successor has been duly appointed and confirmed pursuant to this section. Members may be reappointed no more than two full terms. Appointments to fill the unexpired term of a member shall be for the remainder of the term. Members of the management council may only be removed by the governor for good cause shown.
  (d) The eight voting members of the council appointed by the governor shall be appointed based upon his or her demonstrated knowledge and experience to effectively accomplish the purposes of this chapter. They shall meet the minimum qualifications as follows:
  (1) Each shall hold a baccalaureate degree from an accredited college or university;
  (2) Each member shall have a minimum of ten years experience in his or her field of expertise. The governor shall consider the following guidelines when determining whether potential candidates meet the qualifications of this subsection: expertise in insurance claims management; expertise in insurance underwriting; expertise in financial management in pension or insurance; expertise as a trustee of pension or trust funds of more than two hundred beneficiaries or three hundred million dollars; expertise in workers' compensation management; expertise in occupational medicine demonstrated by licensure as a medical doctor in West Virginia and experience, board certification or university affiliation; or expertise in similar areas of endeavor.
  (3) Of the members appointed by the governor, at least one member shall be a certified public accountant with financial management or pension or insurance audit expertise; at least one shall be an attorney with financial management experience; and one shall be an academician holding an advanced degree from an accredited college or university in business, finance, insurance or economics.
  (e) All members of the management council shall have a fiduciary responsibility to the commission and all workers' compensation funds and shall assure the proper administration of the fund in a fiscally responsible manner.
  (f) The management council shall elect one member to serve as the chairperson of the council. The chairperson shall serve for a one year term and may serve more than one consecutive term. The management council shall hold meetings at the request of the chairperson or at the request of at least three of the members of the management council, but no less frequently than once every three months. The chairperson shall determine the date and time of each meeting. Six members of the management council constitute a quorum for the conduct of the business of the management council. No vacancy in the membership of the council shall impair the right of a quorum to exercise all the rights and perform all the duties of the council. No action shall be taken by the management council except upon the affirmative vote of six members of the council.
  (g) Notwithstanding the provisions of article seven, chapter six of this code, the management council shall establish the salary of the executive director. The minimum salary is one hundred twenty thousand dollars and the maximum salary may not exceed one hundred eighty thousand dollars: Provided, That the maximum salary may be adjusted by the council in accordance with generally accepted annual inflation indices. The council shall establish a set of performance measurements to evaluate the performance of the executive director in fulfilling his or her duties as prescribed in this chapter and shall annually rate the executive director's performance according to the established measurements and may adjust his or her annual salary in accordance with that performance rating.
  (h) In addition to actual travel expenses incurred in the performance of his or her duties, each voting appointed member of the council shall receive not more than five hundred dollars for each meeting where he or she is required to and does attend.
  (i) Each member of the council shall be provided appropriate liability insurance, including, but not limited to, errors and omissions coverage, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
  (j) The management council shall:
  (1) Review and approve, reject or modify recommendations from the executive director for the development of overall policy for the administration of this chapter;
  (2) In conjunction with the executive director, propose legislation and establish operating guidelines and policies designed to ensure the effective administration and financial viability of the workers' compensation system of West Virginia;
  (3) Review and approve, reject or modify rules that are proposed by the executive director for operation of the workers' compensation system before the filing of the rules with the secretary of state. The rules adopted by the management council are not subject to sections nine through sixteen, article three, chapter twenty-nine-a of this code. The management council shall follow the remaining provisions of chapter twenty-nine-a of this code for giving notice to the public of their actions and for holding hearings and receiving public comments on the rules;
  (4) In accordance with the laws, rules and regulations of West Virginia and the United States government, establish and monitor performance standards and measurements to ensure the timeliness and accuracy of activities performed under the workers' compensation laws and rules;
  (5) Review and approve, reject or modify all classifications of occupations or industries, premium rates and taxes, administrative charges, rules and systems of rating, rating plans, rate revisions, deficit management assessments and merit rating for employers covered by this chapter. The executive director shall provide all information required for the council's review;
  (6) In conjunction with the executive director initiate, oversee and review all independent financial audits and actuarial reviews of the commission and shall review all internal audits. The council shall employ an actuary or contract for actuarial services. The executive director shall provide access to records of the commission to facilitate the review required under this section;
  (7) Approve the allocation of sufficient administrative resources and funding to efficiently operate the workers' compensation system of West Virginia. To assure efficient operation, the council shall direct the development of a plan for the collections performed under section five-a, article two of this chapter. The plan for collections shall maximize ratio of dollars potentially realized by the collection proceeding to the dollars invested in collection activity;
  (8) Review and approve, reject or modify the budget prepared by the executive director for the operation of the commission. The budget shall include estimates of the costs and necessary expenditures of the commission in the discharge of all duties imposed by this chapter as well as the cost of providing offices, furniture, equipment and supplies to all commission officers and employees;
  (9) In conjunction with the executive director, approve the designation of health care providers to make decisions for the commission regarding appropriateness of medical services;
  (10) Require the workers' compensation commission to develop, maintain and use an effective program of return to work services for employers and workers;
  (11) Require the workers' compensation commission to develop, maintain and use thorough and efficient claims management procedures and processes and fund management in accordance with the generally accepted practices of the workers' compensation insurance industry;
  (12) Consider other matters regarding the workers' compensation system as the governor, executive director or any member of the management council may desire;
  (13) Review and approve, reject or modify standards recommended by the executive director to be considered by the commission in making decisions on all levels of disability awards. The standards should be established as an effective means to make prompt, appropriate decisions relating to medical care and methods to assist employees to return to work as quickly as possible;
  (14) Appoint, if necessary, a temporary executive director;
  (15) Establish an audit committee and employ an independent auditor and an actuary to evaluate the actuarial soundness of the workers' compensation funds and the deficit management funds annually to ensure that sufficient funds are available to meet obligations;
  (16) Employ sufficient professional and clerical staff to carry out the duties of the council. Employees of the council shall serve at the will and pleasure of the council. The council's employees are exempt from the salary schedule or pay plan adopted by the division of personnel; and
  (17) Study the feasability of privatizing the workers' compensation system of this state; the effect, if any, of attorneys fees on the cost of administering the workers' compensation system; the extent, if any, of fraud or abuse on the part of employees, employers, providers and others on the cost of administering the workers' compensation system; the extent, if any, that the rates and amounts of disability awards exceed the rates and amounts of such awards in other states and the comparative desirability of alternative permanent disability administration in those other states; and alternative deficit management strategies, including non-traditional funding. On or before the first day of January, two thousand six, the commission shall report the findings and conclusions of each study and any recommendations the commission may have as a result of the study to the joint committee on government and finance.
§23-1-1b. Executive director; qualifications; oath; seal; removal; powers and duties.
  (a) The executive director shall be hired by the management council for a term not to exceed five years and may be retained based on overall performance for additional terms: Provided, That the current executive director of the division of workers' compensation shall be the initial executive director of the commission. The position of executive director shall be full-time employment. Future candidates for the position of executive director shall have a minimum of a bachelor of arts or science degree from an accredited four-year college or university in one or more of the following disciplines: Finance; economics; insurance administration; law; public administration; accounting; or business administration. Candidates for the position of executive director will be considered based on their demonstrated education, knowledge and a minimum of ten years' experience in the areas of workers' compensation, insurance company management, administrative and management experience with an organization comparable in size to the workers' compensation commission, or any relevant experience which demonstrates an ability to effectively accomplish the purposes of this chapter.
  (b) The executive director shall not be a candidate for or hold any other public office or trust, nor shall he or she be a member of a political committee. If he or she becomes a candidate for a public office or becomes a member of a political committee, his or her office as executive director shall be immediately vacated.
  (c) The executive director, before entering upon the duties of his or her office, shall take and subscribe to the oath prescribed by section five, article IV of the state constitution. The oath shall be filed with the secretary of state.
  (d) The executive director shall have an official seal for the authentication of orders and proceedings, upon which seal shall be engraved the words "West Virginia Workers' Compensation Commission" and any other design prescribed by the management council. The courts in this state shall take judicial notice of the seal of the commission and in all cases copies of orders, proceedings or records in the office of the West Virginia workers' compensation commission are equal to the original in evidence.
  (e) The executive director shall not be a member of the management council.
  (f) The executive director shall serve until the expiration of his or her term, resignation or until removed by a majority vote of the full management council. The management council and the executive director may, by agreement, terminate the term of employment at any time.
  (g) The executive director shall have overall management responsibility and administrative control and supervision within the workers' compensation commission and has the power and duty to:
  (1) Establish, with the approval of the management council, the overall administrative policy of the commission for the purposes of this chapter;
  (2) Employ, direct and supervise all employees required in connection with the performance of the duties assigned to the commission by this chapter and fix the compensation of the employees in accordance with the provisions of article six, chapter twenty-nine of this code;
  (3) Reorganize the work of the commission, its divisions, sections, and offices to the extent necessary to achieve the most efficient performance of its functions. All persons employed by the workers' compensation division in positions that were formerly supervised and directed by the commissioner of the bureau of employment programs under chapter twenty-one-a of this code are hereby transferred to the workers' compensation commission in their respective classifications. Due to the emergency currently existing at the commission and the urgent need to develop fast, efficient claims processing, management and administration, the executive director is hereby granted authority to create new positions and to establish pay grade and wage scales necessary for the commission to effectuate the purposes of this chapter: Provided, That no provision of this subdivision may be construed to authorize the reduction of the salary, benefits or other rights of a classified employee transferred to the commission under the provisions of this subdivision. The division of personnel shall cooperate fully by assisting in the development of classifications, position descriptions and other materials necessary to expedite all changes for the commission. No more than fifteen of the newly created positions may be exempted from the salary schedules or pay plan adopted by the state personnel board;
  (4) Provide offices, equipment, supplies and other facilities for the commission, including suitable office space for commission employees;
  (5) With the advice and approval of the management council, propose operating guidelines and policies to standardize administration, expedite commission business and promote the efficiency of the services provided by the commission;
  (6) Prepare and submit to the management council information the council requires for classifications of occupations or industries; the basis for premium rates, taxes, surcharges and assessment for administrative charges, for assessments related to loss experience, for assessments of prospective risk exposure, for assessments of retrospective costs incurred, for deficit management assessments, for rules and systems of rating, rate revisions and merit rating for employers covered by this chapter; and information regarding the extent, degree and amount of subsidization between the classifications. The executive director shall obtain, prepare and submit any other information the management council requires for the prompt and efficient discharge of its duties;
  (7) Keep accurate and complete accounts and records necessary to the collection, administration and distribution of the workers' compensation funds;
  (8) Sign and execute in the name of the state, by "The Workers' Compensation Commission", any contract or agreement;
  (9) Make recommendations and an annual report to the governor concerning the condition, operation and functioning of the commission;
  (10) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter;
  (11) Prepare and submit for approval to the management council a budget for each fiscal year, including estimates of the costs and necessary expenditures of the commission in the discharge of all duties imposed by this chapter as well as the costs of furnishing office space to the officers and employees of the commission;
  (12) Ensure that all employees of the commission follow the orders, operating guidelines and policies of the commission as they relate to the commission's overall policy-making, management and adjudicatory duties under this chapter;
  (13) Delegate all powers and duties vested in the executive director to his or her appointees and employees; but the executive director is responsible for their acts;
  (14) Provide at commission expense a program of continuing professional, technical and specialized instruction for the personnel of the commission. The executive director shall consult with and report at least annually to the legislative oversight commission on workforce investment for economic development to obtain the most appropriate training using all available resources;
  (15) (A) May contract or employ counsel to perform all legal services for the commission including, but not limited to, representing the executive director, management council and commission in any administrative proceeding and in any state or federal court. Additionally, the commission may, but shall not be required to, call upon the attorney general for legal assistance and representation as provided by law. The attorney general shall not approve or exercise authority over in-house counsel or contract counsel hired pursuant to this section.
  (B) In addition to the authority granted by this section to the executive director and notwithstanding any provision to the contrary elsewhere in this code, use any attorney regularly employed by the commission or the office of the attorney general to represent the commission, the executive director or the management council in any matter arising from the performance of its duties or the execution of its powers under this chapter. In addition, the executive director, with the approval of the management council, may retain counsel for any purpose in the administration of this chapter relating to the collection of any amounts due from employers to the commission: Provided, That the allocation of resources for the purpose of any collections shall be pursuant to the plan developed by the management council. The management council shall solicit proposals from counsel who are interested in representing the commission under the terms of this subdivision. Thereafter, the management council shall select any attorneys it determines necessary to pursue the collection objectives of this subdivision:
  (i) Payment to retained counsel may either be hourly or by other fixed fee, or as determined by the court or administrative law judge as provided for in this section. A contingency fee payable from the amount recovered by judgment or settlement for the commission is only permitted, to the extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so that a full recovery plus attorneys' fees is not possible;
  (ii) In the event that any collections action, other than a collections action against a claimant, initiated either by retained counsel or other counsel on behalf of the commission results in a judgment or settlement in favor of the commission, the court or, if there was no judicial component to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall be paid by the defendants or respondents to the retained or other counsel representing the commission. If the court is to determine the amount of attorneys' fees, it shall include in its determination the amount of fee that should be paid for the representation of the commission in pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by the court or the administrative law judge in an amount no less than twenty percent of its recovery. Any additional amount of attorneys' fees shall be determined by use of the following factors:
  (I) The counsel's normal hourly rate or, if the counsel is an employee of the commission or is an employee of the office of the attorney general, an hourly rate the court or the administrative law judge determines to be customary based upon the attorney's experience and skill level;
  (II) The number of hours actually expended on the action;
  (III) The complexity of the issues involved in the action;
  (IV) The degree of risk involved in the case with regard to the probability of success or failure;
  (V) The overhead costs incurred by counsel with regard to the use of paralegals and other office staff, experts and investigators; and
  (VI) The public purpose served or public objective achieved by the attorney in obtaining the judgment or settlement on behalf of the commission.
  (iii) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commission and the defendants or respondents to any administrative or judicial action settle the action, the parties may negotiate a separate settlement of attorneys' fees to be paid by the defendants or respondents above and beyond the amount recovered by the commission. In the event that a settlement of attorneys' fees is made, it must be submitted to the court or administrative law judge for approval;
  (iv) Any attorney regularly employed by the commission or by the office of the attorney general may not receive any remuneration for his or her services other than the attorney's regular salary. Any attorneys' fees awarded for an employed attorney are payable to the commission;
  (16) With the approval of the management council, promulgate rules under which agencies of this state shall revoke or refuse to grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit whose account is in default with the commission with regard to the administration of this chapter. The term "agency" includes any unit of state government such as officers, agencies, divisions, departments, boards, commissions, authorities or public corporations. An employing unit is not in default if it has entered into a repayment agreement with the commission and remains in compliance with its obligations under the repayment agreements.
  (A) The rules shall provide that, before granting, issuing or renewing any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit, the designated agencies shall review a list or lists provided by the commission of employers that are in default. If the employing unit's name is not on the list, the agency, unless it has actual knowledge that the employing unit is in default with the commission, may grant, issue or renew the contract, license, permit, certificate or other authority to conduct a trade, profession or business. The list may be provided to the agency in the form of a computerized database or databases that the agency can access. Any objections to the refusal to issue or renew shall be reviewed under the appropriate provisions of this chapter. The prohibition against granting, issuing or renewing any contract, license, permit, certificate or other authority under this subdivision shall remain in full force and effect as promulgated under section six, article two, chapter twenty-one-a of this code until the rules required by this subsection are promulgated and in effect.
  (B) The rules shall also provide a procedure allowing any agency or interested person, after being covered under the rules for at least one year, to petition the commission to be exempt from the provisions of the rules;
  (17) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding any other provision of this code and to the extent allowed by federal law, all amounts of delinquent payments or overpayments, interest and penalties thereon, and attorneys' fees and costs collected under the provisions of this chapter. The amounts collected shall not be treated by the auditor or treasurer as part of the general revenue of the state;
  (18) Recommend for approval of the council, rules for the administration of claims management by self-insured employers and third-party administrators including regulation and sanctions for the rejection of claims and for maintaining claim records and ensuring access to all claim records by interested claimants, claimant representatives, the commission and the office of judges;
  (19) Recommend for approval of the management council, rules to eliminate the ability of an employer to avoid an experience modification factor by virtue of a reorganization of a business;
  (20) Submit for approval of the council, rules setting forth procedures for auditing and investigating employers, including programs of self-insured employers and third-party administrators, employees, health care providers and medical and vocational rehabilitation service providers wherever a formal substantive complaint has been filed. Audits and investigations shall be conducted whenever the commission has grounds for believing that the person, persons, organization or group is not in full compliance with the commission's rules or this chapter;
  (21) Regularly audit and monitor programs established by self-insured or third-party administrators under this chapter to ensure compliance with the commission's rules and the law;
  (22) Establish and maintain an investigation and fraud unit. The unit is not subject to any requirement of article nine-a, chapter six of this code, and the investigations conducted by the unit and the materials placed in the files of the unit as a result of any such investigation are exempt from public disclosure under the provisions of chapter twenty-nine-b of this code;
  (23) Enter into interagency agreements to assist in exchanging information and fulfilling the default provisions of this chapter;
  (24) Notwithstanding any provision of this code to the contrary, the executive director, under emergency authorization, may expend up to fifty thousand dollars for purchases of and may contract for goods and services without securing competitive bids. This emergency spending authority expires on the first day of July, two thousand five;
  (25) Establish an employer violator system to identify individuals and employers who are in default or are delinquent on any premium, assessment, surcharge, tax or penalty owed to the commission. The employer violator system shall prohibit violators who own, control or have an ownership interest, as defined by the commission, in a company from obtaining or maintaining any license or permit issued by the state until the violator has paid all monies owed to the commission or has entered into and remains in compliance with a repayment agreement; and
  (26) Propose the designation of health care providers to make decisions for the commission regarding appropriateness of medical services.
§23-1-1c. Payment withholding; interception; penalty.
  (a) All state, county, district and municipal officers and agents making contracts on behalf of the state of West Virginia or any political subdivision thereof shall withhold payment in the final settlement of contracts until the receipt of a certificate from the commission to the effect that all payments, interest and penalties thereon accrued against the contractor under this chapter have been paid or that provisions satisfactory to the commission have been made for payment. Any official violating this subsection is guilty of a misdemeanor and, on conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail for not more than one year, or both fined and confined.
  (b) Any agency of the state, for the limited purpose of intercepting, pursuant to section five- a, article two, chapter twenty-three of this code, any payment by or through the state to an employer who is in default in payment of contributions, premiums, deposits, interest or penalties under the provisions of this chapter, shall assist the commission in collecting the payment that is due. For this purpose, disclosure of joint delinquency and default lists of employers with respect to unemployment compensation as provided in section six-c, article one, chapter twenty-one-a of this code and workers' compensation contributions, premiums, interest, deposits or penalties is authorized. The commission and the bureau of employment programs may enter into an interagency agreement to effectuate the provisions of this section. The lists may be in the form of a computerized database to be accessed by the auditor, the department of tax and revenue, the department of administration, the division of highways or other appropriate state agency or officer.
§23-1-1d. Rules of former division of workers' compensation.
  Except as otherwise provided for in this chapter, all rules applicable to the former workers' compensation division of the bureau of employment programs are hereby adopted and made effective as to the operation of the workers' compensation commission under this chapter to the extent that they are not in conflict with the current law. The management council shall review and approve, modify or replace all existing rules no later than the first day of July, two thousand six.
§23-1-1e. Transfer of assets and contracts.
  With the establishment of the workers' compensation commission, all assets and contracts, along with rights and obligations thereunder, obtained or signed on behalf of the workers' compensation division of the bureau of employment programs in furtherance of the purposes of this chapter, are hereby transferred and assigned to the workers' compensation commission.
§23-1-1f. Continuation.
  The workers' compensation division shall continue to exist pursuant to article ten, chapter four of this code, until the first day of July, two thousand three, at which time all powers and duties are transferred to the workers' compensation commission. The workers' compensation commission shall continue to exist, pursuant to said article until the first day of July, two thousand four, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§23-1-2. Oversight of the workers' compensation commission.
  All expenses peculiar to the administration of this chapter, and, when on official business, the traveling and incidental expenses of the commissioner and salaries or other compensation, traveling and other expenses of all officers or employees of the commissioner, and all expenses for furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all organizations pertaining to workers' compensation or safety in which the commissioner considers it advisable to maintain membership, shall be paid out of the workers' compensation fund.
  (a) In addition to any other oversight of the commission exercised by the Legislature, the commission shall report at least quarterly to the joint committee on government and finance and the joint commission on economic development. The commission shall collect data and report on claims and injuries and on the costs and outcomes of injuries by standard codes for medical treatment, vocation rehabilitation services, return to work services, other benefits payable to or on behalf of employees, efforts to eliminate fraud and abuse, and the impact of judicial and quasi- judicial rulings on the administration of the workers' compensation system and the solvency of the fund. The workers' compensation commission shall provide to the joint committee on government and finance and the joint commission on economic development an action plan for improving the workers' compensation system. This plan shall include detail on any administrative changes undertaken by the commission, a report on the anticipated outcome of the changes, a cost-benefit analysis of the changes and time frames for commencement and completion of these changes. Subsequent reports to the joint committee on government and finance and the joint commission on economic development shall report on the progress of these changes. The administrative changes shall include, but are not limited to, claims processing, reorganization, staff development and training, return-to-work programs, workplace alternatives for injured workers, safety programs and medical and vocational services.
__(b) The commission shall further provide detailed analysis in each report to the Legislature of the current status of the deficit management fund. This analysis shall include the current balance in the fund, revenue generated and expended in relationship to the deficit management fund and estimates of debt reduction relative to the deficit management fund over the next reporting period.
__(c) The commission shall also report on the current status of the workers' compensation fund and the occupational pneumoconiosis fund. This analysis shall include the current balances in the fund and revenue generated and expended in relationship to the liabilities and assets of the funds.
__(d) The commission shall further report to the Legislature on the impact on the workers' compensation system of the amendments to subdivision (2), subsection (n), section six, article four of this chapter enacted during the year two thousand three, including but not limited to an analysis of any litigation resulting from the amendments.
__(e) The commission shall further report to the Legislature on methodologies used to establish all types of assessments and rates.
__(f) The commission shall further report to the Legislature on legislative action that may be required to further improve the operation of the commission.
§23-1-3. Payment of salaries and expenses generally; manner; limitation.
  (a) All expenses peculiar to the administration of this chapter, and, when on official business, the travel and incidental expenses of the commissioner and salaries or other compensation, traveling and other expenses of all officers or employees of the commission, and all expenses for furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all organizations pertaining to workers' compensation, safety maintenance or professional designation in which the executive director considers it advisable to maintain membership, shall be paid out of the workers' compensation fund.
__(b) All payments of salaries and expenses in the administration of this chapter shall be made by the state treasurer upon requisition signed by the ~~commissioner~~ executive director, directed to the auditor of the state, who shall draw his or her warrant therefor, and ~~any such~~ the payment shall be charged to the workers' compensation fund: Provided, That the total charges against ~~such~~ the fund under this section for any one fiscal year shall not exceed the amount appropriated ~~therefor~~ for the administration of this chapter.
§23-1-4. Office hours; records; confidentiality; exceptions.
  (a) The offices of the workers' compensation ~~division~~ commission shall be open for the transaction of business between the hours of eight-thirty o'clock a.m., and five o'clock p.m., of each and every day, excepting Saturdays, Sundays and legal holidays, and be open upon ~~such~~ any additional days and at ~~such~~ any additional times as elected by the ~~division may elect~~ commission. As The executive director is the chief executive officer of the ~~bureau of employment programs~~ workers' compensation commission~~., the commissioner shall designate an executive director to serve as the chief operating officer for the daily operations of the workers' compensation division:~~ ~~Provided,~~ ~~That in any instance in this chapter which refers to the commissioner's secretary, such reference shall be taken to mean the executive director~~
  (b) Except as expressly provided for in this subsection, information obtained regarding employers and claimants pursuant to this chapter for the purposes of its administration ~~shall~~ is not be subject to the provisions of chapter twenty-nine-b of this code unless ~~such~~ the provisions are hereafter specifically made applicable, in whole or in part. ~~Such~~ The information ~~as may be~~ that is reasonably necessary may be released in formal orders or opinions of any tribunal or court which is presented with an issue arising under this chapter as well as in the presentations of the parties before ~~any such~~ the tribunal or court. Similarly, claimants or other interested parties to an issue arising under this chapter may, upon request, obtain information from the ~~division's~~ commission's records to the extent necessary for the proper presentation or defense of a claim or other matter. Information may be released pursuant to the provisions of chapter twenty-nine-b of this code only if all identifying information has first been eliminated from the records. Nothing in this subsection shall prevent the release of information to another agency of the state or of the federal government for the legitimate purposes of those agencies: Provided, That ~~any such~~ the agency shall guarantee the confidentiality of the information so provided to the fullest extent possible in keeping with its own statutory and regulatory mandates. Nothing in this section shall prevent the ~~division~~ commission from complying with any subpoena duces tecum: Provided, however, That the issuing tribunal or court shall take such actions as ~~may be~~ proper to maintain the confidentiality of the information.
  The ~~division~~ commission may release, pursuant to a proper request under the provisions of chapter twenty-nine-b of this code, the following information:
  (1) The base premium tax rate for a specific employer;
  (2) Whether or not a specific employer has obtained coverage under the provisions of this chapter;
  (3) Whether or not a specific employer is in good standing or is delinquent or in default according to the ~~division's~~ commission's records and the time periods thereof; and
  (4) If a specific employer is delinquent or in default, what the payments due the ~~division~~ commission are and what the components of that payment are including the time periods affected.
§23-1-4a. Bond for executive director and associate director.
  (a) The executive director and associate director of the workers' compensation commission shall give bond in an amount determined by the management council conditioned for the faithful management of the fund and performance of their duties. The bond shall be approved by the attorney general as to form. The surety of the bond may be a bonding or surety company, in which case the premium shall be paid out of the workers' compensation fund.
  (b) The executive director and associate director shall be provided appropriate insurance, including, but not limited to, errors and omission coverage, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
§23-1-5. Office of executive director; hearings.
  The ~~commissioner~~ executive director shall keep and maintain his or her office at the seat of government and shall provide a suitable room or rooms, necessary office furniture, supplies, books, periodicals, maps and other equipment. After due notice, showing the time and place, the ~~commissioner~~ executive director may hold hearings anywhere within the state, or elsewhere by agreement of claimant and employer, with the approval of the ~~commissioner~~ executive director.
§23-1-6. Employment of associate director and other assistants; compensation and travel expenses.
  (a) The ~~commissioner~~ executive director may employ ~~a secretary~~ an associate director, actuary, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants, and fix their compensation, which shall be paid as provided in ~~sections two and~~ section three of this article. The associate director shall be hired with the approval of the management council and serves at the will and pleasure of the executive director.
__(b) The ~~commissioner, secretary~~ associate director, supervisory officers, actuaries, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants who may be employed ~~shall be~~ are entitled to receive from the workers' compensation fund their ~~actual and~~ necessary expense while traveling on business of the ~~commissioner Such~~ commission. Travel reimbursement shall be paid in accordance with the travel guidelines established by the department of administration. All expenses shall be itemized and sworn to by the person who incurred the expense, and ~~shall be~~ are subject to the approval of the ~~commissioner~~ executive director: Provided, That the expenses of the executive director shall be subject to the approval of the management council.
§23-1-7. Associate director to act during executive director's absence or inability to act and in case of vacancy; bond of associate director.
  Whenever it ~~shall appear~~ appears that the ~~commissioner~~ executive director will be absent or unable to act for one week or more, the ~~secretary~~ associate director of the ~~commissioner~~ commission may be designated by the ~~commissioner~~ executive director to act during his or her absence or inability to act, and during ~~such~~ that period he or she shall have all the duties and powers of the commissioner. The secretary shall give bond in the penalty of twenty-five thousand dollars conditioned for the faithful performance of the duties of his office, which bond shall be approved by the attorney general as to form and by the governor as to sufficiency. The surety of such bond may be a bonding or surety company, in which case the premium shall be paid out of the appropriation made for the administration of this chapter. executive director. In the event a vacancy occurs in the office of ~~commissioner~~ executive director, the ~~secretary of the commissioner~~ associate director shall have all the duties and powers of the ~~commissioner~~ executive director until ~~a commissioner is appointed by the governor in accordance with section one of this article~~ an executive director or a temporary executive director is hired by the management council. The management council shall determine the amount of additional compensation the associate director may receive as acting executive director.
§23-1-8. Authority of executive director and employees as to oaths and evidence.
  The ~~commissioner, secretary~~ executive director, associate director and ~~every inspector or examiner~~ other employees appointed by the ~~commissioner shall~~ executive director may, for the purpose contemplated by this chapter, ~~have power to~~ administer oaths, certify official acts, take depositions, issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounts, papers, records, documents and testimony.
§23-1-9. Compelling compliance with order or subpoena.
  In case of failure or refusal of any person to comply with the order of the ~~commissioner~~ executive director, or subpoena issued by him or her, ~~his~~ ~~secretary~~ the associate director, or ~~one of his inspectors or examiners~~ duly appointed employee, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, or refusal to permit an inspection as aforesaid, the circuit judge of the county in which the person resides, on application of the ~~commissioner~~ executive director, associate director or any ~~inspector or examiner~~ duly appointed ~~by him~~ employee, shall compel obedience by attachment proceedings as for contempt, as in the case of disobedience of the requirements of a subpoena issued from ~~such~~ the court on a refusal to testify ~~therein~~ in the court.
§23-1-10. Fee of officer serving subpoena; fees and mileage of witnesses.
  Each officer who serves ~~such~~ subpoenas on behalf of the commission shall receive the same fee as a sheriff, and each witness who appears in obedience to a subpoena before the ~~commissioner~~ executive director, associate director or ~~an inspector, or an examiner~~ duly appointed employee, shall receive for his or her attendance the fees and mileage provided for witnesses in civil cases in the circuit court, which shall be audited and paid out of the workers' compensation fund in the same manner as other expenses are audited and paid, if ~~such~~ the witness was subpoenaed without the request of either claimant or employer at the instance of the ~~commissioner~~ executive director, associate director or ~~an inspector or an examiner~~ duly appointed employee. The witness fees and mileage of any witness subpoenaed by, or at the instance of, either claimant or employer shall be paid by the party who subpoenas ~~such~~ the witness.
§23-1-11. Depositions; investigations.
  (a) In an investigation into any matter arising under articles one through five, inclusive, of this chapter, the ~~division~~ commission may cause depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in the circuit court, but ~~such~~ the depositions shall be upon reasonable notice to claimant and employer or other affected persons or their respective attorneys. The ~~division~~ commission shall designate the person to represent it for the taking of ~~any such~~ the deposition.
  (b) The ~~division shall~~ commission also ~~have~~ has discretion to accept and consider depositions taken within or without the state by either the claimant or employer or other affected person, provided due and reasonable notice of the taking of ~~such~~ the depositions was given to the other parties or their attorneys, if any: Provided, That the ~~division~~ commission, upon due notice to the parties, ~~shall have~~ has authority to refuse or permit the taking of ~~such~~ depositions or to reject ~~such~~ the depositions after ~~the taking thereof~~ they are taken, if they were taken at ~~such~~ a place or under ~~such~~ circumstances as which imposed an undue burden or hardship upon the other parties.~~, and the division's~~ The commission's discretion to accept, refuse to approve or reject ~~such~~ the depositions ~~shall be~~ is binding in the absence of abuse of ~~such~~ the discretion.
§23-1-12. Copies of proceedings as evidence.
  A transcribed copy of the evidence and proceedings, or any specific part thereof, on any investigation or hearing, taken by a stenographer appointed by the ~~commissioner~~ executive director and certified and sworn to by ~~such~~ the stenographer to be a true and correct transcript of the testimony in the investigation or hearing, or of a particular witness, or of a specific part thereof, or to be a correct transcript of the proceedings had on ~~such~~ the investigation or hearing so purporting to be taken and subscribed, may be received in evidence by the ~~commissioner~~ executive director with the same effect as if ~~such~~ the stenographer were present and testified to the facts certified. A copy of ~~such~~ the transcript shall be furnished on demand to any party upon payment of the fee prescribed ~~therefor~~ in the rules and ~~regulations~~ policies of the ~~commissioner~~ commission. ~~such~~ The fee shall not to exceed that prescribed for transcripts in the circuit court.
§23-1-13. Rules of procedure and evidence; persons authorized to appear in proceedings; withholding of psychiatric and psychological reports and providing summaries thereof.
  (a) The workers' compensation ~~division~~ commission shall adopt reasonable and proper rules of procedure, regulate and provide for the kind and character of notices, and the service ~~thereof~~ of the notices, in cases of accident and injury to employees, the nature and extent of the proofs and evidence, the method of taking and furnishing ~~the same~~ of evidence to establish the rights to benefits or compensation from the fund hereinafter provided for, or directly from employers as hereinafter provided, as the case may require, and the method of making investigations, physical examinations and inspections, and prescribe the time within which adjudications and awards shall be made.
  (b) At hearings and other proceedings before the ~~division~~ commission or before the duly authorized representative of the ~~division~~ commission, an employer who is a natural person may appear, and a claimant may appear, only as follows:
  (1) By an attorney duly licensed and admitted to the practice of law in this state;
  (2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in another state or country or in the District of Columbia who has complied with the provisions of rule 8.0--admission pro hac vice, West Virginia supreme court rules for admission to the practice of law, as amended;
  (3) By a representative from a labor organization who has been recognized by the ~~division~~ commission as being qualified to represent a claimant or who is an individual otherwise found to be qualified by the ~~division~~ commission to act as a representative. ~~Such~~ The representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to ~~such~~ the facts and figures; or
  (4) Pro se.
  (c) At hearings and other proceedings before the ~~division~~ commission or before the duly authorized representative of the ~~division~~ commission, an employer who is not a natural person may appear only as follows:
  (1) By an attorney duly licensed and admitted to the practice of law in this state;
  (2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in another state or country or in the District of Columbia who has complied with the provisions of rule 8.0--admission pro hac vice, West Virginia supreme court rules for admission to the practice of law, as amended;
  (3) By a member of the board of directors of a corporation or by an officer of the corporation for purposes of representing the interest of the corporation in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to ~~such~~ the facts and figures; or
  (4) By a representative from an employer service company who has been recognized by the ~~division~~ commission as being qualified to represent an employer or who is an individual otherwise found to be qualified by the ~~division~~ commission to act as a representative. ~~Such~~ The representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to ~~such~~ the facts and figures.
  (d) The ~~division~~ commission or its representative may require an individual appearing on behalf of a natural person or corporation to produce satisfactory evidence that he or she is properly qualified and authorized to so appear pursuant to this section.
  (e) Subsections (b), (c) and (d) of this section shall not be construed as being applicable to proceedings before the office of judges pursuant to the provisions of article five of this chapter.
  (f) At the direction of a treating or evaluating psychiatrist or clinical doctoral level psychologist, a psychiatric or psychological report concerning a claimant who is receiving treatment or is being evaluated for psychiatric or psychological problems may be withheld from the claimant. In that event, a summary of the report shall be compiled by the reporting psychiatrist or clinical doctoral level psychologist ~~which~~. The summary shall be provided to the claimant upon his or her request. Any representative or attorney of the claimant must agree to provide ~~such a~~ the claimant with only the summary before the full report ~~shall be~~ is provided to the representative or attorney for his or her use in preparing the claimant's case. ~~Such a~~ The report shall only be withheld from the claimant in those instances where the treating or evaluating psychiatrist or clinical doctoral level psychologist certifies that exposure to the contents of the full report is likely to cause serious harm to the claimant or is likely to cause the claimant to pose a serious threat of harm to a third party.
  (g) In any matter arising under articles one through five, inclusive, of this chapter in which the ~~division~~ commission is required to give notice to a party, if a party is represented by an attorney or other representative, then notice to the attorney or other representative ~~shall be~~ is sufficient notice to the party so represented.
§23-1-14. Forms.
  The ~~commissioner~~ commission shall prepare and furnish free of cost ~~blank~~ forms (and provide in his or her rules for their distribution so that ~~the same~~ they may be readily available) of applications for benefits for compensation from the workers' compensation fund, or directly from employers, as the case may be, notices to employers, proofs of injury or death, of medical attendance, of employment and wage earnings, and ~~such~~ any other ~~blanks~~ forms ~~as may be deemed~~ considered proper and advisable. ~~and it shall be~~ It is the duty of employers to constantly keep on hand a sufficient supply of ~~such blanks~~ the forms.
§23-1-15. Procedure before commission.
  The ~~commissioner shall~~ commission is not be bound by the usual common-law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in ~~such~~ a manner as that in his or her judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this chapter.
§23-1-17. Annual report by commission and occupational pneumoconiosis board.
  Annually, on or about the fifteenth day of September in each year, the ~~commissioner~~ executive director and the occupational pneumoconiosis board shall make a report as of the thirtieth day of June addressed to the governor, which shall include a statement of the causes of the injuries for which the awards were made, an explanation of the diagnostic techniques used by the occupational pneumoconiosis board and all examining physicians to determine the presence of disease, the extent of impairment attributable thereto, a description of the scientific support for ~~such~~ the diagnostic techniques and a summary of public and private research relating to problems and prevention of occupational diseases. The report shall include a detailed statement of all disbursements, and the condition of the fund, together with any specific recommendations for improvements in the workers' compensation law and for more efficient and responsive administration ~~thereof~~ of the workers' compensation law, which the ~~commissioner may consider~~ executive director considers appropriate. Copies of all annual reports shall be filed with the secretary of state and shall be made available to the Legislature and to the public at large.
§23-1-18. Commission employees not subject to subpoena for workers' compensation hearings.
  No employee of the workers' compensation ~~division~~ commission shall be compelled to testify as to the basis, findings or reasons for any decision or order rendered by the employee under this chapter in any hearing conducted pursuant to article five of this chapter.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.
§23-2-1. Employers subject to chapter; elections not to provide certain coverages; notices; filing of business registration certificates.
  (a) The state of West Virginia and all governmental agencies or departments created by it, including county boards of education, political subdivisions of the state, any volunteer fire department or company and other emergency service organizations as defined by article five, chapter fifteen of this code, and all persons, firms, associations and corporations regularly employing another person or persons for the purpose of carrying on any form of industry, service or business in this state, are employers within the meaning of this chapter and are ~~hereby~~ required to subscribe to and pay premium taxes into the workers' compensation fund for the protection of their employees and ~~shall be~~ are subject to all requirements of this chapter and all rules ~~and regulations~~ prescribed by the workers' compensation ~~division~~ commission with reference to rate, classification and premium payment: Provided, That ~~such~~ rates will be adjusted by the ~~division~~ commission to reflect the demand on the compensation fund by the covered employer.
  (b) The following employers are not required to subscribe to the fund, but may elect to do so:
  (1) Employers of employees in domestic services; or
  (2) Employers of five or fewer full-time employees in agricultural service; or
  (3) Employers of employees while ~~said~~ the employees are employed without the state except in cases of temporary employment without the state; or
  (4) Casual employers. An employer is ~~deemed to be~~ a casual employer when the number of his or her employees does not exceed three and the period of employment is temporary, intermittent and sporadic in nature and does not exceed ten calendar days in any calendar quarter; or
  (5) Churches; or
  (6) Employers engaged in organized professional sports activities, including employers of trainers and jockeys engaged in thoroughbred horse racing; or
  (7) Any volunteer rescue squad or volunteer police auxiliary unit organized under the auspices of a county commission, municipality or other government entity or political subdivision; volunteer organizations created or sponsored by government entities, political subdivisions or, area or regional emergency medical services boards of directors in furtherance of the purposes of the emergency medical services act of article four-c, chapter sixteen of this code: Provided, That ~~should~~ if any of the employers described in this subdivision have paid employees ~~then~~ to the extent of those paid employees, the employer ~~must~~ shall subscribe to and pay premium taxes into the workers' compensation fund based upon the gross wages of the paid employees but with regard to the volunteers, ~~such~~ the coverage remains optional; or
  (c) Notwithstanding any other provision of this chapter to the contrary, whenever there are churches in a circuit which employ one individual clergyman and the payments to ~~such~~ the clergyman from ~~such~~ the churches constitute his or her full salary, such circuit or group of churches may elect to be considered a single employer for the purpose of premium payment into the workers' compensation fund.
  (d) Employers who are not required to subscribe to the workers' compensation fund may voluntarily choose to subscribe to and pay premiums into the fund for the protection of their employees and in ~~such~~ that case ~~shall be~~ are subject to all requirements of this chapter and all rules and regulations prescribed by the ~~division~~ commission with reference to rates, classifications and premium payments and shall afford to them the protection of this chapter, including section six of this article, but the failure of ~~such~~ the employers to choose to subscribe to and to pay premiums into the fund shall not impose any liability upon them other than ~~such~~ any liability as that would exist notwithstanding the provisions of this chapter.
  (e) Any foreign corporation employer whose employment in this state is to be for a definite or limited period which could not be considered "regularly employing" within the meaning of this section may choose to pay into the workers' compensation fund the premiums ~~herein~~ provided for in this section, and at the time of making application to the workers' compensation ~~division such~~ commission, the employer shall furnish a statement under oath showing the probable length of time the employment will continue in this state, the character of the work, an estimate of the monthly payroll and any other information which may be required by the ~~division~~ commission. At the time of making application ~~such~~ the employer shall deposit with the ~~division~~ commission to the credit of the workers' compensation fund the amount required by section five of this article~~, which~~. That amount shall be returned to the employer if the employer's application be is rejected by the ~~division~~ commission. Upon notice to ~~such~~ the employer of the acceptance of his or her application by the ~~division~~ commission, he or she ~~shall be~~ is an employer within the meaning of this chapter and subject to all of its provisions.
  (f) Any foreign corporation employer choosing to comply with the provisions of this chapter and to receive the benefits ~~hereunder~~ under this chapter shall, at the time of making application to the ~~division~~ commission in addition to other requirements of this chapter, furnish the ~~division~~ commission with a certificate from the secretary of state, where ~~such~~ the certificate is necessary, showing that it has complied with all the requirements necessary to enable it legally to do business in this state and no application of ~~such~~ a foreign corporation employer shall be accepted by the ~~division~~ commission until ~~such~~ the certificate is filed.
  (g) The following employers may elect not to provide coverage to certain of their employees under the provisions of this chapter:
  (1) Employers of employees who are officers of and stockholders in a corporation qualifying for special tax treatment under subchapter S of the Internal Revenue Code of the United States may elect not to provide coverage to such employees or Any political subdivision of the state including county commissions and municipalities, boards of education, or emergency services organizations organized under the auspices of a county commission may elect not to provide coverage to any elected official. The election not to provide coverage does not apply to appointed individuals, or to any other employees of the political subdivision;
  (2) If an employer is a partnership, sole proprietorship, association or corporation, ~~such~~ the employer may elect not to include as an "employee" within this chapter, any member of ~~such~~ the partnership, the owner of the sole proprietorship or any corporate officer or member of the board of directors of the association or corporation. The officers of a corporation or an association ~~shall consist~~ consist of a president, a vice president, a secretary and a treasurer, each of whom ~~shall be~~ is elected by the board of directors at ~~such~~ the time and in ~~such~~ the manner ~~as may be~~ prescribed by the bylaws. ~~Such other~~ Other officers and assistant officers ~~as may be deemed~~ that are considered necessary may be elected or appointed by the board of directors or chosen in ~~such~~ any other manner ~~as may be~~ prescribed by the bylaws and, if so elected, appointed or chosen, ~~such~~ the employer may elect not to include ~~any such~~ the officer or assistant officer as an "employee" within the meaning of this chapter: Provided, That except for those persons who are members of the board of directors or who are the corporation's or association's president, vice president, secretary and treasurer and who may be excluded by reason of their ~~aforementioned~~ positions from the benefits of this chapter even though their duties, responsibilities, activities or actions may have a dual capacity of work which is ordinarily performed by an officer and also of work which is ordinarily performed by a worker, an administrator or an employee who is not an officer, no ~~such~~ other officer or assistant officer who is elected or appointed shall be excluded by election from coverage or be denied the benefits of this chapter merely because he or she is ~~such~~ an officer or assistant officer if, as a matter of fact:
  (A) He or she is engaged in a dual capacity of having the duties and responsibilities for work ordinarily performed by an officer and also having duties and work ordinarily performed by a worker, administrator or employee who is not an officer;
  (B) He or she is engaged ordinarily in performing the duties of a worker, an administrator or an employee who is not an officer and receives pay ~~therefor~~ for performing the duties in the capacity of an employee; or
  (C) If He or she is engaged in an employment palpably separate and distinct from his or her official duties as an officer of the association or corporation.
  (h) In the event of election under subsection (g) of this section, the employer shall serve upon the ~~division~~ commission written notice naming the positions not to be covered and shall not include ~~such~~ the "employee's" remuneration for premium purposes in all future payroll reports, and ~~such~~ the partner, proprietor or corporate or executive officer ~~shall~~ is not ~~be deemed~~ considered an employee within the meaning of this chapter after ~~such~~ the notice has been served. Notwithstanding the provisions of subsection (g), section five of this article, if an employer has not subscribed to the fund even though it is obligated to do so under the provisions of this article, ~~then~~ any ~~such~~ partner, proprietor or corporate or executive officer shall not be covered and shall not receive the benefits of this chapter.
  (i) "Regularly employing" or "regular employment" ~~shall mean~~ means employment by an employer which is not a casual employer under this section.
§23-2-1c. Extraterritorial coverage; approval and change of agreements.
  (a) Whenever, with respect to an employee of an employer who is a subscriber in good standing to the workers' compensation fund or an employer who has elected to pay compensation directly, as provided in section nine of this article, there is a possibility of conflict with respect to the application of workers' compensation laws because the contract of employment is entered into and all or some portion of the work is performed or is to be performed in a state or states other than this state, the employer and the employee may agree to be bound by the laws of this state or by the laws of ~~such~~ any other state in which all or some portion of the work of the employee is to be performed: Provided, That the ~~commissioner shall have the authority to~~ executive director may review and accept or reject ~~any such~~ the agreement. ~~Any such~~ The review shall be conducted in keeping with the ~~commissioner's~~ executive director's fiduciary obligations to the workers' compensation fund which may include, among other things, the nexus of the employer and the employee to the state: Provided, however, That nothing in this section shall be construed so as to require ~~such~~ an agreement in those instances where subdivision (3), subsection (b), section one of this article or subdivision (1), subsection (a), section one-a of this article are applicable. ~~Such agreement shall~~ All agreements shall be in writing and filed with the ~~commissioner~~ executive director within ten days after execution ~~thereof~~ of the agreement but shall not become effective until approved by the ~~commissioner~~ executive director and shall, thereafter, remain in effect until terminated or modified by agreement of the parties similarly filed or by order of the ~~commissioner~~ executive director. If the parties agree to be bound by the laws of this state, an employee injured within the terms and provisions of this chapter ~~shall be~~ is entitled to benefits under this chapter regardless of the situs of the injury or exposure to occupational pneumoconiosis or other occupational disease, and the rights of the employee and his or her dependents under the laws of this state shall be the exclusive remedy against the employer on account of injury, disease or death in the course of and as a result of the employment.
  (b) If the parties agree to be bound by the laws of another state and the employer has complied with the laws of that state, the rights of the employee and his or her dependents under the laws of that state shall be the exclusive remedy against the employer on account of injury, disease or death in the course of and as a result of the employment without regard to the situs of the injury or exposure to occupational pneumoconiosis or other occupational disease.
  (c) If the employee is a resident of a state other than this state and is subject to the terms and provisions of the workers' compensation law or similar laws of a state other than this state, ~~such~~ the employee and his or her dependents ~~shall not be~~ are not entitled to the benefits payable under this chapter on account of injury, disease or death in the course of and as a result of employment temporarily within this state, and the rights of ~~such~~ the employee and his or her dependents under the laws of ~~such~~ the other state shall be the exclusive remedy against the employer on account of ~~such~~ any injury, disease or death.
  (d) If any employee or his or her dependents be are awarded workers' compensation benefits or recover damages from the employer under the laws of another state for an injury received in the course of and resulting from the employment, the amount so awarded or recovered, whether paid or to be paid in future installments, shall be credited against the amount of any benefits payable under this chapter for the same injury.
§23-2-1d. Primary contractor liability; definitions; applications and exceptions; certificates of good standing; reimbursement and indemnification; termination of contracts; effective date; collections efforts.
  (a) For the exclusive purposes of this section, the term "employer" as defined in section one of this article ~~shall include~~ includes any primary contractor who regularly subcontracts with other employers for the performance of any work arising from or as a result of the primary contractor's own contract: Provided, That a subcontractor ~~shall~~ does not include one providing goods rather than services. For purposes of this subsection, extraction of natural resources is a provision of services. In the event that ~~such~~ a subcontracting employer defaults on its obligations to make payments to the ~~commissioner~~ commission, then ~~such~~ the primary contractor ~~shall be~~ is liable for ~~such~~ the payments. ~~Notwithstanding the foregoing~~ However, nothing contained in this section shall extend or except to ~~such~~ a primary contractor or subcontractors the provisions of section six, six-a or eight of this article. This section is applicable only with regard to subcontractors with whom the primary contractor has a contract for any work or services for a period longer than thirty days: Provided, however, That this section ~~shall also be~~ is also applicable to contracts for consecutive periods of work that total more than thirty days. It is not applicable to the primary contractor with regard to sub-subcontractors. However, a subcontractor for the purposes of a contract with the primary contractor can itself become a primary contractor with regard to other employers with whom it subcontracts. It is the intent of the Legislature that no contractor, whether a primary contractor, subcontractor or sub-subcontractor escape or avoid liability for any workers' compensation premium, assessment or tax. The executive director shall promulgate a rule to effectuate this purpose on or before the thirty-first day of December, two thousand three.
  (b) A primary contractor may avoid initial liability under subsection (a) of this section if it obtains from the ~~commissioner~~ executive director, prior to the initial performance of any work by the subcontractor's employees, a certificate that the subcontractor is in good standing with the workers' compensation fund.
  (1) Failure to obtain the certificate of good standing prior to the initial performance of any work by the subcontractor ~~shall result~~ results in the primary contractor being equally liable with the subcontractor for all delinquent and defaulted premium taxes, premium deposits, interest and other penalties arising during the life of the contract or due to work performed in furtherance of the contract: Provided, That the ~~division~~ ~~shall be~~ commission is entitled to collect only once for the amount of premiums, premium deposits and interest due to the default, but the ~~division~~ commission may impose other penalties on the primary contractor or on the subcontractor, or both.
  (2) In order to continue avoiding liability under this section, the primary contractor shall request that the ~~commissioner of the bureau of employment programs~~ commission inform the primary contractor of any subsequent default by the subcontractor. In the event that the subcontractor does default, the ~~commissioner~~ commission shall ~~then~~ notify the primary contractor of the default by placing a notice in the first-class United States mail, postage prepaid, and addressed to the primary contractor at the address furnished to the ~~commissioner~~ commission by the primary contractor. ~~Such~~ The mailing ~~shall be~~ is good and sufficient notice to the primary contractor of the subcontractor's default. However, the primary contractor ~~shall~~ is not ~~become~~ liable under this section until the first day of the calendar quarter following the calendar quarter in which the notice is given and then ~~such~~ the liability ~~shall~~ is only be for that following calendar quarter and thereafter and only if the subcontract has not been terminated: Provided, That the ~~commissioner shall be~~ commission is entitled to collect only once for the amount of premiums, premium deposits and interest due to the default, but the ~~commissioner~~ commission may impose other penalties on the primary contractor or on the subcontractor, or both.
  (c) In any situation where a subcontractor defaults with regard to its payment obligations under this chapter or fails to provide a certificate of good standing as provided for in this section, ~~such~~ the default or failure ~~shall be~~ is good and sufficient cause for a primary contractor to hold the subcontractor responsible and to seek reimbursement or indemnification for any amounts paid on behalf of the subcontractor to avoid or cure a workers' compensation default, plus related costs including reasonable attorneys' fees, and to terminate its subcontract with the subcontractor notwithstanding any provision to the contrary in the contract.
  (d) The provisions of this section are applicable only to those contracts entered into or extended on or after the first day of January, one thousand nine hundred ninety-four.
  (e) The ~~division~~ commission may take any action authorized by section five-a of this article in furtherance of its efforts to collect amounts due from the primary contractor under this section.

§23-2-2. Commission to be furnished information by employers, state tax commissioner and division of unemployment compensation; secrecy of information; examination of employers, etc.; violation a misdemeanor.

  (a) Every employer shall furnish the ~~commissioner~~ executive director, upon request, all information required by him or her to carry out the purposes of this chapter. The ~~commissioner~~ executive director, or any person employed by the ~~commissioner~~ commission for that purpose, ~~shall have the right to~~ may examine under oath any employer or officer, agent or employee of any employer.
  (b) Notwithstanding the provisions of any other statute, specifically, but not exclusively, sections five and five-b, article ten, chapter eleven of this code, and section eleven, article ten, chapter twenty-one-a of this code the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission may receive the following information:
  (1) Upon written request to the state tax commissioner: The names, addresses, places of business and other identifying information of all businesses receiving a business franchise registration certificate and the dates thereof; and the names and social security numbers or other tax identification numbers of the businesses and of the businesses' workers and employees, if otherwise collected, and the quarterly and annual gross wages or other compensation paid to the workers and employees of ~~such~~ businesses reported pursuant to the requirement of withholding of tax on income.
  (2) Upon written application to the division of unemployment compensation: In addition to the information that may be released to the ~~division of~~ workers' compensation commission for the purposes of this chapter under the provisions of chapter twenty-one-a of this code, the names, addresses and other identifying information of all employing units filing reports and information pursuant to section eleven, article ten, chapter twenty-one-a of this code as well as information contained in those reports regarding the number and names, addresses and social security numbers of employees employed and the gross quarterly wages paid by each employing unit to each identified employee.
  (c) All information acquired by the ~~division of~~ workers' compensation commission pursuant to subsection (b) of this section shall be used only for auditing premium payments, assisting in the determination of employment status and registering businesses under the single point of registration program as defined in section two, article one, chapter eleven of this code. The ~~division of~~ workers' compensation commission, upon receiving the business franchise registration certificate information made available pursuant to subsection (b) of this section, shall contact all businesses receiving a business franchise registration certificate and provide all necessary forms to register the business under the provisions of this article. Any officer or employee of this state who uses the ~~aforementioned~~ information obtained under this section in any manner other than the one stated ~~herein~~ in this section or elsewhere authorized in this code, or who divulges or makes known in any manner any of the ~~aforementioned~~ information obtained under this section, ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or ~~imprisoned~~ incarcerated in the county or regional jail for not more than one year, or both, together with cost of prosecution.
  (d) Reasonable costs of compilation and production of any information made available pursuant to subsection (b) of this section shall be charged to the ~~division of~~ workers' compensation commission.
  (e) Information acquired by the ~~commissioner~~ commission pursuant to subsection (b) of this section ~~shall~~ is not be subject to disclosure under the provisions of chapter twenty-nine-b of this code.
§23-2-3. Report forms and other forms for use of employers.
  The ~~division~~ commission shall prepare and furnish report forms for the use of employers subject to this chapter. Every employer receiving from the ~~division~~ commission any form or forms with direction for completion and returning to the ~~division~~ commission shall return the ~~same~~ form, within the period fixed by the ~~division~~ commission, completed so as to answer fully and correctly all pertinent questions ~~therein propounded~~ in the form, and if unable to do so, shall give good and sufficient reasons for ~~such~~ the failure. Every employer subject to the provisions of this chapter, shall make application to the ~~division~~ commission on the forms prescribed by the ~~division~~ commission for ~~such~~ that purpose; and any employer who ~~shall terminate~~ terminates his or her business or for any other reason is no longer subject to this chapter shall so notify the ~~division~~ commission on forms to be furnished by the ~~division~~ commission for that purpose.

§23-2-4. Classification of industries; rate of premiums; authority to adopt various systems; accounts.

  (a) The ~~commissioner in conjunction with the compensation programs performance council is authorized to,~~ executive director with approval of the management council is authorized to establish by rule a system for determining the classification and distribution into classes of employers subject to this chapter, a system for determining rates of premium taxes applicable to employers subject to this chapter, a system of multiple policy options with criteria for subscription ~~thereto~~ and criteria for an annual employer's statement providing both benefits liability information and rate determination information.
  (1) In addition, the rule shall provide for, but not be limited to:
  (A) Rate adjustments by industry or individual employer, including merit rate adjustments;
  (B) Notification regarding rate adjustments prior to the quarter in which the rate adjustments will be in effect;
  (C) Chargeability of claims; and
  (D) ~~Such~~ Any further matters that are necessary and consistent with the goals of this chapter;
  (2) The rule shall be consistent with the duty of the ~~commissioner and the compensation programs performance council~~ executive director and the management council to fix and maintain the lowest possible rates of premium taxes consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in ~~such fund~~ the funds and in keeping with their fiduciary obligations to the fund;
  (3) The rule shall be consistent with generally accepted accounting principles;
  (4) The rule shall be consistent with classification and rate-making methodologies found in the insurance industry; and
  (5) The rule shall be consistent with the principles of promoting more effective workplace health and safety programs as contained in article two-b of this chapter.
  (b) Notwithstanding any other provision of this chapter to the contrary, the compensation programs performance council may elect to premise its premium tax determination methodology on the aggregate number of hours worked by employees of the employer rather than upon the gross wages of the employer. Such an election may apply to all industrial classifications or to less than all. If this election is made, then in all instances in which this chapter refers to gross wage reports for the purpose of premium tax determination such references shall be taken to mean a report of the number of hours so worked.
  (c) The rule authorized by subsection (a) of this section shall be promulgated on or before the first day of July, one thousand nine hundred ninety-six. Until the rule is finally promulgated, the prior provisions of this section, as found in chapter one hundred seventy-one of the acts of the Legislature, one thousand nine hundred ninety-three, shall remain in effect.
  ~~(d)~~ (b) In accordance with generally accepted accounting principles, the workers' compensation ~~division~~ commission shall keep an accurate accounting of all money or moneys earned, due and received by the workers' compensation fund and of the liability incurred and disbursements made against the ~~same~~ fund; and an accurate account of all money or moneys earned, due and received from each individual subscriber and of the liability incurred and disbursements made against the same.
  (c) Prospective rates set in accordance with the provisions of this article shall at all times be financially sound in accordance with generally accepted accounting principles and fully fund the prospective claim obligations for the year in which the rates were made. Rates, surcharges or assessments for payments required on claims transferred to the deficit management fund shall be fair and equitable, financially sound in accordance with generally accepted accounting principles and sufficient to meet the payment obligations of the fund.
__(d) On or after the first day of July, two thousand three, the management council may use the moneys in the deficit management fund created pursuant to section one-b, article three of this chapter to offset employer premiums surcharges or assessments that would otherwise be required.
__(e) Unless otherwise provided in this chapter, effective the first day of July, two thousand three, for fiscal years two thousand four and two thousand five, base rates, assessments and surcharges shall not be increased more than fifteen percent per year.

§23-2-5. Application; payment of premium taxes; gross wages; payroll report; deposits; delinquency; default; reinstatement; payment of benefits; notice to employees; criminal provisions; penalties.

  (a) For the purpose of creating a workers' compensation fund, each employer who is required to subscribe to the fund or who elects to subscribe to the fund shall pay premium taxes calculated as a percentage of the employer's gross wages payroll as defined by the commission at the rate determined by the ~~workers' compensation division~~ commission and then in effect plus any additional premium taxes developed from rates, surcharges, or assessments as determined by the commission for funding of payments to the deficit management fund. At the time each employer subscribes to the fund, the application required by the ~~division~~ commission shall be filed and a premium deposit equal to the first quarter's estimated premium tax payment shall be remitted. The minimum quarterly premium to be paid by any employer ~~shall be~~ is twenty-five dollars.
  (1) Thereafter, the premium taxes shall be paid quarterly on or before the last day of the month following the end of the quarter, and shall be the prescribed percentage of the entire gross wages of all employees, from which net payroll is calculated and paid, during the preceding quarter. The ~~division~~ commission may ~~permit~~ require employers~~, who qualify under~~ in accordance with the provisions of rules promulgated by the ~~compensation programs performance council~~ executive director and approved by the council, to report gross wages and pay premium taxes monthly or at other intervals.
  (2) Every subscribing employer shall make a gross wages payroll report to the ~~division~~ commission for the preceding reporting period. The report shall be on the form or forms prescribed by the ~~division~~ commission and shall contain all information required by the ~~division~~ commission.
  (3) After subscribing to the fund, each employer shall remit with each premium tax payment an amount calculated to be sufficient to maintain a premium deposit equal to the premium payment for the previous reporting period. The ~~division~~ commission may reduce the amount of the premium deposit required from seasonal employers for those quarters during which employment is significantly reduced. If the employer pays premium tax on a basis other than quarterly, the ~~division~~ commission may require the deposit to be based upon some other time period. The premium deposit shall be credited to the employer's account on the books of the ~~division~~ commission and used to pay premium taxes and any other sums due the fund when an employer becomes delinquent or in default as provided in this article.
  (4) All premium taxes and premium deposits required by this article to be paid shall be paid by the employers to the ~~division~~ commission, which shall maintain a record of all sums so received. Any ~~such~~ sum mailed to the ~~division shall be deemed~~ commission is considered to be received on the date the envelope transmitting it is postmarked by the United States postal service. All sums received by the ~~division~~ commission shall be deposited in the state treasury to the credit of the workers' compensation ~~division~~ commission in the manner now prescribed by law.
  (5) The ~~division may~~ commission shall encourage employer efforts to create and maintain safe workplaces, to encourage loss prevention programs and to encourage employer-provided wellness programs, through the normal operation of the experience rating formula, seminars and other public presentations, the development of model safety programs and other initiatives as may be determined by the ~~commissioner and the compensation programs performance council~~ executive director and the management council.
  (b) Failure of an employer to timely pay premium taxes as provided for in subsection (a) of this section, to timely file a payroll report or to maintain an adequate premium deposit shall cause the employer's account to become delinquent. No employer will be declared delinquent or be assessed any penalty ~~therefor~~ for the delinquency if the ~~division~~ commission determines that ~~such~~ the delinquency has been caused by delays in the administration of the fund. The ~~division~~ commission shall, in writing, within sixty days of the end of each quarter notify all delinquent employers of their failure to timely pay premium taxes, to timely file a payroll report or to maintain an adequate premium deposit. Each employer who ~~shall fail~~ fails to timely file any ~~quarterly~~ payroll report or timely pay the premium tax due with ~~such~~ the report, or both, for any quarter commencing on and after the first day of July, one thousand nine hundred ninety-five, shall pay a late reporting or payment penalty of the greater of fifty dollars or a sum obtained by multiplying the premium tax due with ~~such~~ the report by the penalty rate applicable to that quarter. The penalty rate to be used in a workers' compensation ~~division's~~ commission's fiscal year ~~shall be~~ is calculated annually on the first day of each fiscal year. The penalty rate used to calculate the penalty for each quarter in a fiscal year is the quotient, rounded to the nearest higher whole number percentage rate, obtained by dividing the sum of the prime rate plus four percent by four. The prime rate ~~shall be~~ is the rate published in the Wall Street Journal on the last business day of the ~~division's~~ commission's prior fiscal year reflecting the base rate on corporate loans posted by at least seventy-five percent of the nation's thirty largest banks. ~~Such~~ The late penalty shall be paid with the most recent quarter's report and payment and is due when that quarter's report and payment are filed. If ~~such~~ the late penalty is not paid when due, ~~the same~~ it may be charged to and collected by the ~~division~~ commission from the employer's premium deposit account or otherwise as provided for by law. The notification shall demand the filing of the delinquent payroll report and payment of delinquent premium taxes, the penalty for late reporting or payment of premium taxes or premium deposit, the interest penalty and an amount sufficient to maintain the premium deposit before the end of the third month following the end of the preceding quarter. Interest shall accrue and be charged on the delinquent premium payment and premium deposit pursuant to section thirteen of this article.
  (c) Whenever the ~~division~~ commission notifies an employer of the delinquent status of its account, the notification shall explain the legal consequence of subsequent default by an employer required to subscribe to the fund and the legal consequences of termination of an electing employer's account.
  (d) Failure by the employer, who is required to subscribe to the fund and who fails to resolve the delinquency within the prescribed period, shall place the account in default and shall deprive ~~such~~ the default employer of the benefits and protection afforded by this chapter, including section six of this article, and the employer ~~shall be~~ is liable as provided in section eight of this article. The default employer's liability under ~~said~~ these sections ~~shall be~~ is retroactive to midnight of the last day of the month following the end of the quarter for which the delinquency occurs. The ~~division~~ commission shall notify the default employer of the method by which the employer may be reinstated with the fund. The ~~division~~ commission shall also notify the employees of ~~such~~ the employer by written notice as hereinafter provided for in this section.
  (e) Failure by any employer, who voluntarily elects to subscribe, to resolve the delinquency within the prescribed period shall place the account in default and shall automatically terminate the election of ~~such~~ the employer to pay into the workers' compensation fund and shall deprive ~~such~~ the employer and the employees of the default elective employer of the benefits and protection afforded by this chapter, including section six of this article, and ~~such~~ the employer ~~shall be~~ is liable as provided in section eight of this article. The default employer's liability under ~~said~~ that section ~~shall be~~ is retroactive to midnight of the last day of the month following the end of the quarter for which the delinquency occurs. Employees who were the subject of the default employer's voluntary election to provide them the benefits afforded by this chapter shall have ~~such~~ the protection terminated at the time of their employer's default.
  (f)(1) Except as provided for in subdivision (3) of this subsection, any employer who is required to subscribe to the fund and who is in default on the effective date of this section or who subsequently defaults, and any employer who has elected to subscribe to the fund and who defaults and whose account is terminated prior to the effective date of this section or whose account is subsequently terminated, shall be restored immediately to the benefits and protection of this chapter only upon the filing of all delinquent payroll and other reports required by the ~~division~~ commission and payment into the fund of all unpaid premiums, an adequate premium deposit, accrued interest and the penalty for late reporting and payment. Interest ~~shall be~~ is calculated as provided for by section thirteen of this article.
  The ~~division~~ commission shall not have the authority to waive either premium or accrued interest. The provisions of section seventeen of this article apply to any action or decision of the ~~division~~ commission under this section.
  (2) The ~~division shall have the authority to~~ commission may restore a defaulted or terminated employer through a reinstatement agreement. ~~Such~~ The reinstatement agreement shall require the payment in full of all premium taxes, premium deposits, the penalty for late reporting and payment, past accrued interest and future interest calculated pursuant to the provisions of section thirteen of this article. Notwithstanding the filing of a reinstatement application or the entering into of a reinstatement agreement, the ~~division~~ commission is authorized to file a lien against the employer as provided by section five-a of this article. In addition, entry into a reinstatement agreement is discretionary with the ~~division~~ commission. ~~Such~~ Its discretion shall be exercised in keeping with the fiduciary obligations owed to the workers' compensation fund. ~~Should~~ If the ~~division decline~~ commission declines to enter into a reinstatement agreement and ~~should~~ if the employer does not comply with the provisions of subdivision (1) of this subsection, ~~then~~ the ~~division~~ commission may proceed with any of the collection efforts provided for by section five-a of this article or as otherwise provided for by this code. Applications for reinstatement shall: (A) Be made upon forms prescribed by the ~~division~~ commission; (B) include a report of the gross wages payroll of the employer which had not been reported to the ~~division~~ commission during the entire period of delinquency and default~~, which~~ . The gross wages information shall be certified by the employer or its authorized agent; and (C) include a payment of a portion of the liability equal to one half of one percent of the gross payroll during the period of delinquency and default or equal to another portion of the liability ~~as may be~~ determined~~, from time to time,~~ by rule but not to exceed the amount of the entire liability due and owing for the period of delinquency and default. An employer who applies for reinstatement ~~shall be~~ is entitled to the benefits and protection of this chapter on the day a properly completed and acceptable application which is accompanied by the application payment is received by the ~~division~~ commission: Provided, That if the ~~division~~ commission reinstates an employer subject to the terms of a reinstatement agreement, the subsequent failure of the employer to make scheduled payments or to pay accrued or future interest in accordance with the reinstatement agreement or to timely file current ~~quarterly~~ reports and to pay current ~~quarterly~~ premiums within the month following the end of the ~~quarter~~ period for which the report and payment are due, or to otherwise maintain its account in good standing or, if the reinstatement agreement does not require earlier restoration of the premium deposit, to restore the premium deposit to the required amount by the end of the repayment period shall cause the reinstatement application and the reinstatement agreement to be null, void and of no effect, and the employer ~~shall be~~ is denied the benefits and protection of this chapter effective from the date that ~~such~~ the employer's account originally became delinquent.
  (3) Any employer who fails to maintain its account in good standing with regard to subsequent premium taxes and premium deposits after filing an application for reinstatement and prior to the final resolution of an application for reinstatement by entering into a reinstatement agreement or by payment of the liability in full as provided for in subdivision (1) of this subsection shall cause the reinstatement application to be null, void and of no effect, and the employer shall be denied the benefits and protection of this chapter effective from the date that ~~such~~ the employer's account originally became delinquent.
  (4) Following any failure of an employer to comply with the provisions of a reinstatement agreement, the ~~division~~ commission may ~~then~~ make and continue with any of the collection efforts provided for by this chapter or elsewhere in this code even if the employer files another reinstatement application.
  (g) With the exception noted in subsection (h), section one of this article, no employee of an employer required by this chapter to subscribe to the workers' compensation fund shall be denied benefits provided by this chapter because the employer failed to subscribe or because the employer's account is either delinquent or in default.
  (h)(1) The provisions of this section shall not deprive any individual of any cause of action which has accrued as a result of an injury or death which occurred during any period of delinquency not resolved in accordance with the provisions of this article, or subsequent failure to comply with the terms of the repayment agreement.
  (2) Upon withdrawal from the fund or termination of election of any employer, the employer shall be refunded the balance due the employer of its deposit, after deducting all amounts owed by the employer to the workers' compensation fund and other agencies of this state, and the ~~division~~ commission shall notify the employees of ~~such~~ the employer of ~~said~~ the termination in ~~such~~ the manner as the ~~division~~ commission may ~~deem~~ consider best and sufficient.
  (3) Notice to employees ~~in this section~~ provided for in this section shall be given by posting written notice that the employer is defaulted under the compensation law of West Virginia, and in the case of employers required by this chapter to subscribe and pay premiums to the fund, that the defaulted employer is liable to its employees for injury or death, both in workers' compensation benefits and in damages at common law or by statute; and in the case of employers not required by this chapter to subscribe and pay premiums to the fund, but voluntarily electing to do so as ~~herein~~ provided in this article, that neither the employer nor the employees ~~of such employer~~ are protected by ~~said laws~~ the law as to any injury or death sustained after the date specified in ~~said~~ the notice. ~~Such~~ The notice shall be in the form prescribed by the ~~division~~ commission and shall be posted in a conspicuous place at the chief works of the employer, as ~~the same appear~~ it appears in records of the ~~division~~ commission. If ~~said~~ the chief works of the employer cannot be found or identified, ~~then said~~ the notices shall be posted at the front door of the courthouse of the county in which ~~said~~ the chief works are located, according to the ~~division's~~ commission's records. Any person who shall, prior to the reinstatement of ~~said~~ the employer, as ~~hereinbefore~~ provided for in this section, or prior to sixty days after the posting of ~~said~~ the notice, whichever shall first occur, remove, deface or render illegible ~~said~~ the notice, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined one thousand dollars~~, and said~~. The notice shall state this provision upon its face. The ~~division~~ commission may require any sheriff, deputy sheriff, constable or other official of the state of West Virginia, ~~who may be~~ authorized to serve civil process, to post ~~such~~ the notice and to make return thereof of the fact of ~~such~~ the posting to the ~~division~~ commission.~~, and any~~ Any failure of ~~such~~ the officer to post any notice within ten days after he or she ~~shall have~~ has received the ~~same~~ notice from the ~~division~~ commission, without just cause or excuse, ~~shall constitute~~ constitutes a willful failure or refusal to perform a duty required of him or her by law within the meaning of section twenty-eight, article five, chapter sixty-one of this code. Any person actually injured by reason of ~~such~~ the failure ~~shall have~~ has an action against ~~said~~ the official, and upon any official bond he or she may have given, for ~~such~~ the damages as ~~such~~ the person may actually have incurred, but not to exceed, in the case of any surety upon ~~said~~ the bond, the amount of the penalty of ~~said~~ the bond. Any official posting ~~said~~ the notice as ~~herein~~ required ~~shall be~~ in this subdivision is entitled to the same fee as is now or may hereafter be provided for the service of process in suits instituted in courts of record in the state of West Virginia.~~, which~~ The fee shall be paid by the ~~division~~ commission out of any funds at its disposal, but shall be charged by the ~~division~~ commission against the account of the employer to whose delinquency ~~such~~ the notice relates.

§23-2-5a. Collection of premiums from defaulting employers; interest and penalties; civil remedies; creation and enforcement of lien against employer and purchaser; duty of secretary of state to register liens; distraint powers; insolvency proceedings; secretary of state to withhold certificates of dissolution; injunctive relief; bond; attorney fees and costs.

  (a) The workers' compensation ~~division~~ commission in the name of the state may commence a civil action against an employer who, after due notice, defaults in any payment required by this chapter. If judgment is against the employer, ~~such~~ the employer shall pay the costs of the action. A civil action under this section shall be given preference on the calendar of the court over all other civil actions. Upon prevailing in ~~any such~~ a civil action, the ~~division shall be~~ commission is entitled to recover its attorneys' fees and costs of action from the employer.
  (b) In addition to the ~~foregoing~~ provisions of subsection (a) of this section, any payment, interest and penalty ~~thereon~~ due and unpaid under this chapter ~~shall be~~ is a personal obligation of the employer immediately due and owing to the ~~division~~ commission and shall, in addition ~~thereto~~, be a lien enforceable against all the property of the employer: Provided, That ~~no such~~ the lien shall not be enforceable as against a purchaser (including a lien creditor) of real estate or personal property for a valuable consideration without notice, unless docketed as provided in section one, article ten-c, chapter thirty-eight of this code: Provided, however, That ~~such~~ the lien may be enforced as other judgment liens are enforced through the provisions of said chapter and the same ~~shall be~~ is considered deemed by the circuit court to be a judgment lien for this purpose.
  (c) In addition to all other civil remedies prescribed ~~herein~~, the ~~division~~ commission may in the name of the state, after giving appropriate notice as required by due process, distrain upon any personal property, including intangible property, of any employer delinquent for any payment, interest and penalty thereon. If the ~~division~~ commission has good reason to believe that ~~such~~ the property or a substantial portion ~~thereof~~ of the property is about to be removed from the county in which it is situated, upon giving appropriate notice, either before or after the seizure, as is proper in the circumstances, the ~~division~~ commission may likewise distrain in the name of the state before ~~such~~ the delinquency occurs. For ~~such~~ that purpose, the ~~division~~ commission may require the services of a sheriff of any county in the state in levying ~~such~~ the distress in the county in which the sheriff is an officer and in which ~~such~~ the personal property is situated. A sheriff so collecting any payment, interest and penalty thereon ~~shall be~~ is entitled to ~~such~~ the compensation as is provided by law for his or her services in the levy and enforcement of executions. Upon prevailing in any distraint action, the ~~division shall be~~ commission is entitled to recover its attorneys' fees and costs of action from the employer.
  (d) In case a business subject to the payments, interest and penalties thereon imposed under this chapter ~~shall be~~ is operated in connection with a receivership or insolvency proceeding in any state court in this state, the court under whose direction ~~such~~ the business is operated shall, by the entry of a proper order or decree in the cause, make provisions, so far as the assets in administration will permit, for the regular payment of ~~such~~ the payments, interest and penalties as ~~the same~~ they become due.
  (e) The secretary of state of this state shall withhold the issuance of any certificate of dissolution or withdrawal in the case of any corporation organized under the laws of this state or organized under the laws of any other state and admitted to do business in this state, until notified by the ~~division~~ commission that all payments, interest and penalties thereon against ~~any such~~ the corporation which is an employer under this chapter have been paid or that provision satisfactory to the ~~division~~ commission has been made for payment.
  (f) In any case when an employer required to subscribe to the fund defaults in payments of premium, premium deposits, penalty or interest thereon, for as many as two calendar quarters, which quarters need not be consecutive, and remains in default after due notice, the ~~division~~ commission may bring action in the circuit court of Kanawha County to enjoin ~~such~~ the employer from continuing to carry on the business in which ~~such~~ the liability was incurred: Provided, That the ~~division~~ commission may as an alternative to this action require such the delinquent employer to file a bond in the form prescribed by the ~~commissioner~~ commission with satisfactory surety in an amount not less than fifty percent more than the payments, interest and penalties due.
§23-2-5c. Statute of limitations; effective date for new payments; previous payments due not affected.
  For payments due after the effective date of the amendment and reenactment of this section during the year one thousand nine hundred ninety-three, every action or process to collect any premium, premium deposit, interest or penalty due from an employer pursuant to this article by the ~~commissioner~~ executive director shall be brought or issued within five years next after the date on which the employer is required by the section imposing the premium, premium deposit, interest or penalty to file a report and pay the amount due thereunder. The limitation provided by this section shall ~~likewise~~ also apply to enforcement of the lien, if any, securing the payment of ~~such~~ the premium, premium deposit, interest or penalty, but shall not apply in the event of fraud or in the event the employer wholly fails to file the report required by the section imposing the premium, premium deposit, interest or penalty. For payments that were due prior to the effective date of this section, there ~~shall continue~~ continues to be no limitation on when actions or processes may be brought or issued. For every debt collectible under this section which first becomes due and owing after the effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three, every action or process to collect the debt shall be brought or issued within ten years after the date on which the employer is required to file a report and pay the amount assessed or owed to the commission.
§23-2-5d. Uncollectible receivables; write-offs.
  Notwithstanding any other provision to the contrary, ~~the division, with the approval of the compensation programs performance council,~~ the executive director, with the approval of the management council, may write-off any uncollected receivable due under the provisions of this article or article four of this chapter which ~~the division and the compensation programs performance council deem to be~~ the executive director and the management council determine uncollectible.
§23-2-6. Exemption of contributing employers from liability.
  Any employer subject to this chapter who ~~shall subscribe and pay~~ subscribes and pays into the workers' compensation fund the premiums provided by this chapter or who ~~shall elect~~ elects to make direct payments of compensation as ~~herein~~ provided ~~shall~~ in this section is not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing, and during any period in which ~~such~~ the employer ~~shall~~ is not be in default in the payment of ~~such~~ the premiums or direct payments and ~~shall have~~ has complied fully with all other provisions of this chapter. ~~The continuation~~ Continuation in the service of ~~such~~ the employer shall be considered a waiver by the employee and by the parents of any minor employee of the right of action as aforesaid, which the employee or his or her parents would otherwise have: Provided, That in case of employers not required by this chapter to subscribe and pay premiums into the workers' compensation fund, the injured employee has remained in ~~such~~ the employer's service with notice that his or her employer has elected to pay into the workers' compensation fund the premiums provided by this chapter, or has elected to make direct payments as aforesaid.

§23-2-9. Election of employer or employers' group to be self-insured and to provide own system of compensation; exceptions; catastrophe coverage; self administration; rules; penalties; regulation of self-insurers.

  (a) Notwithstanding any provisions of this chapter to the contrary, the following types of employers or employers' groups may apply for permission to self-insure their workers' compensation risk including their risk of catastrophic injuries. ~~Except as provided for in subsection (e) of this section, no employer may self-insure its second injury risk.~~
  (1) The types of employers are:
  (A) Any employer who is of sufficient capability and financial responsibility to ensure the payment to injured employees and the dependents of fatally injured employees of benefits provided for in this chapter at least equal in value to the compensation provided for in this chapter; or
  (B) Any employer of such capability and financial responsibility who maintains its own benefit fund or system of compensation to which its employees are not required or permitted to contribute and whose benefits are at least equal in value to those provided for in this chapter; or
__(C) Any group of employers who are subject to the same collective bargaining agreement or who are in a collective bargaining group may apply to the commission to collectively self-insure their obligations under this chapter. The employers' group must individually and collectively meet the conditions set forth in paragraph (A) or (B) of this subdivision. There shall be joint and several liability for all groups of employers who choose to self-insure under the provisions of this article.
  (2) In order to be approved for self-insurance status, the employer ~~must~~ shall:
  (A) Have an effective health and safety program at its workplaces; and
  (B) Provide security or bond in an amount and form ~~to be~~ determined by the ~~compensation programs performance council~~ executive director with the approval of the management council which shall balance the employer's financial condition based upon an analysis of its audited financial statements and the full accrued value of current liability for future claim payments based upon generally accepted actuarial and accounting principles of the employer's existing and expected liability~~; and~~
  (C) Security or bond which may be in such form as the commissioner and the compensation programs performance council created pursuant to section one, article three, chapter twenty-one-a of this code permits.
  (3) Any employer whose record upon the books of the ~~division~~ commission shows a liability, as determined on an accrued basis against the workers' compensation fund incurred on account of injury to or death of any of the employer's employees, in excess of premiums paid by ~~such~~ the employer, shall not be granted the right, individually and directly or from ~~such~~ the benefit funds or system of compensation, to be self-insured until the employer has paid into the workers' compensation fund the amount of ~~such~~ the excess of liability over premiums paid, including the employer's proper proportion of the liability incurred on account of catastrophes or second injuries as defined in section one, article three of this chapter and charged against ~~such~~ that fund.
  (4) Upon a finding that the employer has met all of the requirements of this section, the employer may be permitted self-insurance status. An annual review of each self-insurer's continuing ability to meet its obligations and the requirements of this section shall be made by the workers' compensation ~~division~~ commission. This review shall include a redetermination of the amount of security or bond which shall be provided by the employer. Failure to provide any new amount or form of security or bond may~~, in the division's discretion,~~ cause the employer's self-insurance status to be terminated by the workers' compensation commission. The security or bond provided by employers prior to the second day of February, one thousand nine hundred ninety-five, shall continue in full force and effect until the performance of the employer's annual review and the entry of any appropriate decision on the amount or form of the employer's security or bond.
  (5) Whenever a self-insured employer ~~shall furnish~~ furnishes security or bond, including replacement and amended bonds and other securities, as ~~security~~ surety to ensure the employer's or guarantor's payment of all obligations under this chapter for which the security or bond was furnished, ~~such~~ the security or bond shall be in the most current form or forms approved and authorized by the ~~division~~ commission for use by the employer or its guarantors, surety companies, banks, financial institutions or others in its behalf for ~~such~~ that purpose.
  (b)(1) Notwithstanding any provision in this chapter to the contrary, self-insured employers shall, effective the first day of July, two thousand four, administer their own claims. The executive director shall, with concurrence of the council, develop and publish such rules as necessary to regulate the administration of claims by employers granted permission to self-insure their obligations under this chapter. Such rules shall be promulgated at least thirty days prior to the first day of July, two thousand four. A self-insured employer shall comply with rules promulgated by the commission governing the self-administration of its claims.
  (2) An employer or employers' group who self-insures its risk and self-administers its claims shall exercise all authority and responsibility granted to the commission in this chapter and to provide notices of action taken in effectuating the purposes of this chapter to provide benefits to persons who have suffered injuries or diseases covered by this chapter. An employer granted permission to self-insure and self-administer its obligations under this chapter shall at all times be bound and shall comply fully with all of the provisions of this chapter. Furthermore, all of the provisions contained in article four of this chapter pertaining to disability and death benefits are binding on and shall be strictly adhered to by the self-insured employer in its administration of claims presented by employees of the self-insured employer. Violations of the provisions of this chapter and such rules relating to this chapter as may be approved by the management council may constitute sufficient grounds for the termination of the authority for any employer to self-insure its obligations under this chapter. Claim notices currently generated by the commission on behalf of self-insured employers must be generated and sent by the self-insured employer or its third-party administrator.
  ~~(b)~~ (c) Each self-insured employer shall, on or before the last day of the first month of each quarter, file with the ~~division~~ commission a certified statement of the total gross wages and earnings of all of the employer's employees subject to this chapter for the preceding quarter. Each self-insured employer shall pay into the workers' compensation fund as portions of its self-insured premium tax:
  (1) A sum sufficient to pay the employer's proper portion of the expense of the administration of this chapter;
  (2) A sum sufficient to pay the employer's proper portion of the expense of claims for those employers who are in default in the payment of premium taxes or other obligations;
  (3) A sum sufficient to pay the employer's fair portion of the expenses of the disabled workers' relief fund; ~~and~~
  (4) A sum sufficient to maintain as an advance deposit an amount equal to the previous quarter's payment of each of the foregoing three sums;
  (5) A sum as determined by the commission to be sufficient to pay the employer's portion of deficit management fund claim payments; and
__(6) A sum as determined by the commission to pay the employer's portion of self-insured catastrophic injury benefits, and second injury payments on all self-insured second injury claims other than second injury claims for those employers self-insured for second injury. Any employer previously self-insured for second injury benefits shall continue to be responsible for payment of those benefits.
__~~(c)~~ (d) Unless otherwise provided in this chapter, effective for the fiscal year beginning the first day of July, two thousand three, and the fiscal year beginning the first day of July two thousand four, premium taxes for each self-insured employer as determined in subdivisions (1) through (6), subsection (c) of this section shall not be increased more than fifteen percent per year above premium tax levels established for that employer in the immediately preceding fiscal year.
__~~The~~ required payments to the employer's injured employees or dependents of fatally injured employees as benefits provided for by this chapter including second injury benefits and catastrophic injury benefits, if applicable, shall constitute the remaining portion of the self-insurer's premium tax.
  (1) If an employer defaults in the payment of any portion of its self-insured premium taxes, surcharges or assessments, the ~~division~~ commission may, in an appropriate case, determine the full accrued value based upon generally accepted actuarial and accounting principles of the employer's liability including the costs of all awarded claims and of all incurred but not reported claims. The amount so determined may, in an appropriate case, be assessed against the employer. ~~and the division~~ The commission may demand and collect the present value of ~~such~~ the defaulted tax liability. Interest shall accrue upon the demanded amount as provided for in section thirteen of this article until the premium tax is fully paid. Payment of all amounts then due to the ~~division~~ commission and to the employer's employees is a sufficient basis for reinstating the employer to good standing with the fund. In addition, only self-insured employers who cease to make required payments to the employer's injured employees or dependents of fatally injured employees as benefits provided for by this chapter including second injury benefits and catastrophic injury benefits, if applicable, shall be deemed to be in default.
  (2) ~~Such premium~~ Premium tax assessments are special revenue taxes under and according to the provisions of state workers' compensation law and are ~~deemed~~ considered to be tax claims, as priority claims or administrative expense claims according to those provisions under the law provided in the United States bankruptcy code, Title 11 of the United States Code. In addition, as the same was previously intended by the prior provisions of this section, this amendment and reenactment is for the purpose of clarification of the taxing authority of the workers' compensation ~~division~~ commission.
  ~~(d)~~ (e) Each self-insured employer shall elect whether or not to self-insure its catastrophic injury risk as defined in subsection (c), section one, article three of this chapter. A self-insured employer who elects to insure its catastrophic risk through a policy of excess insurance obtained through a private insurance carrier approved by the commission shall provide a copy of the policy to the commission.
  (1) If the employer does not elect to self-insure its catastrophic risk, ~~then~~ the employer shall pay premium taxes for this coverage in the same manner as is provided for in section four of this article and in rules adopted to implement ~~said~~ that section. Until such rules are adopted, the employer's premium taxes shall be determined in accordance with the provisions of chapter one hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one. If the employees of ~~such an~~ that employer suffer injury or death from a catastrophe, ~~then~~ the payment of the resulting benefits shall be made from the catastrophe reserve of the surplus fund provided for in subsection (b), section one, article three of this chapter. ~~Such~~ Any portion of an employer's catastrophic liability insured and paid under a policy of insurance purchased by the employer shall not be included in the liabilities upon which the employer's security or bond is determined in subsection (a) of this section.
  (2) If an otherwise self-insured employer elects not to self-insure its catastrophic risk, ~~then~~ the security or bond required in subsection (a) of this section shall include the liability for the catastrophic risk.
  (e) (1) Any self-insured employer who was, prior to the second day of February, one thousand nine hundred ninety-five, permitted to self-insure its second injury risk as defined in subsection (d), section one, article three of this chapter, may elect to continue to self-insure its second injury risk for so long as it meets the requirements of this chapter. Any employer which was previously permitted to self-insure its second injury risk who then elects to terminate that self- insurance status shall not thereafter be permitted to self-insure its second injury risk.
  ~~(2)~~ (f) For those employers previously permitted to self-insure their second injury risks, the amount of the security or bond required in subsection (a) of this section shall include the liability for that risk. All benefits provided for by this chapter which are awarded to the employer's employees which constitute second injury life awards shall ~~then~~ be paid by the employer and not the ~~division~~ commission.
  (3) (A) For those employers which do not self-insure their second injury risk, the premium tax for second injury coverage shall be determined by the rules which implement section four of this article. Such rules may provide for merit rate adjustments of the amount of premium tax to be paid based upon the accrued costs to be determined under generally accepted accounting principles of second injury benefits paid and to be paid to the employer's employees. Until such rules are adopted, the employer's premium taxes shall be determined in accordance with the provisions of chapter one hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one.
  (B) In case there is a second injury to an employee of any employer making such second injury premium tax payments, the employer shall be liable to pay compensation or expenses arising from or necessitated by the second injury and such compensation and expenses shall be charged against the employer. After the completion of these payments, the employee shall be paid the remainder of the compensation and expenses that would be due for permanent total disability from the second injury reserve of the surplus fund. Such additional compensation and expenses shall not be charged against such employer.
  ~~(f)~~(g) The ~~compensation programs performance council~~ commission may create, implement, establish and administer a perpetual self-insurance security risk pool of funds, sureties, securities, insurance provided by private insurance carriers or other states' programs, and other property, of both real and personal properties, to secure the payment of obligations of self-insured employers. If ~~such~~ a pool is created, the ~~compensation programs performance council~~ commission shall adopt rules for the organizational plan, participation, contributions and other payments which may be required of self-insured employers under this section. The ~~council, in order to create and fund such a risk pool,~~ executive director, with approval of the management council, may adopt a rule authorizing the ~~division~~ commission to assess each self-insured employer in proportion according to each employer's portion of the unsecured obligation and liability or to assess according to some other method provided for by rule which shall properly create and fund ~~such~~ the risk pool to serve the needs of employees, employers and the workers' compensation fund by providing adequate security. The ~~council~~ commission, in ~~funding such~~ establishing a security risk pool, may authorize the ~~division~~ commission to use any assessments, premium ~~tax assessments~~ taxes and revenues and appropriations as may be made available to the ~~division~~ commission.
  ~~(g)~~(h) Any self-insured employer which has had a period of inactivity due to the nonemployment of employees which results in its reporting of no wages on ~~quarterly~~ reports to the ~~division~~ commission for a period of four or more consecutive quarters shall have its status at the ~~division~~ commission inactivated and shall ~~be required to~~ apply for reactivation to status as a self- insured employer prior to its reemployment of employees. Despite ~~such~~ the inactivation, the self- insured employer shall continue to make payments on all awards for which it is responsible. Upon application for reactivation of its status as an operating self-insured employer, the employer ~~must~~ shall document that it meets the eligibility requirements needed to maintain self-insured status under this section and any rules adopted to implement it. If the employer is unable to requalify and obtain approval for reactivation, the employer shall, effective with the date of employment of any employee, become a subscriber to the workers' compensation fund, but shall continue to be a self- insurer as to the prior period of active status and to furnish security or bond and meet its prior self- insurance obligations.
  ~~(h)~~(i) In any case under the provisions of this section that ~~shall~~ require the payment of compensation or benefits by an employer in periodical payments and the nature of the case makes it possible to compute the present value of all future payments, ~~then~~ the ~~division~~ commission may, in its discretion, at any time compute and permit to be paid into the workers' compensation fund an amount equal to the present value of all unpaid future payments on the award or awards for which liability exists in trust. Thereafter, ~~such~~ the employer shall be discharged from any further portion of premium tax liability upon ~~such~~ the award or awards and payment of the award or awards shall be assumed by the ~~division~~ commission.
  ~~(i)~~(j) Any employer subject to this chapter, who ~~shall elect~~ elects to carry the employer's own risk by being self-insured and who has complied with the requirements of this section and of any applicable rules, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after ~~such~~ the election's approval and during the period that the employer is allowed to carry the employer's own risk.
  (k) An employer may not hire any person or group to self-administer claims under this chapter as a third-party administrator unless the person or group has been determined to be qualified to be a third-party administrator by the commission pursuant to rules adopted by the management council. Any person or group whose status as a third-party administrator has been revoked, suspended or terminated by the commission shall immediately cease administration of claims and shall not administer claims unless subsequently authorized by the commission.
§23-2-10. Application of chapter to interstate commerce.
  (a) In case any employer within the meaning of this chapter is also engaged in interstate or foreign commerce, and for whom a rule of liability or method of compensation has been established by the Congress of the United States, this chapter ~~shall apply~~ applies to him or her only to the extent that his or her mutual connection with work in this state is clearly separable and distinguishable from his or her interstate work, and to the extent that ~~such~~ the work in this state is clearly separable and distinguishable from his or her interstate work, ~~such~~ the employer ~~shall be~~ is subject to the terms and provisions of this chapter in like manner as all other employers ~~hereunder~~ under this chapter. Payments of premiums shall be on the basis of the payroll of those employees who perform work in this state only.
  (b) Unless and until the Congress of the United States has by appropriate legislation established a rule of liability or method of compensation governing employers and employees engaged in commerce within the purview of the commerce clause of the United States Constitution (article I, section 8), section one of this article ~~shall apply~~ applies without regard to the interstate or intrastate character or nature of the work or business engaged in.
§23-2-11. Partial invalidity of chapter.
  If any employer ~~shall be~~ is adjudicated to be outside the lawful scope of this chapter, the chapter shall not apply to him or her or his or her employee; or if any employee ~~shall be~~ is adjudicated to be outside the lawful scope of this chapter, because of remoteness of his or her work from the hazard of his or her employer's work, ~~any such~~ the adjudication shall not impair the validity of this chapter in other respects, and in every ~~such~~ case an accounting in accordance with the justice of the case shall be had of moneys received. If the provisions of this chapter for the creation of the workers' compensation fund, or the provisions of this chapter making the compensation to the employee provided in it exclusive of any other remedy on the part of the employee, ~~shall be~~ is held invalid, the entire chapter shall be ~~thereby~~ invalidated and an accounting according to the justice of the case shall be had of money received. In other respects an adjudication of invalidity of any part of this chapter shall not affect the validity of the chapter as a whole or any part ~~thereof~~ of this chapter.

§23-2-12. Effect of repeal or invalidity of chapter on action for damages.

If the provisions of this chapter relating to compensation for injuries to, or death of, ~~workmen shall be~~ workers is repealed or adjudged invalid or unconstitutional, the period intervening between the occurrence of any injury or death and ~~such~~ the repeal, or the final adjudication of invalidity or unconstitutionality, shall not be computed as a part of the time limited by law for the commencement of any action relating to ~~such~~ the injuries or death, but the amount of any compensation which may have been paid on account of ~~such~~ injury or death shall be deducted from any judgment for damages recovered on account of ~~such~~ the injury or death.

§23-2-13. Interest on past-due payments; reinstatement agreements.

Effective the first day of July, one thousand nine hundred ninety-nine, payments unpaid on the date on which due and payable shall immediately begin bearing interest as specified ~~hereinafter~~ in this section. The interest rate per annum for each fiscal year shall be calculated as the greater of the ~~division's~~ commission's current discount rate or the prime rate plus four percent, each rounded to the nearest whole percent. The discount rate shall be determined by the ~~compensation programs performance council~~ management council on an annual basis. The prime rate shall be the rate published in the Wall Street Journal on the last business day of the ~~division's~~ commission's prior fiscal year reflecting the base rate on corporate loans posted by at least seventy-five percent of the nation's thirty largest banks. This same rate of interest shall be applicable to all reinstatement agreements entered into by the ~~commissioner~~ commission pursuant to section five of this article on and after the effective date of this section: Provided, That if an employer enters into a subsequent reinstatement agreement within seven years of the date of the first agreement, the interest rate shall be eighteen percent per annum. Interest shall be compounded quarterly until payment plus accrued interest is received by the ~~commissioner~~ commission: Provided, however, That on and after the date of execution of a reinstatement agreement, for determining future interest on any past-due premium, premium deposit, and past compounded interest thereon, any reinstatement agreement entered into by the ~~commissioner~~ commission shall provide for a simple rate of interest, determined in accordance with the provisions of this section which ~~shall~~ is not be subject to change during the life of the reinstatement agreement for ~~such~~ the future interest. Interest collected pursuant to this section shall be paid into the workers' compensation fund: Provided further, That in no event shall the rate of interest charged a political subdivision of the state or a volunteer fire department pursuant to this section exceed ten percent per annum.

§23-2-14. Sale or transfer of business; attachment of lien for premium, etc., payments due; criminal penalties for failure to pay; creation and avoidance or elimination of lien; enforcement of lien; successor liability.

  (a) If any employer ~~shall sell~~ sells or otherwise ~~transfer~~ transfers substantially all of the employer's assets, so as to give up substantially all of the employer's capacity and ability to continue in the business in which the employer has previously engaged ~~then~~:
  (1) ~~Such~~ The employer's premium taxes, premium deposits, interest and other payments owed to the ~~division shall be~~ commission are due and owing to the ~~division~~ commission upon the execution of the agreement of sale or other transfer;
  (2) Any repayment agreement entered into by the employer with the ~~division~~ commission pursuant to section five of this article ~~shall terminate~~ terminates upon the execution of the ~~aforesaid~~ agreement of sale or other transfer and all amounts owed to the ~~division~~ commission but not yet paid ~~shall~~ become due; and
  (3) Upon execution of an agreement of sale or other transfer, as aforesaid, the ~~division~~ commission shall continue to have a lien, as provided for in section five-a of this article, against all of the remaining property of the employer as well as all of the sold or transferred assets~~, which~~. The lien ~~shall constitute~~ constitutes a personal obligation of the employer.
  (b) Notwithstanding any provisions of section five-a of this article to the contrary, in the event that a new employer acquires by sale or other transfer or assumes all or substantially all of a predecessor employer's assets ~~then~~:
  (1) Any liens for payments owed to the ~~division~~ commission for premium taxes, premium deposits, interest or other payments owed to the ~~division~~ commission by the predecessor employer shall be extended to the successor employer;
  (2) Any liens held by the ~~division~~ commission against the predecessor employer's property shall be extended to all of the assets of the successor employer; and
  (3) Liens acquired in the manner described in subdivisions (1) and (2) of this subsection ~~shall be~~ are enforceable by the ~~division~~ commission to the same extent as provided for the enforcement of liens against the predecessor employer in section five-a of this article.
  (c) Notwithstanding the provisions of section five-a of this article to the contrary, if any employer as described in subsection (a) of this section shall ~~sell~~ sells or otherwise ~~transfer~~ transfers a portion of the employer's assets so as to affect the employer's capacity to do business ~~then~~:
  (1) ~~Such~~ The employer's premium taxes, premium deposits, interest and other payments owed to the ~~division shall be~~ commission are due and owing to the ~~division~~ commission upon the execution of the agreement of sale or other transfer;
  (2) Any repayment agreement entered into by the employer with the ~~division~~ commission pursuant to section five of the article ~~shall terminate~~ terminates upon the execution of the aforesaid agreement of sale or other transfer and all amounts owed to the ~~division~~ commission but not yet paid shall become due; and
  (3) Upon execution of an agreement of sale or other transfer, as aforesaid, the ~~division~~ commission shall continue to have a lien, as provided for in section five-a of this article, against all of the remaining property of the employer as well as all the sold or transferred assets. ~~which~~ The lien ~~shall constitute~~ constitutes a personal obligation of the employer.
  (d) If an employer subject to subsection (a), (b) or (c) of this section pays to the ~~division~~ commission, prior to the execution of an agreement of sale or other transfer, a sum sufficient to retire all of the indebtedness that the employer would owe at the time of the execution, ~~then~~ the ~~division~~ commission shall issue a certificate to the employer stating that the employer's account is in good standing with the ~~division~~ commission and that the assets may be sold or otherwise transferred without the attachment of the ~~division's~~ commission's lien. An agreement of sale or other transfer may provide for the creation of an escrow account into which the employers shall pay the full amount owed to the ~~division~~ commission. The subsequent timely payment of that full amount to the ~~division shall operate~~ commission operates to place both employers in good standing with the ~~division~~ commission to the extent of the predecessor employer's liabilities retroactive to the date of sale or other transfer. In the event that the employer would not owe any sum to the ~~division~~ commission on the aforesaid date of execution, ~~then~~ a certificate shall also be issued to the employer upon the employer's request stating that the employer's account is in good standing with the ~~division~~ commission and that the assets may be sold or otherwise transferred without the attachment of the ~~division's~~ commission's lien.
  (e) As used in this article, the term "assets" means all property of whatever type in which the employer has an interest including, but not limited to, good will, business assets, customers, clients, contracts, access to leases such as the right to sublease, assignment of contracts for the sale of products, operations, stock of goods or inventory, accounts receivable, equipment or transfer of substantially all of its employees.
  (f) The transfer of any assets of the employer ~~shall be~~ are presumed to be a transfer of all or substantially all of the assets if the transfer affects the employer's capacity to do business. The presumption can be overcome upon petition presented and an administrative hearing in accordance with section fifteen of this article and in consideration of the factors ~~thereunder~~ under that section.
  (g) The ~~foregoing~~ provisions of this section are expressly intended to impose upon ~~such~~ successor employers the duty of obtaining from the ~~division~~ commission or predecessor employer, prior to the date of ~~such~~ the acquisition, a valid "certificate of good standing to transfer a business or business assets" to verify that the predecessor employer's account with the ~~division~~ commission is in good standing.

§23-2-15. Liabilities of successor employer; waiver of payment by commission; assignment of predecessor employer's premium rate to successor.

  (a) At any time prior to or following the acquisition described in subsection (a), (b) or (c), section fourteen of this article, the buyer or other recipient may file a certified petition with the ~~division~~ commission requesting that the ~~division~~ commission waive the payment by the buyer or other recipient of premiums, premium deposits, interest and imposition of the modified rate of premiums attributable to the predecessor employer or other penalty, or any combination thereof. The ~~division~~ commission shall review the petition by considering the following seven factors ~~set forth below~~:
  (1) The exact nature of the default;
  (2) The amount owed to the ~~division~~ commission;
  (3) The solvency of the fund;
  (4) The financial condition of the buyer or other recipient;
  (5) The equities exhibited towards the fund by the buyer or other recipient during the acquisition process;
  (6) The potential economic impact upon the state and the specific geographic area in which the buyer or other recipient is to be or is located, if the acquisition were not to occur; and
  (7) Whether the assets are purchased in an arms-length transaction.
  Unless requested by a party or by the ~~division~~ commission, no hearing need be held on the petition. However, any decision made by the ~~division~~ commission on the petition shall be in writing and shall include appropriate findings of fact and conclusions of law. ~~Such~~ The decision shall be effective ten days following notice to the public of the decision unless an objection is filed in the manner ~~herein~~ provided in this section. ~~Such notice~~ Notice shall be given by the ~~division's~~ commission's filing with the secretary of state, for publication in the state register, of a notice of the decision. At the time of filing the notice of its decision, the ~~division~~ commission shall also file with the secretary of state a true copy of the decision. The publication shall include a statement advising that any person objecting to the decision must file, within ten days after publication of the notice, a verified response with the ~~division~~ commission setting forth the objection and the basis ~~therefor~~ for the objection. If any ~~such~~ objection is filed, the ~~division~~ commission shall hold an administrative hearing, conducted pursuant to article five, chapter twenty-nine-a of this code, within fifteen days of receiving the response unless the buyer or other recipient consents to a later hearing. Nothing in this subsection shall be construed to be applicable to the seller or other transferor or to affect in any way a proceeding under sections five and five-a of this article.
  (b) In the factual situations set forth in subsection (a), (b) or (c), section fourteen of this article, if the predecessor's modified rate of premium tax, as calculated in accordance with section four of this article, is greater than the manual rate of premium tax, as calculated in accordance with ~~said~~ that section, for other employers in the same class or group, ~~then,~~ and if the new employer does not already have a modified rate of premium, it shall also assume the predecessor employer's modified rates for the payment of premiums as determined under sections four and five of this article until sufficient time has elapsed for the new employer's experience record to be combined with the experience record of the predecessor employer so as to calculate the new employer's own modified rate of premium tax.
§23-2-16. Acceptance or assignment of premium rate.
  (a) If a new corporate employer which is not subject to the provisions of section fifteen of this article is created by the officers or shareholders of a preexisting corporate employer and if the new corporate employer and the preexisting corporate employer ~~are~~: (1) ~~Managed~~ Are managed by the same, or substantially the same, management personnel; ~~and~~ (2) have a common ownership by at least forty percent of each corporation's shareholders; ~~and~~ (3) is are in the same class or group as determined by the ~~commissioner~~ executive director under the provisions of section four of this article; and (4) if the preexisting corporate employer's account is in good standing with the ~~commissioner~~ commission, ~~then,~~ at the time the new corporate employer registers with the ~~commissioner~~ commission, the new corporate employer may request that the ~~commissioner~~ commission assign to it the same rate of payment of premiums as that assigned to the preexisting corporate employer. If the ~~commissioner~~ executive director decides that the granting of ~~such a~~ the request is in keeping with his or her fiduciary obligations to the workers' compensation fund, ~~then~~ the ~~commissioner~~ executive director may grant the request of the employer.
  (b) If a new corporate employer which is not subject to the provisions of section fifteen of this article is created by the officers or shareholders of a preexisting corporate employer and if the new corporate employer and the preexisting corporate employer ~~are~~: (1) ~~Managed~~ Are managed by the same, or substantially the same, management personnel; ~~and~~ (2) have a common ownership by at least forty percent of each corporation's shareholders; and (3) is are in the same class or group as determined by the ~~commissioner~~ executive director under the provisions of section four of this article, ~~then,~~ at any time within one year of the new corporate employer's registration with the ~~commissioner~~ commission, the ~~commissioner~~ executive director may decide that, in keeping with his or her fiduciary obligations to the workers' compensation fund, the new corporate employer shall be assigned the same rate of payment of premiums as that assigned to the preexisting corporate employer at any time within the aforesaid one-year period: Provided, That if the new corporate employer fails to reveal to the ~~commissioner~~ commission on the forms provided by the ~~commissioner~~ commission that its situation meets the factual requirements of this section, ~~then~~ the ~~commissioner~~ commission may demand payment from the new corporate employer in an amount sufficient to eliminate the deficiency in payments by the new corporate employer from the date of registration to the date of discovery plus interest thereon as provided for by section thirteen of this article. The ~~commissioner~~ commission may ~~utilize the~~ use its powers ~~given to the commissioner in~~ pursuant to section five-a of this article to collect the amount due.

§23-2-17. Employer right to hearing; content of petition; appeal.

  Notwithstanding any provision in this chapter to the contrary and notwithstanding any provision in section five, article five, chapter twenty-nine-a of this code to the contrary, in any situation where an employer objects to a decision or action of the ~~commissioner~~ executive director made under the provisions of this article, ~~then such~~ the employer ~~shall be~~ is entitled to file a petition demanding a hearing upon ~~such~~ the decision or action ~~which~~. The petition must be filed within thirty days of the employer's receipt of notice of the disputed ~~commissioner's~~ executive director's decision or action or, in the absence of such receipt, within sixty days of the date of the ~~commissioner's~~ executive director's making ~~such~~ the disputed decision or taking ~~such~~ the disputed action, ~~such~~ the time limitations being hereby declared to be a condition of the right to litigate ~~such~~ the decision or action and ~~hence~~ therefor jurisdictional.
  The employer's petition shall clearly identify the decision or action disputed and the bases upon which the employer disputes the decision or action. Upon receipt of ~~such~~ a petition, the ~~commissioner~~ executive director shall schedule a hearing which shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. An appeal from a final decision of the ~~commissioner~~ executive director shall be taken in accord with the provisions of articles five and six of ~~said~~ that chapter: Provided, That all ~~such~~ appeals shall be taken to the circuit court of Kanawha County.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations; effective date.
  (a) Where a compensable injury or death is caused, in whole or in part, by the act or omission of a third party, the injured worker or, if he or she is deceased or physically or mentally incompetent, his or her dependents or personal representative ~~shall be~~ are entitled to compensation under the provisions of this chapter and shall not by having received ~~same~~ compensation be precluded from making claim against ~~said~~ the third party.
  (b) Notwithstanding the provisions of subsection (a) of this section, if an injured worker, his or her dependents or his or her personal representative makes a claim against ~~said~~ the third party and recovers any sum ~~thereby~~ for the claim, the ~~commissioner~~ commission or a self-insured employer shall be allowed statutory subrogation with regard to medical benefits paid as of the date of the recovery.: ~~Provided~~, That under no circumstances shall any moneys received by the commissioner or self-insured employer as subrogation to medical benefits expended on behalf of the injured or deceased worker exceed fifty percent of the amount received from the third party as a result of the claim made by the injured worker, his or her dependents or personal representative, after payment of attorney's fees and costs, if such exist. The commission or self-insured employer shall permit the deduction from the amount received a reasonable attorney's fee and a reasonable portion of costs. It is the duty of the injured worker, his or her dependents, his or her personal representative, or his or her attorney to notify the commission and the employer when the claim is filed against the third party.
  (c) In the event that an injured worker, his or her dependents or personal representative makes a claim against a third party, there shall be, and there is hereby created, a statutory subrogation lien upon ~~such~~ the moneys received which shall exist in favor of the ~~commissioner~~ commission or self-insured employer. Any injured worker, his or her dependents or personal representative who receives moneys in settlement in any manner of a claim against a third party ~~shall remain~~ remains subject to the subrogation lien until payment in full of the amount permitted to be subrogated under subsection (b) of this section is paid.
  (d) The right of subrogation granted by the provisions of this section shall not attach to any claim arising from a right of action which arose or accrued, in whole or in part, prior to the effective date of ~~this article~~ the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three.
ARTICLE 2B. OCCUPATIONAL SAFETY AND HEALTH PROGRAMS.

§23-2B-1. Occupational safety and health activities; voluntary compliance; consultative services.

  In order to carry out the purposes of this chapter and to encourage voluntary compliance with occupational safety and health laws, regulations, rules and standards and to promote more effective workplace health and safety programs, the ~~commissioner~~ executive director acting in conjunction with the ~~performance council created pursuant to section one, article three, chapter twenty-one-a of this code,~~ management council shall:
  (a) Develop greater knowledge and interest in the causes and prevention of industrial accidents, occupational diseases and related subjects through:
  (1) Research, conferences, lectures and the use of public communications media;
  (2) The collection and dissemination of accident and disease statistics; and
  (3) The publication and distribution of training and accident prevention materials, including audio and visual aids;
  (b) Provide consultative services for employers on safety and health matters and prescribe procedures which will permit any employer to request a special inspection or investigation, focused on specific problems or hazards in the place of employment of the employer or to request assistance in developing a plan to correct such problems or hazards, which will not directly result in a citation and civil penalty; and
  (c) Place emphasis, in the research, education and consultation program, on development of a model for providing services to groups of small employers in particular industries and their employees and for all employers whose experience modification factor for rate-setting purposes is in excess of the criteria established by the ~~compensation programs performance council~~ management council.

§23-2B-2. Mandatory programs; safety committees; requirements; rules; exceptions.

  (a) Based upon and to the extent authorized by criteria established by the ~~compensation programs performance council~~ executive director, the ~~commissioner~~ commission is authorized to conduct special inspections or investigations focused on specific problems or hazards in the workplace with or without the agreement of the employer. The ~~commissioner~~ executive director shall issue a report on his or her findings and shall furnish a copy of the report to the employer and to any bargaining unit representing the employees of the employer. The ~~commissioner~~ executive director may share information obtained or developed pursuant to this article with other governmental agencies.
  (b) For any employer whose experience modification factor exceeds the criteria established by the ~~compensation programs performance council~~ management council, the ~~commissioner~~ executive director may require the employer to establish a safety committee composed of representatives of the employer and the employees of the employer.
  (c) In carrying out the provisions of this article, the ~~commissioner and the compensation programs performance council~~ executive director shall promulgate rules which shall include, but are not limited to, the following provisions:
  (1) Prescribing the membership of the committees, training, frequency of meetings, recordkeeping and compensation of employee representatives on safety committees; and
  (2) Prescribing the duties and functions of safety committees which include, but are not limited to:
  (A) Establishing procedures for workplace safety inspections; and for investigating job- related accidents, illnesses and deaths; and
  (B) Evaluating accident and illness prevention programs.
  (d) An employer that is a member of a multiemployer group operating under a collective bargaining agreement that contains provisions regulating the formation and operation of a safety committee that meets or exceeds the minimum requirements of this section ~~shall be~~ is considered to have met the requirements of this section.
  (e) It is not the purpose of this article to either supercede the federal Occupational Health and Safety Act program, federal Mine Safety and Health Act program or to create a state counterpart to ~~this program~~ these programs.

§23-2B-3. Premium rate credits; qualified loss management program; loss management firms; penalties; rules.

  (a) The ~~commissioner, in conjunction with the compensation programs performance council, is authorized to~~ executive director may establish by rule a premium credit program for certain employers. The program ~~shall be~~ is applicable solely to regular subscribers to the workers' compensation fund and not to self-insurers. Participation in any premium credit program ~~shall be~~ is voluntary and no employer ~~shall be~~ is required to participate.
  (b) The program ~~shall apply~~ applies a prospective credit to the premium rate of a subscribing employer who participates in a qualified loss management program. The prospective credit ~~shall be~~ is given for a period of up to three years: Provided, That the employer remains in the program for a corresponding period of time.
  (c) The rule shall specify the requirements of a qualified loss management program and shall include a requirement that a recognized loss management firm participate in the program. A loss management firm shall be recognized if it has demonstrated an ability to significantly reduce workers' compensation losses for its client employers by implementing a loss control management program. The amount of credit against premium rates that may be allowed by the ~~commissioner~~ executive director shall vary from firm to firm and shall be primarily determined by the loss reduction success experienced by all of the subscribing employers of the sponsoring loss management firm over a period of time to be determined by the ~~commissioner~~ executive director.
  (d) A credit ~~shall be~~ is applied to the employer's premium rate for up to three years. The amount of the credit applied to the first year is based on the credit factor assigned to the loss management firm on the date the employer subscribes to the program. The amount of the credit applied to the second and third years shall be based on the credit factor assigned to the loss management firm and in effect on each first day of July of the pertinent year: Provided, That the applicable credit is halved in the third year.
  (e) The employer may terminate participation in the program upon three years of continuous participation in the program without penalty. Sooner termination may result in a penalty being applied to the employer's premium rate.
  (f) An employer who has subscribed to an existing program of a qualified loss management firm prior to the effective date of this section ~~shall be~~ is subject to a reduction in credit as follows:
  (1) Participation for one year or less shall result in credit for the full three years;
  (2) Participation for more than one year but less than two years shall result in a credit for two years;
  (3) Participation for two years or more but less than three years shall result in a credit for one year; and
  (4) Participation for three years or more shall result in no credit.
  (g) This section shall not become effective until the ~~commissioner, in conjunction with the compensation programs performance council,~~ executive director promulgates an appropriate rule to implement the section's provisions.
ARTICLE 3. WORKERS' COMPENSATION FUND.

§23-3-1. Compensation fund; catastrophe and catastrophe payment defined; compensation by employers.

  (a) The ~~commissioner~~ commission shall establish a workers' compensation fund from the premiums and other funds paid thereto by employers, as ~~herein~~ provided in this section, for the benefit of employees of employers who have paid the premiums applicable to ~~such~~ the employers and have otherwise complied fully with the provisions of section five, article two of this chapter, and for the benefit, to the extent elsewhere in this chapter set out, of employees of employers who have elected, under section nine, article two of this chapter, to make payments into the ~~surplus~~ fund ~~hereinafter~~ provided for in this section, and for the benefit of the dependents of all ~~such~~ the employees, and for the payment of the administration expenses of this chapter. Moneys from the workers' compensation fund may be transferred to the workers' compensation deficit management fund: Provided, That on or after the first day of July, two thousand three, any such transfer may be made only by appropriation by the Legislature.
  (b) A portion of all premiums that ~~shall be~~ are paid into the workers' compensation fund by subscribers not electing to carry their own risk under section nine, article two of this chapter ~~shall be~~ that are set aside to create and maintain a ~~surplus~~ reserve of the fund to cover the catastrophe hazard ~~the second injury hazard~~ and all losses not otherwise specifically provided for in this chapter. The percentage to be set aside ~~shall be~~ is determined pursuant to the rules adopted to implement section four, article two of this chapter and shall be in an amount sufficient to maintain a solvent ~~surplus~~ fund. All interest earned on investments by the workers' compensation fund, which is attributable to the ~~surplus fund~~ reserve, shall be credited to the ~~surplus~~ fund.
  (c) A catastrophe is hereby defined as an accident in which three or more employees are killed or receive injuries, which, in the case of each individual, consist of: Loss of both eyes or the sight thereof; or loss of both hands or the use thereof; or loss of both feet or the use thereof; or loss of one hand and one foot or the use thereof. The aggregate of all medical and hospital bills and other costs and all benefits payable on account of a catastrophe is ~~hereby~~ defined as "catastrophe payment". In case of a catastrophe to the employees of an employer who is an ordinary premium- paying subscriber to the fund, or to the employees of an employer who, having elected to carry the employer's own risk under section nine, article two of this chapter, has ~~heretofore~~ previously elected, or may ~~hereafter~~ later elect, to pay into the catastrophe reserve of the ~~surplus~~ fund under the provisions of that section, ~~then~~ the catastrophe payment arising from ~~such~~ the catastrophe shall not be charged against, or paid by, ~~such~~ the employer but shall be paid from the catastrophe reserve of the ~~surplus~~ fund.
  (d) ~~(1) If~~ For all awards made on or after the effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, the following provisions relating to second injury are not applicable. For awards made before the date specified in this subsection, if an employee who has a definitely ascertainable physical impairment, caused by a previous occupational injury, occupational pneumoconiosis or occupational disease, irrespective of its compensability, becomes permanently and totally disabled through the combined effect of ~~such~~ the previous injury and a second injury received in the course of and as a result of his or her employment, the employer shall be chargeable only for the compensation payable for ~~such~~ the second injury: Provided, That in addition to ~~such~~ the compensation, and after the completion of the payments ~~therefor~~, for the employee shall be paid the remainder of the compensation that would be due for permanent total disability out of a special reserve of the surplus fund ~~known as the second injury reserve~~ created in the manner ~~hereinbefore~~ previously set forth. The procedure by which the claimant's request for a permanent total disability award under this section is ruled upon shall require that the issue of the claimant's degree of permanent disability first be determined. Thereafter, by means of a separate order, a decision shall be made as to whether the award ~~shall be~~ is a second injury award under this subsection or a permanent total disability award to be charged to the employer's account or to be paid directly by the employer if the employer has elected to be self-insured under the provisions of section nine, article two of this chapter.
  (2) If an employee of an employer, where the employer has elected to carry his or her own risk under section nine, article two of this chapter, and is permitted not to make payments into the second injury reserve of surplus fund under the provisions of said section, has a definitely ascertainable physical impairment caused by a previous occupational injury, occupational pneumoconiosis or occupational disease, irrespective of its compensability, and becomes permanently and totally disabled from the combined effect of such previous injury and a second injury received in the course of and as a result of his or her employment, the employee shall be granted an award of total permanent disability and his or her employer shall, upon order of the division, compensate the said employee in the same manner as if the total permanent disability of the employee had resulted from a single injury while in the employ of such employer.
  (e) Employers electing, as ~~herein~~ provided in this chapter, to compensate individually and directly their injured employees and their fatally injured employees' dependents shall do so in the manner prescribed by the ~~division~~ commission and shall make all reports and execute all blanks, forms and papers as directed by the ~~division~~ commission, and as provided in this chapter.

§23-3-1a. Transfer of silicosis fund to workers' compensation fund; claims under former article six.

  Ten percent of the funds collected and held as the workers' compensation silicosis fund under the provisions of former article six of this chapter, shall be transferred to and made a part of the workers' compensation fund provided for in the preceding section, and the balance ~~thereof~~ of the silicosis fund shall be refunded to the subscribers ~~thereto~~ to the fund in proportion to their contributions to the ~~same~~ fund under the provisions of ~~said~~ former article six; and all awards ~~heretofore~~ previously made under the provisions of article six shall be paid from the workers' compensation fund, or directly by the employer, under order of the ~~commissioner~~ executive director, if the employer has elected to carry his or her own risk under the provisions of section nine, article two of this chapter: Provided, That notwithstanding the repeal of ~~said~~ article six, the provisions ~~thereof shall be~~ of the article are applicable in all cases of the disease or death, because of silicosis, or an employee whose last exposure to silicon dioxide dust has occurred prior to the effective date of this section, whose claim or application for compensation benefits for silicosis, or that of his or her dependent, has not been filed prior to ~~said~~ that date, and whose employer, at the time of ~~such~~ the exposure, was subject to the provisions of ~~said~~ article six of this chapter.
§23-3-1b. Workers' compensation deficit management fund.
  (a) The Legislature hereby finds and declares that there is a substantial actuarial deficit in the workers' compensation fund. The Legislature further finds and declares that this deficit endangers the current financial viability of the workers' compensation system and the ability of the system to deliver benefits and services in the future.
  The Legislature further declares that it is the purpose of this section to identify and segregate the deficit existing in the workers' compensation fund as of the effective date of this of the enactment of this section in the year two thousand three and provide for a separate funding mechanism to retire the claim liability transferred to the deficit management fund.
  (b) There is hereby created in the state treasury a special revenue fund known as the "Workers' Compensation Deficit Management Fund". The fund shall operate as a special revenue fund whereby all deposits and payments thereto do not expire to the general revenue fund, but remain in the fund and be available for expenditure in succeeding fiscal years. Moneys in the fund shall be expended for the purpose of management and ultimately the elimination of the workers' compensation actuarial deficit. This fund shall consist of moneys transferred from the workers' compensation fund including the coal-workers' pneumoconiosis fund provided for in section eight, article four-b of this chapter, and all moneys, less the premium deposits of regular subscribing employers and self-insured employers, that exist as of the first day of July, two thousand three, in the workers' compensation fund and the catastrophe fund established under section one, article three of this chapter, revenue from any additional premiums, surcharges or assessments provided for in section four, article two of this chapter, and any other moneys or funds given, appropriated or otherwise designated or accruing to it and all earnings.
  (c) All liabilities related to claims awarded for all years prior to the first day of July, two thousand three, shall be transferred to and paid out of the deficit management fund. The deficit management fund shall exist solely for the purpose of receiving funds and making payments related to liabilities on claims awarded prior to the first day of July, two thousand three. The assets contained in and assessment income received by the fund shall not be used for any other purposes: Provided, That the commission is permitted to borrow from the deficit management fund sufficient funds to meet the short-term obligations on claims filed on or after the first day of July, two thousand three: Provided, however, That the funds borrowed shall be repaid to the deficit management fund with interest accrued at the simple rate of six percent per annum by no later than the thirtieth day of June, two thousand four. All liabilities transferred to the deficit management fund cease to be an obligation and liability of the workers' compensation fund and become the obligation of the deficit management fund.
  (d) As payments of any type become due on claims awarded prior to the first day of July, two thousand three, the executive director shall request payment of the same out of the deficit management fund account. Upon request of the executive director, the investment management board shall provide the commission an accounting of the income, to include investment income.
  (e) The commission shall administer the deficit management fund and may establish rules for the operation of the fund to ensure proper and timely delivery of payments in claims transferred to the fund for payment. The rules shall be promulgated on or before the first day of August, two thousand three.
§23-3-2. Custody, investment and disbursement of funds.
  The state treasurer ~~shall be~~ is the custodian of the workers' compensation fund and the workers' compensation deficit management fund and all premiums, deposits or other moneys ~~paid thereto~~ payable to each fund shall be deposited in the state treasury to the credit of the ~~workers' compensation~~ fund for which it was assessed, transferred or collected in the manner prescribed in ~~section five, article two of~~ this chapter. The workers' compensation fund shall consist of the premiums and deposits provided by this chapter and ~~all interest accruing thereto upon investments and deposits in the state depositories, and~~ any other moneys or funds ~~which may be~~ given, appropriated or otherwise designated or accruing ~~thereto~~ to it and all earnings. ~~Said~~ The fund shall be a separate and distinct fund ~~and shall be so kept~~ upon the books and records of the auditor and treasurer ~~and the state depositories in which any part is deposited~~. Disbursements therefrom shall be made upon requisitions signed by the ~~secretary and approved by the commissioner of the bureau of employment programs~~ executive director.
__The board of investments shall have authority to invest the surplus, reserve or other moneys belonging to the fund in the bonds of the United States, notes or bonds of this state, bridge revenue bonds of this state issued prior to the first day of January, one thousand nine hundred thirty-nine, or any bonds issued to refund the same, bonds of any county, city, town, village or school district of the state. No such investment shall be made, nor any investment sold or otherwise disposed of without the concurrence of a majority of all members of the board of investments. It shall be the duty of every county, school district or municipality issuing any bonds, to offer the same in writing to the board of investments, prior to advertising the same for sale, and the board of investments shall, within fifteen days after receipt of such offer, accept the same and purchase such bonds, or any portion thereof at par and accrued interest, or reject such offer. All securities purchased by the board of investments for investment for the workers' compensation fund shall be placed in the hands of the state treasurer as the custodian thereof, and shall be his duty to keep and account for the same as he keeps and accounts for other securities of the state, and to collect the interest thereon as the same becomes due and payable and the principal when the same is due. No notes, bonds or other securities shall be purchased by the board of investments until and unless the attorney general shall investigate the issuance of such notes, bonds or securities and shall give a written opinion to the board that the same have been regularly issued according to the constitution and the laws of this state, which opinion, if such notes, bonds or securities be purchased, shall be filed with the treasurer with such bonds or securities.
  The deficit management fund and the workers' compensation fund are participant plans as defined in section two, article six, chapter twelve of this code and are subject to the provisions of section nine-a of said article. The funds shall be invested by the investment management board in accordance with said article.
§23-3-3. Investment of surplus funds required.
  Whenever there ~~shall be~~ is in the state treasury any funds belonging to the workers' compensation fund or the deficit management fund not likely, in the opinion of the ~~commissioner~~ commission, to be required for immediate use, it ~~shall be~~ is the duty of the ~~board of investments~~ investment management board to invest the ~~same~~ funds as prescribed in ~~the preceding~~ section two of this article. Whenever it ~~may become~~ becomes necessary or expedient to use any of the invested funds ~~so invested~~, the ~~board of investments~~ investment management board, at the direction of the ~~commissioner~~ commission, shall collect, sell or otherwise realize upon any investment to the amount considered necessary or expedient to use.

§23-3-5. Authorization to require the electronic invoices and transfers.

  (a) The workers' compensation ~~division is authorized to~~ commission may establish a program to require the acceptance of disbursements by electronic transfer from the workers' compensation fund to employers, vendors and all others lawfully entitled to receive such disbursements: Provided, That claimants may not be required to accept ~~such~~ the transfers but may elect to do so.
  (b) The ~~division is further authorized to~~ commission may establish a program to require payments of deposits, premiums and other funds into the workers' compensation fund by electronic transfer of funds.
  (c) The ~~division is further authorized to~~ commission may establish a program that invoices and other charges against the workers' compensation fund may be submitted to the ~~division~~ commission by electronic means.
  (d) Any program authorized by this section must be implemented through ~~the issuance of~~ a rule ~~pursuant to subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this code~~ promulgated by the executive director.
§23-3-6. Emergency fiscal measures.
  (a) In addition to other measures provided by this act intended by the Legislature to address the imminent threat to the fiscal solvency of the workers' compensation fund, the Legislature finds that the prudent use of available moneys may be necessary to supplement the efforts to reduce and eliminate the threat. The provisions of this sections are enacted for those purposes.
  (b) The following measures, which may be used either singly or in combination, and without regard to the order in which they are set forth herein, are authorized for the purposes described in this section:
  (1) Notwithstanding any provision of subsection (e), section four or subsection (d), section nine, article two of this chapter to the contrary, base rates may only be increased more than fifteen percent per year with the approval of the joint committee on government and finance but in no instance shall base rates be increased by more than eighteen and one-half percent during the two- year rate period for fiscal years two thousand four and two thousand five.
  (2) Upon meeting the conditions and requirements of subsection (a), section eight-b, article four-b of this chapter, the commission may expend the assets described in said subsection (a) and any income earned thereon to satisfy the obligations of the workers' compensation deficit management fund.
  (3) Upon meeting the conditions and requirements of subsections (b) and (c) , section eight- b, article four-b of this chapter, and upon appropriation of the Legislature, the commission may expend the assets described in said subsection (b) and any income earned thereon to satisfy the obligations of the deficit management fund.
  (4)If in any year expenditures from the deficit management fund exceed assets in that fund, the executive director may under the following conditions request a transfer of moneys from the workers' compensation fund. Prior to requesting the transfer the executive director shall obtain a certificate from the commission's actuary as to whether an actuarial surplus and adequate cash flow exists in the workers' compensation fund, and if so the amount of the surplus. The executive director shall also obtain an opinion from the commission's actuary as to the amount of the deficit in the deficit management fund. The management council shall determine whether any portion of the actuarial surplus may be transferred and still maintain adequate reserves in the workers's compensation fund for claims liabilities of the workers' compensation fund. Upon meeting the requirements of this subsection, the executive director shall, upon approval of the council, submit a written request to the joint committee on government and finance that an amount of the surplus determined by the Legislature be transferred by appropriation from the workers' compensation fund to the workers compensation deficit management fund. Upon appropriation of the Legislature, the commission may expend the assets transferred and any income earned thereon to satisfy the obligations of the deficit management fund.
  (5) If in any year expenditures from the deficit management fund exceed assets in that fund, the executive director may under the following conditions request a transfer of moneys from the principal of the West Virginia tobacco settlement medical trust fund created in section two, article eleven-a, chapter four of this code. Prior to requesting the transfer the executive director shall obtain an opinion from the commission's actuary as to the amount of the deficit in the deficit management fund. Upon meeting the requirements of this subsection, the executive director shall, upon approval of the council, submit a written request to the joint committee on government and finance that an amount determined by the Legislature be transferred by appropriation from the principal of the West Virginia tobacco settlement medical trust fund to the workers compensation deficit management fund. Upon appropriation of the Legislature, the commission may expend the assets transferred and any income earned thereon to satisfy the obligations of the deficit management fund.
  (6)(A) If in any year expenditures from the deficit management fund exceed assets in that fund, the executive director may under the following conditions request a transfer of moneys from the general revenue fund of the state. Prior to requesting the transfer the executive director shall obtain an opinion from the commission's actuary as to the amount of the deficit in the deficit management fund. Upon meeting the requirements of this subsection, the executive director shall, upon approval of the council, submit a written request to the governor to provide for a general reduction of appropriations for the year in general revenue to provide moneys for transfer to the deficit management fund. The executive director shall also submit a request to the joint committee on government and finance that an amount determined by the Legislature be transferred by appropriation from the general revenue fund to the workers compensation deficit management fund. Upon appropriation of the Legislature, the commission may expend the assets transferred and any income earned thereon to satisfy the obligations of the deficit management fund.
  (B) The governor may direct the secretary of administration to reduce equally and pro rata all appropriations out of general revenue in such a degree as the governor may determine to be necessary for the purposes of this subdivision.
  (7) Upon any exercise of the authority granted by this section, the executive director shall not increase benefit rates as provided in section fourteen, article four of this chapter and shall conduct an investigation into the causes of the deficit and determine the best course of action to alleviate the shortfall.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.

§23-4-1. To whom compensation fund disbursed; occupational pneumoconiosis and other occupational diseases included in "injury" and "personal injury"; definition of occupational pneumoconiosis and other occupational diseases.

  (a) Subject to the provisions and limitations elsewhere in this chapter ~~set forth~~, the ~~commissioner~~ commission shall disburse the workers' compensation fund to the employees of employers subject to this chapter, ~~which employees~~ who have received personal injuries in the course of and resulting from their covered employment or to the dependents, if any, of ~~such~~ the employees in case death has ensued, according to the provisions hereinafter made; and also for the expenses of the administration of this chapter, as provided in section two, article one of this chapter: Provided, That in the case of any employees of the state and its political subdivisions, including: Counties; municipalities; cities; towns; any separate corporation or instrumentality established by one or more counties, cities or towns as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns; any agency or organization established by the department of mental health for the provision of community health or mental retardation services and which is supported, in whole or in part, by state, county or municipal funds; board, agency, commission, department or spending unit, including any agency created by rule of the supreme court of appeals, who have received personal injuries in the course of and resulting from their covered employment, ~~such~~ the employees are ineligible to receive compensation while ~~such~~ the employees are at the same time and for the same reason drawing sick leave benefits. ~~Such~~ The state employees may only use sick leave for nonjob-related absences consistent with sick leave ~~utilization~~ use and may draw workers' compensation benefits only where there is a job-related injury. This proviso shall not apply to permanent benefits: Provided, however, That ~~such~~ the employees may collect sick leave benefits until receiving temporary total disability benefits. The division of personnel shall promulgate rules pursuant to article three, chapter twenty-nine-a of this code relating to use of sick leave benefits by employees receiving personal injuries in the course of and resulting from covered employment: Provided further, That in the event an employee is injured in the course of and resulting from covered employment and ~~such~~ the injury results in lost time from work, and ~~such~~ the employee for whatever reason uses or obtains sick leave benefits and subsequently receives temporary total disability benefits for the same time period, ~~such~~ the employee may be restored sick leave time taken by him or her as a result of the compensable injury by paying to his or her employer the temporary total disability benefits received or an amount equal to the temporary total disability benefits received. ~~Such~~ The employee shall be restored sick leave time on a day-for-day basis which corresponds to temporary total disability benefits paid to the employer: And provided further, That since the intent of this ~~paragraph~~ subsection is to prevent an employee of the state or any of its political subdivisions from collecting both temporary total disability benefits and sick leave benefits for the same time period, nothing ~~herein may be construed to prevent~~ in this subsection prevents an employee of the state or any of its political subdivisions from electing to receive either sick leave benefits or temporary total disability benefits but not both.
  (b) For the purposes of this chapter, the terms "injury" and "personal injury" ~~shall include~~ includes occupational pneumoconiosis and any other occupational disease, as hereinafter defined, and the ~~commissioner~~ commission shall ~~likewise~~ also disburse the workers' compensation fund to the employees of ~~such~~ the employers in whose employment ~~such~~ the employees have been exposed to the hazards of occupational pneumoconiosis or other occupational disease and in this state have contracted occupational pneumoconiosis or other occupational disease, or have suffered a perceptible aggravation of an existing pneumoconiosis or other occupational disease, or to the dependents, if any, of ~~such~~ the employees, in case death has ensued, according to the provisions hereinafter made: Provided, That compensation shall not be payable for the disease of occupational pneumoconiosis, or death resulting ~~therefrom~~ from the disease, unless the employee has been exposed to the hazards of occupational pneumoconiosis in the state of West Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure to such hazards, or for any five of the fifteen years immediately preceding the date of ~~such~~ his or her last exposure. An application for benefits on account of occupational pneumoconiosis shall set forth the name of the employer or employers and the time worked for each~~, and the commissioner~~. The commission may allocate to and divide any charges resulting from such claim among the employers by whom the claimant was employed for as much as sixty days during the period of three years immediately preceding the date of last exposure to the hazards of occupational pneumoconiosis. The allocation shall be based upon the time and degree of exposure with each employer.
  (c) For the purposes of this chapter, disability or death resulting from occupational pneumoconiosis, as defined in ~~the immediately succeeding sentence,~~ subsection (d) of this section shall be treated and compensated as an injury by accident.
  (d) Occupational pneumoconiosis is a disease of the lungs caused by the inhalation of minute particles of dust over a period of time due to causes and conditions arising out of and in the course of the employment. The term "occupational pneumoconiosis" ~~shall include~~ includes, but ~~shall~~ is not be limited to, such diseases as silicosis, anthracosilicosis, coal worker's pneumoconiosis, commonly known as black lung or miner's asthma, silico-tuberculosis (silicosis accompanied by active tuberculosis of the lungs), coal worker's pneumoconiosis accompanied by active tuberculosis of the lungs, asbestosis, siderosis, anthrax and any and all other dust diseases of the lungs and conditions and diseases caused by occupational pneumoconiosis which are not specifically designated ~~herein~~ in this section meeting the definition of occupational pneumoconiosis set forth in ~~the immediately preceding sentence~~ this subsection.
  (e) In determining the presence of occupational pneumoconiosis, X-ray evidence may be considered but shall not be accorded greater weight than any other type of evidence demonstrating occupational pneumoconiosis.
  (f) For the purposes of this chapter, occupational disease means a disease incurred in the course of and resulting from employment. No ordinary disease of life to which the general public is exposed outside of the employment ~~shall be~~ is compensable except when it follows as an incident of occupational disease as defined in this chapter. Except in the case of occupational pneumoconiosis, a disease shall be ~~deemed~~ considered to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances: (1) That there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that it ~~must appear~~ appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.
  (g) No award shall be made under the provisions of this chapter for any occupational disease contracted prior to the first day of July, one thousand nine hundred forty-nine. An employee shall be ~~deemed~~ considered to have contracted an occupational disease within the meaning of this ~~paragraph~~ subsection if the disease or condition has developed to such an extent that it can be diagnosed as an occupational disease.
  (h) Claims for occupational disease as ~~hereinbefore~~ defined in subsection (f) of this section, except occupational pneumoconiosis, shall be processed in like manner as claims for all other personal injuries.
§23-4-1a. Report of injuries by employee.
  Every employee who sustains an injury subject to this chapter, or his or her representative, shall immediately on the occurrence of ~~such~~ the injury or as soon thereafter as practicable give or cause to be given to the employer or any of the employer's agents a written notice of the occurrence of ~~such~~ the injury, with like notice or a copy ~~thereof~~ of the notice to the workers' compensation ~~division~~ commission stating in ordinary language the name and address of the employer, the name and address of the employee, the time, place, nature and cause of the injury, and whether temporary total disability has resulted ~~therefrom~~ from the injury. ~~Such~~ The notice shall be given personally to the employer or any of the employer's agents, or may be sent by certified mail addressed to the employer at the employer's last known residence or place of business. ~~Such~~ The notice may be given to the workers' compensation ~~division~~ commission by mail.
§23-4-1b. Report of injuries by employers.
  It ~~shall be~~ is the duty of every employer to report to the ~~commissioner~~ commission every injury sustained by any person in his or her employ. ~~Such~~ The report shall be on forms prescribed by the ~~commissioner~~ commission; and shall be made within five days of the employer's receipt of the employee's notice of injury, required by section one-a of this article, or within five days after the employer has been notified by the ~~commissioner~~ commission that a claim for benefits has been filed on account of such injury, whichever is sooner, and, notwithstanding any other provision of this chapter to the contrary, ~~such~~ the five-day period may not be extended by the ~~commissioner~~ commission, but the employer ~~shall have~~ has the right to file a supplemental report at a later date. The employer's report of injury shall include a statement as to whether or not, on the basis of the information ~~then~~ available, the employer disputes the compensability of the injury or objects to the payment of temporary total disability benefits in connection ~~therewith~~ with the injury. ~~Such~~ The statements by the employer shall not prejudice the employer's right thereafter to contest the compensability of the injury, or to object to any subsequent finding or award, in accordance with article five of this chapter; but an employer's failure to make timely report of an injury as required ~~herein~~ in this section, or statements in ~~such~~ the report to the effect that the employer does not dispute the compensability of the injury or object to the payment of temporary total disability benefits for ~~such~~ the injury, shall be ~~deemed~~ considered to be a waiver of the employer's right to object to any interim payment of temporary total disability benefits paid by the ~~commissioner~~ commission with respect to any period from the date of injury to the date of the ~~commissioner's~~ commission's receipt of any objection made ~~thereto~~ to the interim payments by the employer.

§23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of medical benefits; payments of benefits during protest; right of commission to collect payments improperly made.

  (a) In any instance when a self-insured employer has denied compensability, the commission shall conduct an investigation of the facts and circumstances surrounding the injury. No later than thirty days from the commission's receipt of notice of the denial, the commission shall respond to the issue of the compensability of the injury. In any claim for benefits under this chapter, the workers' compensation ~~division~~ commission shall determine whether the claimant has sustained a compensable injury within the meaning of section one of this article and ~~the division shall~~ enter an order giving all parties immediate notice of ~~such~~ the decision.
  (1) The ~~division~~ commission may enter an order conditionally approving the claimant's application if the ~~division~~ commission finds that obtaining additional medical evidence or evaluations or other evidence related to the issue of compensability would aid the ~~division~~ commission in making a correct final decision. Benefits shall be paid during the period of conditional approval; however, if the final decision is one that rejects the claim, ~~then~~ any ~~such~~ the payments shall be considered an overpayment. The ~~division~~ commission or self-insured employer may only recover the amount of ~~such an~~ the overpayment as provided for in subsection ~~(i)~~(h) of this section.
  (2) In making a determination regarding the compensability of a newly filed claim or upon a filing for the reopening of a prior claim pursuant to the provisions of section sixteen of this article based upon an allegation of recurrence, reinjury, aggravation or progression of the previous compensable injury or in the case of a filing of a request for any other benefits under the provisions of this chapter, the ~~division~~ commission shall consider the date of the filing of the claim for benefits for a determination of the following:
  (A) Whether the claimant had a scheduled shutdown beginning within one week of the date of the filing; or
  (B) Whether the claimant received notice within sixty days of the filing that his or her employment position was to be eliminated, including, but not limited to, the claimant's worksite, a layoff or the elimination of the claimant's employment position; or
  (C) Whether the claimant is receiving unemployment compensation benefits at the time of the filing; or
  (D) Whether the claimant has received unemployment compensation benefits within sixty days of the filing.
  In the event of an affirmative finding upon any of these four factors, ~~then~~ ~~such~~ the finding shall be given probative weight in the overall determination of the compensability of the claim or of the merits of the reopening request.
  (3) Any party ~~shall have the right to~~ may object to the order of the ~~division~~ commission and obtain an evidentiary hearing as provided in section one, article five of this chapter.
  (b) Where it appears from the employer's report, or from proper medical evidence, that a compensable injury will result in a disability which will last longer than three days as provided in section five of this article, the ~~division~~ commission may immediately enter an order commencing the payment of temporary total disability benefits to the claimant in the amounts provided for in sections six and fourteen of this article, and the payment of the expenses provided for in subsection (a), section three of this article, relating to ~~said~~ the injury, without waiting for the expiration of the thirty-day period during which objections may be filed to ~~such~~ the findings as provided in section one, article five of this chapter. The ~~division~~ commission shall enter an order commencing the payment of temporary total disability or medical benefits within fifteen days of receipt of either the employee's or employer's report of injury, whichever is received sooner, and also upon receipt of either a proper physician's report or any other information necessary for a determination. The ~~division~~ commission shall give to the parties immediate notice of any order granting temporary total disability or medical benefits. When an order granting temporary total disability benefits is made, the claimant's return to work potential shall be assessed. The commission may schedule medical and vocational evaluation of the claimant and assign appropriate personnel to expedite the claimant's return to work as soon as reasonably possible.
  (c) The ~~division~~ commission may enter orders granting temporary total disability benefits upon receipt of medical evidence justifying the payment of ~~such~~ the benefits. ~~In no claim shall~~ The ~~division~~ commission may not enter an order granting prospective temporary total disability benefits for a period of more than ninety days: Provided, That when the ~~division~~ commission determines that the claimant remains disabled beyond the period specified in the prior order granting temporary total disability benefits, the ~~division~~ commission shall enter an order continuing the payment of temporary total disability benefits for an additional period not to exceed ninety days and shall give immediate notice to all parties of ~~such~~ the decision.
  (d) Upon receipt of the first report of injury in claim, the ~~division~~ commission shall request from the employer or employers any wage information necessary for determining the rate of benefits to which the employee is entitled. If an employer does not furnish the ~~division~~ commission with this information within fifteen days from the date the ~~division~~ commission received the first report of injury in the case, the employee shall be paid temporary total disability benefits for lost time at the rate the ~~division~~ commission obtains from reports made pursuant to ~~section eleven, article ten, chapter twenty-one-a of this code~~ subsection (b), section two, article two of this chapter. If no ~~such~~ wages have been reported, ~~then~~ the ~~division~~ commission shall make ~~such~~ the payments at the rate the ~~division~~ commission finds would be justified by the usual rate of pay for the occupation of the injured employee. The ~~division~~ commission shall adjust the rate of benefits both retroactively and prospectively upon receipt of proper wage information. The ~~division~~ commission shall have access to all wage information in the possession of any state agency.
  (e) Subject to the limitations set forth in section sixteen of this article, upon a finding of the ~~division~~ commission or a self-insured employer that a claimant who has sustained a previous compensable injury which has been closed, ~~by any order of the division,~~ or by the claimant's return to work, suffers further temporary total disability or requires further medical or hospital treatment resulting from the compensable injury, the ~~division~~ commission or the self-insured employer shall immediately ~~enter an order commencing~~ commence the payment of temporary total disability benefits to the claimant in the amount provided for in sections six and fourteen of this article, and the expenses provided for in subsection (a), section three of this article, relating to ~~said~~ the disability, without waiting for the expiration of the thirty-day period during which objections may be filed ~~to such findings as provided in section one, article five of this chapter~~. The ~~division~~ commission or self-insured employer shall give immediate notice to the parties of its ~~order~~ decision.
  (f) Where the employer is a subscriber to the workers' compensation fund under the provisions of article three of this chapter, and upon the findings aforesaid, the ~~division~~ commission shall mail all workers' compensation checks paying temporary total disability benefits directly to the claimant and not to the employer for delivery to the claimant.
  (g) Where the employer has elected to carry its own risk under section nine, article two of this chapter, and upon the findings aforesaid, the ~~division~~ self-insured employer shall immediately ~~issue a pay order directing the employer to~~ pay ~~such~~ the amounts ~~as are~~ due the claimant for temporary total disability benefits. A copy of the ~~order~~ notice shall be sent to the claimant. The self-insured employer shall commence such payments by mailing or delivering the payments directly to the employee within ten days of the date of the receipt of the pay order by the employer. If the self-insured employer believes that its employee is entitled to benefits, the employer may start payments before receiving a pay order from the division.
  (h) In the event that an employer files a timely objection to any order of the division with respect to compensability, or any order denying an application for modification with respect to temporary total disability benefits, or with respect to those expenses outlined in subsection (a), section three of this article, the division shall continue to pay to the claimant such benefits and expenses during the period of such disability. Where it is subsequently found by the division that the claimant was not entitled to receive such temporary total disability benefits or expenses, or any part thereof, so paid, the division shall, when the employer is a subscriber to the fund, credit said employer's account with the amount of the overpayment; and, when the employer has elected to carry its own risk, the division shall refund to such employer the amount of the overpayment. The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division to the surplus fund created in section one, article three of this chapter.
  ~~(i)~~(h) When the employer has protested the compensability or applied for modification of a temporary total disability benefit award or expenses and the final decision in ~~such~~ that case determines that the claimant was not entitled to ~~such~~ the benefits or expenses, the amount of ~~such~~ benefits or expenses ~~shall be~~ are considered overpaid. The overpayment is a debt owed to the fund or a self-insured employer, as the case may be. For all awards made on and after the effective date of the amendment and reenactment of the section during the regular session of the Legislature in the year two thousand three, a lien for all overpayments is hereby created. In addition to means otherwise provided by law for the collection of a debt or enforcement of a lien, the ~~The division~~ commission or self-insured employer may ~~only~~ recover the amount of ~~such~~ overpaid benefits or expenses by withholding, in whole or in part, ~~as determined by the division~~ future ~~permanent partial~~ disability benefits payable to the individual in the same or other claims and credit ~~such~~ the amount against the overpayment until it is repaid in full.
  ~~(j)~~(i) In the event that the ~~division~~ commission finds that, based upon the employer's report of injury, the claim is not compensable, the ~~division~~ commission shall provide a copy of ~~such~~ the employer's report to the claimant in addition to the order denying the claim.
  (j) If a claimant is receiving benefits paid through a wage replacement plan, salary continuation plan or other benefit plan provided by the employer to which the employee has not contributed, and that plan does not provide an offset for temporary total disability benefits to which the claimant is also entitled under this chapter as a result of the same injury or disease, the employer shall notify the commission of the duplication of the benefits paid to the claimant. Upon receipt of the notice, the commission shall reduce the temporary total disability benefits provided under this chapter, by an amount sufficient to ensure that the claimant does not receive monthly benefits in excess of the amount provided by the employer's plan or the temporary total disability benefit, whichever is greater: Provided, That this subsection does not apply to benefits being paid under the terms and conditions of a collective bargaining agreement.
§23-4-1d. Method and time of payments for permanent disability.
  (a) If the ~~division~~ commission makes an award for permanent partial or permanent total disability, the ~~division~~ commission or self-insured employer shall start payment of benefits by mailing or delivering the amount due directly to the employee within fifteen days from the date of the award: Provided, That the ~~division~~ commission may withhold payment of the portion of the award that is the subject of ~~the following~~ subsection (b) of this section until seventy-seven days have expired without an objection being filed.
  (b) ~~On and after the first day of July, one thousand nine hundred ninety-five, whenever~~ When the ~~division~~ commission, self-insured employer, the office of judges or the ~~workers' compensation appeal board~~ intermediate court of appeals enters an order or provides notice granting the claimant a permanent total disability award and an objection or petition for appeal is ~~then~~ filed by the employer or the ~~division~~ commission, the ~~division~~ commission or self-insured employer shall begin the payment of monthly permanent total disability benefits. However, any payment for a back period of benefits from the onset date of total permanent disability to the date of the award shall be limited to a period of twelve months of benefits. If, after all litigation is completed and the time for the filing of any further objections or appeals to the award has expired, and the award of permanent total disability benefits is upheld, ~~then~~ the claimant shall receive the remainder of benefits due to him or her based upon the onset date of permanent total disability that was finally determined.
  (c) If the claimant is ~~then~~ owed any additional payment of back permanent total disability benefits, ~~then~~ the ~~division~~ commission of self-insured employer shall not only pay the claimant the sum owed but shall also add thereto interest at the simple rate of six percent per annum from the date of the initial award granting the total permanent disability to the date of the final order upholding the award. In the event that an intermediate order directed an earlier onset date of permanent total disability than was found in the initial award, the interest-earning period for that additional period shall begin upon the date of the intermediate award. Any interest payable shall be charged to the account of the employer or shall be paid by the employer if it has elected to carry its own risk.
  (d) If a timely protest to the award is filed, as provided in section one or nine, article five of this chapter, the ~~division~~ commission or self-insured employer shall continue to pay to the claimant ~~such~~ benefits during the period of ~~such~~ the disability unless it is subsequently found that the claimant was not entitled to receive the benefits, or any part thereof, ~~so paid,~~ in which event the ~~division~~ commission shall, where the employer is a subscriber to the fund, credit ~~said~~ the employer's account with the amount of the overpayment; and, where the employer has elected to carry the employer's own risk, the division shall refund to such employer the amount of the overpayment. The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division to the surplus fund created by section one, article three of this chapter. If the final decision in any case determines that a claimant was not lawfully entitled to benefits paid to him or her pursuant to a prior decision, ~~such~~ the amount of ~~benefits so~~ benefit paid shall be ~~deemed~~ considered overpaid. The overpayment is a debt owed to the fund or a self-insured employer, as the case may be, and a lien therefor is hereby created. In addition to means otherwise provided by law for the collection of a debt or enforcement of a lien, the ~~The division~~ commission or self-insured employer may ~~only~~ recover ~~such~~ that amount by withholding, in whole or in part, as determined by the ~~division~~ commission, future ~~permanent partial~~ disability benefits payable to the individual in the same or other claims and credit ~~such~~ the amount against the overpayment until it is repaid in full.
  (e) An award for permanent partial disability shall be made as expeditiously as possible and in accordance with the time frame requirements promulgated by the management council.
__(f) If a claimant is receiving benefits paid through a retirement plan, wage replacement plan, salary continuation plan or other benefit plan provided by the employer to which the employee has not contributed, and that plan does not provide an offset for permanent total disability benefits to which the claimant is also entitled under this chapter as a result of the same injury or disease, the employer shall notify the commission of the duplication of the benefits paid to the claimant. Upon receipt of the notice, the commission shall reduce the permanent total disability benefits provided under this chapter, by an amount sufficient to ensure that the claimant does not receive monthly benefits in excess of the amount provided by the employer's plan or the permanent total disability benefit, whichever is greater: Provided, That this subsection does not apply to benefits being paid under the terms and conditions of a collective bargaining agreement.

§23-4-1e. Temporary total disability benefits not to be paid for periods of correctional center or jail confinement; denial of workers' compensation benefits for injuries or disease incurred while confined.

(a) Notwithstanding any provision of this code to the contrary, no person shall be jurisdictionally entitled to temporary total disability benefits for that period of time in excess of three days during which ~~such~~ that person is ~~incarcerated~~ confined in a ~~penitentiary or~~ state correctional center, county or regional jail: Provided, That ~~incarceration~~ confinement shall not affect the claimant's eligibility for payment of expenses: Provided, however, That this subsection is applicable only to injuries and diseases incurred prior to any period of ~~incarceration~~ confinement. Upon release from confinement, the payment of benefits for the remaining period of temporary total disability shall be made if justified by the evidence and authorized by order of the ~~commissioner~~ commission.
(b) Notwithstanding any provision of this code to the contrary, no person ~~incarcerated~~ confined in a ~~penitentiary or~~ state correctional center, county or regional jail who suffers injury or a disease in the course of and resulting from his or her work during ~~such~~ the period of ~~incarceration~~ confinement which work is imposed by the administration of the ~~penitentiary or~~ state correctional center, county or regional jail and is not suffered during ~~such~~ the person's usual employment with his or her usual employer when not ~~incarcerated~~ confined shall receive benefits under the provisions of this chapter for ~~such~~ the injury or disease.

§23-4-1g. Weighing of evidence.

(a) For all awards made on or after the effective date of the amendment and re-enactment of this section during the year two thousand three, resolution of any issue raised in administering this chapter shall be based on a weighing of all evidence pertaining to the issue and a finding that a preponderance of the evidence supports the chosen manner of resolution. The process of weighing evidence shall include, but not be limited to, an assessment of the relevance, credibility, materiality and reliability that the evidence possesses in the context of the issue presented. Under no circumstances will an issue be resolved by allowing certain evidence to be dispositive simply because it is reliable and is most favorable to a party's interests or position. If after weighing all of the evidence regarding an issue in which a claimant has an interest, there is a finding that an equal amount of evidentiary weight exists favoring conflicting matters for resolution, the resolution that is most consistent with the claimant's position will be adopted.
(b) Except as provided in subsection (a) of this section, a claim for compensation filed pursuant to this chapter must be decided on its merit and not according to any principle that requires statutes governing workers' compensation to be liberally construed because they are remedial in nature. No such principle may be used in the application of law to the facts of a case arising out of this chapter, or in determining the constitutionality of this chapter.

§23-4-2. Disbursement where injury is self-inflicted or intentionally caused by employer; legislative declarations and findings; "deliberate intention" defined.

  (a) Notwithstanding anything ~~hereinbefore or hereinafter~~ contained in this chapter, no employee or dependent of any employee is entitled to receive any sum from the workers' compensation fund ~~or to direct compensation from any employer making the election and receiving the permission mentioned in section nine, article two of this chapter~~, from a self-insured employer, or otherwise under the provisions of this chapter, on account of any personal injury to or death to any employee caused by a self-inflicted injury or the intoxication of ~~such~~ the employee.
  (b) For the purpose of this chapter, the ~~commissioner~~ commission may cooperate with the office of miners' health, safety and training and the state division of labor in promoting general safety programs and in formulating rules to govern hazardous employments.
  ~~(b)~~ (c) If injury or death result to any employee from the deliberate intention of his or her employer to produce ~~such~~ the injury or death, the employee, the widow, widower, child or dependent of the employee has the privilege to take under this chapter, and has a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter.
  ~~(c)~~ (d) (1) It is declared that enactment of this chapter and the establishment of the workers' compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as ~~herein~~ expressly provided in this chapter, and to establish a system which compensates even though the injury or death of an employee may be caused by his or her own fault or the fault of a co-employee; that the immunity established in sections six and six-a, article two of this chapter is an essential aspect of this workers' compensation system; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those so immunized from litigation outside the workers' compensation system except as ~~herein~~ expressly provided in this chapter; that, in enacting the immunity provisions of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter.
  (2) The immunity from suit provided under this section and under section six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with "deliberate intention". This requirement may be satisfied only if:
  (i) It is proved that ~~such~~ the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct; or
  (ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:
  (A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
  (B) That the employer had a subjective realization and an appreciation of the existence of ~~such~~ the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by ~~such~~ the specific unsafe working condition;
  (C) That ~~such~~ the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of ~~such~~ the employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
  (D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), ~~hereof~~ inclusive, of this paragraph, ~~such~~ the employer nevertheless thereafter exposed an employee to ~~such~~ the specific unsafe working condition intentionally; and
  (E) That ~~such employee so exposed~~ the employee exposed suffered serious injury or death as a direct and proximate result of ~~such~~ the specific unsafe working condition.
  (iii) In cases alleging liability under the provisions of ~~the preceding~~ paragraph (ii) of this subdivision:
  (A) No punitive or exemplary damages shall be awarded to the employee or other plaintiff;
  (B) Notwithstanding any other provision of law or rule to the contrary, and consistent with the legislative findings of intent to promote prompt judicial resolution of issues of immunity from litigation under this chapter, the court shall dismiss the action upon motion for summary judgment if it finds, pursuant to rule 56 of the rules of civil procedure that one or more of the facts required to be proved by the provisions of subparagraphs (A) through (E), ~~of the preceding paragraph (ii)~~ inclusive, paragraph (ii) of this subdivision do not exist, and the court shall dismiss the action upon a timely motion for a directed verdict against the plaintiff if after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court determines that there is not sufficient evidence to find each and every one of the facts required to be proven by the provisions of subparagraphs (A) through (E), ~~of the preceding paragraph (ii)~~ inclusive, paragraph (ii) of this subdivision; and
  (C) The provisions of this paragraph and of each subparagraph thereof are severable from the provisions of each other subparagraph, subsection, section, article or chapter of this code so that if any provision of a subparagraph of this paragraph is held void, the remaining provisions of this act and this code remain valid.
  ~~(d)~~ (e) The reenactment of this section in the regular session of the Legislature during the year one thousand nine hundred eighty-three does not in any way affect the right of any person to bring an action with respect to or upon any cause of action which arose or accrued prior to the effective date of ~~such~~ the reenactment.

§23-4-3. Schedule of maximum disbursements for medical, surgical, dental and hospital treatment; legislative approval; guidelines; preferred provider agreements; charges in excess of scheduled amounts not to be made; required disclosure of financial interest in sale or rental of medically related mechanical appliances or devices; promulgation of rules to enforce requirement; consequences of failure to disclose; contract by employer with hospital, physician, etc., prohibited; criminal penalties for violation; payments to certain providers prohibited; medical cost and care programs; payments; interlocutory orders.

  (a) The workers' compensation ~~division~~ commission shall establish and alter from, time to time, as the ~~division may determine to be~~ commission determines appropriate, a schedule of the maximum reasonable amounts to be paid to health care providers, providers of rehabilitation services, providers of durable medical and other goods and providers of other supplies and medically related items or other persons, firms or corporations for the rendering of treatment or services to injured employees under this chapter. The ~~division~~ commission also, on the first day of each regular session and also from time to time, as the ~~division~~ commission may consider appropriate, shall submit the schedule, with any changes thereto, to the Legislature. ~~The promulgation of the schedule is not subject to the legislative rule-making review procedures established in sections nine through sixteen, article three, chapter twenty-nine-a of this code.~~
  The ~~division~~ commission shall disburse and pay from the fund for ~~such~~ personal injuries to ~~such~~ the employees ~~as may be~~ who are entitled ~~thereto hereunder~~ to the benefits under this chapter as follows:
  (1) ~~Such sums~~ Sums for health care services, rehabilitation services, durable medical and other goods and other supplies and medically related items as may be reasonably required. The ~~division~~ commission shall determine that which is reasonably required within the meaning of this section in accordance with the guidelines developed by the health care advisory panel pursuant to section three-b of this article: Provided, That nothing ~~herein~~ in this section shall prevent the implementation of guidelines applicable to a particular type of treatment or service or to a particular type of injury before guidelines have been developed for other types of treatment or services or injuries: Provided, however, That any guidelines for utilization review which are developed in addition to the guidelines provided for in said section may be ~~utilized~~ used by the ~~division~~ commission until superseded by guidelines developed by the health care advisory panel pursuant to said section. Each health care provider who seeks to provide services or treatment which are not within any ~~such~~ guideline shall submit to the ~~division~~ commission specific justification for the need for ~~such~~ the additional services in the particular case and the ~~division~~ commission shall have the justification reviewed by a health care professional before authorizing ~~any such~~ the additional services. The ~~division is authorized to~~ commission may enter into preferred provider and managed care agreements.
  (2) Payment for health care services, rehabilitation services, durable medical and other goods and other supplies and medically related items authorized under this subsection may be made to the injured employee or to the person, firm or corporation who or which has rendered ~~such~~ the treatment or furnished health care services, rehabilitation services, durable medical or other goods or other supplies and items, or who has advanced payment for ~~same~~ them, as the ~~division may deem~~ commission considers proper, but no ~~such~~ payments or disbursements shall be made or awarded by the ~~division~~ commission unless duly verified statements on forms prescribed by the ~~division shall be~~ commission have been filed with the ~~division~~ commission within ~~two years~~ six months after the rendering of ~~such~~ the treatment or the delivery of such goods, supplies or items or within ninety days of a subsequent compensability ruling if a claim is initially rejected: Provided, That no payment ~~hereunder~~ under this section shall be made unless ~~such~~ a verified statement shows no charge for or with respect to ~~such~~ the treatment or for or with respect to any of the items specified ~~above~~ in this subdivision has been or will be made against the injured employee or any other person, firm or corporation.~~, and when~~ When an employee covered under the provisions of this chapter is injured in the course of and as a result of his or her employment and is accepted for health care services, rehabilitation services, or the provision of durable medical or other goods or other supplies or medically related items, the person, firm or corporation rendering ~~such~~ the treatment ~~is hereby prohibited from making~~ may not make any charge or charges ~~therefor~~ for the treatment or with respect ~~thereto~~ to the treatment against the injured employee or any other person, firm or corporation which would result in a total charge for the treatment rendered in excess of the maximum amount set forth therefor in the ~~division's~~ commission's schedule ~~established as aforesaid~~.
  (3) Any pharmacist filling a prescription for medication for a workers' compensation claimant shall dispense a generic brand of the prescribed medication if a generic brand exits. If a generic brand does not exist, ~~then~~ the pharmacist may dispense the name brand. In the event that a physician wishes to prescribe the use of the name brand of a given prescription medication, ~~then~~ he or she must indicate in his or her own handwriting on the prescription order form that the brand name medication is to be issued. In the event that a claimant wishes to receive the name brand medication in lieu of the generic brand and if the physician has not indicated that the brand name is required, ~~then~~ the claimant may receive the name brand medication but, in that event, the claimant ~~will be~~ is personally liable for the difference in costs between the generic brand medication and the brand name medication.
  (4) In the event that a claimant elects to receive health care services from a health care provider from outside of the state of West Virginia and if that health care provider refuses to abide by and accept as full payment the reimbursement made by the workers' compensation ~~division~~ commission pursuant to the schedule of maximum reasonable amounts of fees authorized by subsection (a) of this section, ~~then,~~ with the exceptions noted below, the claimant ~~will be~~ is personably liable for the difference between the scheduled fee and the amount demanded by the out- of-state health care provider.
  (A) In the event of an emergency where there is an urgent need for immediate medical attention in order to prevent the death of a claimant or to prevent serious and permanent harm to the claimant, if the claimant receives the emergency care from an out-of-state health care provider who refuses to accept as full payment the scheduled amount, ~~then that~~ the claimant ~~will~~ is not be personally liable for the difference between the amount scheduled and the amount demanded by the health care provider. Upon the claimant's attaining a stable medical condition and being able to be transferred to either a West Virginia health care provider or an out-of-state health care provider who has agreed to accept the scheduled amount of fees as payment in full, if ~~such~~ the claimant refuses to seek the specified alternative health care providers, ~~then~~ he or she ~~will be~~ is personally liable for the difference in costs between the scheduled amount and the amount demanded by the health care provider for services provided after attaining stability and being able to be transferred.
  (B) In the event that there is no health care provider reasonably near to the claimant's home who is qualified to provide the claimant's needed medical services ~~and~~ who is either located in the state of West Virginia or who has agreed to accept as payment in full the scheduled amounts of fees, ~~then~~ the ~~division~~ commission, upon application by the claimant, may authorize the claimant to receive medical services from another health care provider. ~~and such~~ The claimant ~~shall~~ is not be personally liable for the difference in costs between the scheduled amount and the amount demanded by the health care provider.
  (b) No employer shall enter into any contracts with any hospital, its physicians, officers, agents or employees to render medical, dental or hospital service or to give medical or surgical attention ~~therein~~ in the hospital to any employee for injury compensable within the purview of this chapter, and no employer shall permit or require any employee to contribute, directly or indirectly, to any fund for the payment of ~~such~~ the medical, surgical, dental or hospital service ~~within such hospital~~ for ~~such~~ the compensable injury: Provided, That any employer that provides a managed health care plan for his or her employees may require an injured employee to use health care providers authorized by the managed health care plan for care and treatment of compensable injuries. Any employer violating this section ~~shall be~~ is liable in damages to the employer's employees as provided in section eight, article two of this chapter, and any employer or hospital or agent or employee thereof violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not less than one hundred dollars nor more than one thousand dollars or by ~~imprisonment~~ confinement in a county or regional jail not exceeding one year, or both: Provided, That the foregoing the provisions of this subsection shall not ~~be deemed to~~ prohibit an employer from participating in a preferred provider organization or program or a health maintenance organization or managed care organization or other medical cost containment relationship with the providers of medical, hospital or other health care: Provided, however, That nothing in this section shall ~~be deemed to~~ restrict the right of a claimant to select his or her initial health care provider for treatment of a compensable injury or disease. ~~Should such~~ If a claimant thereafter ~~wish~~ wishes to change his or her health care provider and if his or her employer has established and maintains a managed health care program consisting of a preferred provider organization or program, or a health maintenance organization, ~~then~~ the claimant shall select a new health care provider through ~~such~~ the managed care program. Moreover, if the ~~division~~ commission enters into an agreement which has been approved by the ~~compensation programs performance council~~ management council with a preferred provider organization or program, a health maintenance organization or other health care delivery organization or organizations, then if a claimant seeks to change his or her initial choice of health care provider and if the claimant's employer does not provide access to such an organization as part of the employer's general health insurance benefit, ~~then~~ the claimant shall be provided with a new health care provider from the ~~division's~~ commission's preferred provider organization or program, health maintenance organization or other health care delivery organization or organizations available to him or her.
  (c) When an injury has been reported to the ~~division~~ commission by the employer without protest, the ~~division may pay, or order an employer who or which made the election and who or which received the permission mentioned in section nine, article two of this chapter to~~ commission or self-insured employer may pay, within the maximum amount provided by schedule established ~~by the division as aforesaid~~ under this section, bills for health care services without requiring the injured employee to file an application for benefits.
  (d) The ~~division~~ commission or self-insured employer shall provide for the replacement of artificial limbs, crutches, hearing aids, eyeglasses and all other mechanical appliances provided in accordance with this section which later wear out, or which later need to be refitted because of the progression of the injury which caused the ~~same~~ devices to be originally furnished, or which are broken in the course of and as a result of the employee's employment. The ~~fund~~ commission or self- insured employer shall pay for these devices, when needed, notwithstanding any time limits provided by law.
  (e) No payment shall be made to a health care provider who is suspended or terminated under the terms of section three-c of this article except as provided in subsection (c) of ~~said~~ that section.
  (f) The ~~division is authorized to~~ commission may engage in and contract for medical cost containment programs, medical case management programs and utilization review programs. Payments for these programs shall be made from the ~~supersedeas reserve of the surplus~~ workers' compensation fund. Any order issued pursuant to ~~any such~~ the program shall be interlocutory in nature until an objecting party has exhausted all review processes provided for by the ~~division~~ commission.
  (g) Notwithstanding the ~~foregoing~~ provisions of this section, the ~~division~~ commission may establish fee schedules, make payments and take other actions required or allowed pursuant to article twenty-nine-d, chapter sixteen of this code.
§23-4-3b. Creation of health care advisory panel.
  The ~~commissioner~~ commission shall establish a health care advisory panel consisting of representatives of the various branches and specialties among health care providers in this state. There shall be a minimum of five members of the health care advisory panel who shall receive reasonable compensation for their services and reimbursement for reasonable actual expenses. Each member of this panel shall be provided appropriate professional or other liability insurance, without additional premium, by the state board of risk and insurance management created pursuant to article twelve, chapter twenty-nine of this code. The panel shall:
  (a) Establish guidelines for the health care which is reasonably required for the treatment of the various types of injuries and occupational diseases within the meaning of section three of this article;
  (b) Establish protocols and procedures for the performance of examinations or evaluations performed by physicians or medical examiners pursuant to sections seven-a and eight of this article;
  (c) Assist the ~~commissioner~~ commission in establishing guidelines for the evaluation of the care provided by health care providers to injured employees for purposes of section three-c of this article;
  (d) Assist the ~~commissioner~~ commission in establishing guidelines ~~as to~~ regarding the anticipated period of disability for the various types of injuries pursuant to subsection (b), section seven-a of this article; and
  (e) Assist the ~~commissioner~~ commission in establishing appropriate professional review of requests by health care providers to exceed the guidelines for treatment of injuries and occupational diseases established pursuant to subdivision (a) of this section.
§23-4-3c. Suspension or termination of providers of health care.
  (a) The ~~commissioner~~ commission may suspend for up to ~~one year~~ three years or permanently terminate the right of any health care provider, including a provider of rehabilitation services within the meaning of section nine of this article, to obtain payment for services rendered to injured employees:
  (1) If the ~~commissioner~~ commission finds that the health care provider is regularly providing excessive, medically unreasonable or unethical care to injured employees;
  (2) If the ~~commissioner~~ commission finds that a health care provider is attempting to make any charge or charges against the injured employee or any other person, firm or corporation which would result in a total charge for any treatment rendered in excess of the maximum amount set by the ~~commissioner~~ commission, in violation of section three of this article;
  (3) If the ~~commissioner~~ commission determines that the health care provider has had his or her license to practice suspended or terminated by the appropriate authority in this state or in another state; or
  (4) If the ~~commissioner~~ commission determines that the health care provider has been convicted of any crime in relation to his or her practice.; or
__(5) If the commission determines that the health care provider has made medically unsupported recommendations regarding a percentage of disability or has prescribed medically unsupported treatment including medication. The rules promulgated under this section shall establish criteria for determining whether recommendations or treatment are medically unsupported.
  The ~~commissioner~~ executive director shall consult with medical experts, including the health care advisory panel established pursuant to section three-b of this article, for purposes of determining whether a health care provider should be suspended or terminated pursuant to this section.
  (b) Upon the ~~commissioner determining~~ determination by the executive director that there is probable cause to believe that a health care provider should be suspended or terminated pursuant to this section, the ~~commissioner~~ executive director shall provide ~~such~~ the health care provider with written notice ~~which shall state~~ stating the nature of the charges against the health care provider and the time and place ~~at which such~~ of a hearing. The health care provider shall appear to show cause why the health care provider's right to receive payment under this chapter should not be suspended or terminated. ~~at which time and place such~~ At the hearing the health care provider shall be afforded an opportunity to review the ~~commissioner's~~ evidence, ~~and~~ to cross-examine the ~~commissioner's~~ witnesses, and ~~also afforded the opportunity to~~ present testimony and enter evidence in support of its position. The hearing shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. The hearing may be conducted by the ~~commissioner~~ executive director or a hearing officer appointed by the ~~commissioner~~ executive director. The ~~commissioner~~ executive director or hearing officer ~~shall have~~ has the power to subpoena witnesses, papers, records, documents and other data and things in connection with the proceeding ~~hereunder~~ under this subsection and to administer oaths or affirmations in ~~any such~~ the hearing. If, after reviewing the record of ~~such~~ the hearing, the ~~commissioner~~ executive director determines that the right of ~~such~~ the health care provider to obtain payment under this article should be suspended for a specified period of time or should be permanently terminated, the ~~commissioner~~ executive director shall issue a final order suspending or terminating the right of ~~such~~ the health care provider to obtain payment for services under this article. ~~Any health care provider so suspended or terminated shall be notified in writing and the notice shall specify the reasons for the action so taken.~~ The order shall set forth findings of fact and conclusions of law in support of the decision. The order shall be mailed to the health care provider by certified mail, return receipt requested. Any appeal by the health care provider shall be brought in the circuit court of Kanawha County or in the county in which the provider's principal place of business is located. The scope of the court's review of ~~such an appeal~~ the final order shall be as provided in section four, ~~of said~~ article five, chapter twenty nine-a of this code. The provider may be suspended or terminated, based upon the final order of the ~~commissioner~~ executive director or hearing officer, pending final disposition of any appeal. ~~Such~~ The final order may be stayed by the circuit court after hearing, but shall not be stayed in or as a result of any ex parte proceeding. If the health care provider does not appeal the final order ~~of the commissioner~~ within thirty days, it ~~shall be~~ is final.
  (c) No payment shall be made to a health care provider or to an injured employee for services provided by a health care provider after the effective date of a ~~commissioner's~~ final order terminating or suspending the health care provider: Provided, That nothing ~~herein~~ in this subsection shall prohibit payment by the ~~commissioner~~ executive director or self-insured employer to a suspended or terminated health care provider for medical services rendered where the medical services were rendered to an injured employee in an emergency situation. The suspended or terminated provider ~~is prohibited from making~~ may not make any charge or charges for any services so provided against the injured employee unless the injured employee, before any services are rendered, is given notice by the provider in writing that the provider does not participate in the workers' compensation program and that the injured employee will be solely responsible for all payments to the provider and unless the injured employee also signs a written consent, before any services are rendered, to make payment directly and to waive any right to reimbursement from the ~~commissioner~~ executive director or the self-insured employer. The written consent and waiver signed by the injured employee shall be filed by the provider with the ~~commissioner~~ executive director and shall be made a part of the claim file.
  (d) The ~~commissioner~~ executive director shall notify each claimant, whose duly authorized treating physician or other health care provider has been suspended or terminated pursuant to this section, of the suspension or termination of the provider's rights to obtain payment under this chapter and shall assist the claimant in arranging for transfer of his or her care to another physician or provider.
  (e) Each suspended or terminated provider shall post in the provider's public waiting area or areas a written notice, in the form required by the ~~commissioner~~ executive director, of the suspension or termination of the provider's rights to obtain payment under this chapter.
  (f) A suspended ~~or terminated~~ provider may apply for reinstatement at the end of the term of suspension ~~or, if terminated, after one year from the effective date of termination~~.
  (g) The ~~commissioner~~ executive director, with the approval of the management council, shall promulgate rules for the purpose of implementing this section.

§23-4-4. Funeral expenses; wrongfully seeking payment; criminal penalties.

  (a) In case the personal injury causes death, reasonable funeral or cemetery expense, in an amount to be fixed, from time to time, by the ~~division~~ commission shall be paid from the fund, payment to be made to the persons who have furnished the services and supplies, or to the persons who have advanced payment for ~~same~~ the services and supplies, as the ~~division~~ commission may ~~deem~~ determine proper, in addition to ~~such~~ any award ~~as may be~~ made to the employee's dependents.
  (b) A funeral director or cemeterian, or any person who furnished the services and supplies associated with the funeral or cemetery expenses, or a person who has advanced payment for ~~same~~ the services and supplies, is prohibited from making any charge or charges against the employee's dependents for funeral expenses which would result in a total charge for funeral expenses in excess of the amount fixed by the ~~division~~ commission unless:
  (1) The person seeking funeral expenses notifies, in writing and prior to the rendering of any service, the employee's dependent as to the exact cost of the service and the exact amount the employee's dependent would be responsible for paying in excess of the amount fixed by the ~~division~~ commission; and
  (2) The person seeking funeral expenses secures, in writing and prior to the rendering of any service, consent from the employee's dependent that he or she will be responsible to make payment for the amount in excess of the amount fixed by the ~~division~~ commission.
  (c) Any person who knowingly and willfully seeks or receives payment of funeral expenses in excess of the amount fixed by the ~~division~~ commission without satisfying both of the requirements of subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined three thousand dollars or confined in a county or regional jail for a definite term of confinement of twelve months, or both.
§23-4-6. Classification of and criteria for disability benefits.
  Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as provided in the following schedule:
  (a) The ~~expressions~~ terms "average weekly wage earnings, wherever earned, of the injured employee, at the date of injury" and "average weekly wage in West Virginia", as used in this chapter, ~~shall~~ have the meaning and shall be computed as set forth in section fourteen of this article except for the purpose of computing temporary total disability benefits for part-time employees pursuant to the provisions of section six-d of this article. Notwithstanding any provision of this code to the contrary, no annual increases will be made for changes in the average weekly wage in West Virginia for any benefit paid pursuant to the provisions of this article for fiscal year two thousand four, two thousand five or two thousand six.
  (b) If For all awards made on and after the effective date of the amendment and re-enactment of this section during the regular session of the Legislature in the year two thousand three, if the injury causes temporary total disability, the employee shall receive during the continuance ~~thereof~~ of the disability a maximum weekly benefit to be computed on the basis of ~~seventy~~ sixty-six and two-thirds percent of the average weekly wage earnings, wherever earned, of the injured employee, at the date of injury, not to exceed one hundred percent of the average weekly wage in West Virginia: Provided, That in the case of a claimant whose ~~injury occurred prior to the second day of February, one thousand nine hundred ninety-five,~~ award was granted prior to the effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three, the maximum benefit rate shall be the rate applied under the prior enactment of this subsection which was in effect at the time the injury occurred~~, and the rate shall not be affected by the amendment and reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-five~~. The minimum weekly benefits paid ~~hereunder~~ under this subdivision shall not be less than thirty-three and one-third percent of the average weekly wage in West Virginia, except as provided in sections six-d and nine of this article. In no event, however, shall ~~such~~ the minimum weekly benefits exceed the level of benefits determined by use of the ~~then~~ applicable federal minimum hourly wage: Provided, however, That any claimant receiving permanent total disability benefits, permanent partial disability benefits or dependents' benefits prior to the first day of July, one thousand nine hundred ninety-four, shall not have his or her benefits reduced based upon the requirement ~~herein~~ in this subdivision that the minimum weekly benefit shall not exceed the applicable federal minimum hourly wage.
  (c) Subdivision (b) of this section ~~shall be~~ is limited as follows: Aggregate award for a single injury causing temporary disability shall be for a period not exceeding two hundred eight weeks.
  (d) For all awards of permanent total disability benefits that are made on or after the second day of February, one thousand nine hundred ninety-five, including those claims in which a request for an award was pending before the division or which were in litigation but not yet submitted for a decision, then benefits shall be payable until the claimant attains the age necessary to receive federal old age retirement benefits under the provisions of the Social Security Act, 42 U. S. C. 401 and 402, in effect on the effective date of this section. ~~Such a~~ The claimant shall be paid benefits so as not to exceed a maximum benefit of sixty-six and two-thirds percent of the claimant's average weekly wage earnings, wherever earned, at the time of the date of injury not to exceed one hundred percent of the average weekly wage in West Virginia. The minimum weekly benefits paid ~~hereunder~~ under this section shall be as is provided for in subdivision (b) of this section. In all claims in which an award for permanent total disability benefits was made prior to the second day of February, one thousand nine hundred ninety-five, ~~such~~ the awards shall continue to be paid at the rate in effect prior to the ~~said~~ that date, subject to annual adjustments for changes in the average weekly wage in West Virginia: Provided, That the provisions of sections one through eight, inclusive, article four-a of this chapter shall be applied thereafter to all ~~such~~ prior awards that were previously subject to its provisions. A single or aggregate permanent disability of eighty-five percent or more ~~shall entitle~~ entitles the employee to a rebuttable presumption of a permanent total disability for the purpose of paragraph (2), subdivision (n) of this section: Provided, however, That the claimant must also be at least ~~forty~~ fifty percent medically impaired upon a whole body basis or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. The presumption may be rebutted if the evidence establishes that the claimant is not permanently and totally disabled pursuant to subdivision (n) of this section. Under no circumstances ~~shall~~ may the ~~division~~ commission grant an additional permanent disability award to a claimant receiving a permanent total disability award: Provided further, That if any claimant thereafter sustains another compensable injury and has permanent partial disability resulting ~~therefrom~~ from the injury, the total permanent disability award benefit rate shall be computed at the highest benefit rate justified by any of the compensable injuries~~, and the cost of any increase in the permanent total disability benefit rate shall be paid from the second injury reserve created by section one, article three of this chapter~~.
  (e) (1) For all awards made on or after the ~~second day of February, one thousand nine hundred ninety-five~~, effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three, if the injury causes permanent disability less than permanent total disability, the percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability determined, at the maximum or minimum benefit rates ~~provided for in subdivision (d) of this section:~~ as follows: Sixty-six and two-thirds percent of the average weekly wage earnings, wherever earned, of the injured employee at the date of injury, not to exceed seventy percent of the average weekly wage in West Virginia: Provided, That in the case of a claimant whose ~~injury occurred~~ claim was awarded prior to the ~~second day of February, one thousand nine hundred ninety- five,~~ effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three the maximum benefit rate shall be the rate applied under the prior enactment of this section which was in effect at the time the injury occurred~~, and the rate shall not be affected by the amendment and reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-five~~.
  (2) If a claimant is released by his or her treating physician to return to work at the job he or she held before the occupational injury occurred and if the claimant's preinjury employer does not offer the preinjury job or a comparable job to the employee when ~~such~~ a position is available to be offered, ~~then~~ the award for the percentage of partial disability shall be computed on the basis of six weeks of compensation for each percent of disability.
  (3) The minimum weekly benefit under this subdivision shall be as provided in subdivision (b) of this section for temporary total disability.
  (f) If the injury results in the total loss by severance of any of the members named in this subdivision, the percentage of disability shall be determined by the percentage of disability, specified in the following table:
  The loss of a great toe shall be considered a ten percent disability.
  The loss of a great toe (one phalanx) shall be considered a five percent disability.
  The loss of other toes shall be considered a four percent disability.
  The loss of other toes (one phalanx) shall be considered a two percent disability.
  The loss of all toes shall be considered a twenty-five percent disability.
  The loss of forepart of foot shall be considered a thirty percent disability.
  The loss of a foot shall be considered a thirty-five percent disability.
  The loss of a leg shall be considered a forty-five percent disability.
  The loss of thigh shall be considered a fifty percent disability.
  The loss of thigh at hip joint shall be considered a sixty percent disability.
  The loss of a little or fourth finger (one phalanx) shall be considered a three percent disability.
  The loss of a little or fourth finger shall be considered a five percent disability.
  The loss of ring or third finger (one phalanx) shall be considered a three percent disability.
  The loss of ring or third finger shall be considered a five percent disability.
  The loss of middle or second finger (one phalanx) shall be considered a three percent disability.
  The loss of middle or second finger shall be considered a seven percent disability.
  The loss of index or first finger (one phalanx) shall be considered a six percent disability.
  The loss of index or first finger shall be considered a ten percent disability.
  The loss of thumb (one phalanx) shall be considered a twelve percent disability.
  The loss of thumb shall be considered a twenty percent disability.
  The loss of thumb and index fingers shall be considered a thirty-two percent disability.
  The loss of index and middle fingers shall be considered a twenty percent disability.
  The loss of middle and ring fingers shall be considered a fifteen percent disability.
  The loss of ring and little fingers shall be considered a ten percent disability.
  The loss of thumb, index and middle fingers shall be considered a forty percent disability.
  The loss of index, middle and ring fingers shall be considered a thirty percent disability.
  The loss of middle, ring and little fingers shall be considered a twenty percent disability.
  The loss of four fingers shall be considered a thirty-two percent disability.
  The loss of hand shall be considered a fifty percent disability.
  The loss of forearm shall be considered a fifty-five percent disability.
  The loss of arm shall be considered a sixty percent disability.
  The total and irrecoverable loss of the sight of one eye shall be considered a thirty-three percent disability. For the partial loss of vision in one or both eyes, the percentages of disability shall be determined by the ~~division~~ commission, using as a basis the total loss of one eye.
  The total and irrecoverable loss of the hearing of one ear shall be considered a twenty-two and one-half percent disability. The total and irrecoverable loss of hearing of both ears shall be considered a fifty-five percent disability.
  For the partial loss of hearing in one or both ears, the percentage of disability shall be determined by the ~~division~~ commission, using as a basis the total loss of hearing in both ears.
  ~~Should~~ If a claimant ~~sustain~~ sustains a compensable injury which results in the total loss by severance of any of the bodily members named in this subdivision~~, die~~ or dies from sickness or noncompensable injury before the ~~division~~ commission makes the proper award for ~~such~~ the injury, the ~~division~~ commission shall make ~~such~~ the award to the claimant's dependents as defined in this chapter, if any; ~~such~~ the payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of ~~such~~ the claimant after his or her remarriage and that this liability shall not accrue to the estate of ~~such~~ the claimant and ~~shall~~ is not be subject to any debts of, or charges against, ~~such~~ the estate.
  (g) ~~Should~~ If a claimant to whom has been made a permanent partial award ~~die~~ dies from sickness or noncompensable injury, the unpaid balance of ~~such~~ the award shall be paid to claimant's dependents as defined in this chapter, if any; ~~such~~ the payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of ~~such~~ the claimant after his or her remarriage, and that this liability shall not accrue to the estate of ~~such~~ the claimant and ~~shall~~ is not be subject to any debts of, or charges against, such estate.
  (h) For the purposes of this chapter, a finding of the occupational pneumoconiosis board ~~shall have~~ has the force and effect of an award.
  (i) For the purposes of this chapter, with the exception of those injuries provided for in subdivision (f) of this section and in section six-b of this article, the degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body medical impairment that a claimant has suffered. For those injuries provided for in subdivision (f) of this section and section six-b of this article, the degree of disability shall be determined exclusively by the provisions of ~~said~~ that subdivision and ~~said~~ that section. The occupational pneumoconiosis board created pursuant to section eight-a of this article shall premise its decisions on the degree of pulmonary function impairment that claimants suffer solely upon whole body medical impairment. The workers' compensation ~~division~~ commission shall adopt standards for the evaluation of claimants and the determination of a claimant's degree of whole body medical impairment. Once the degree of medical impairment has been determined, that degree of impairment shall be the degree of permanent partial disability that shall be awarded to the claimant. This subdivision ~~shall be~~ is applicable to all injuries incurred and diseases with a date of last exposure on or after the second day of February, one thousand nine hundred ninety-five to all applications for an award of permanent partial disability made on and after ~~such~~ that date and to all applications for an award of permanent partial disability that were pending before the ~~division~~ commission or pending in litigation but not yet submitted for decision on and after ~~such~~ that date. The prior provisions of this subdivision ~~shall~~ remain in effect for all other claims.
  (j) From a list of names of seven persons submitted to the ~~commissioner~~ executive director by the health care advisory panel, the ~~commissioner~~ executive director shall appoint an interdisciplinary examining board consisting of five members to evaluate claimants, including by examination if the board so elects. The board shall be composed of three qualified physicians with specialties and expertise qualifying them to evaluate medical impairment and two vocational rehabilitation specialists who are qualified to evaluate the ability of a claimant to perform gainful employment with or without retraining. One member of the board shall be designated annually as chairperson by the ~~commissioner~~ executive director. The term of office of each member of the board shall be six years and until his or her successor has been appointed and has qualified: ~~Provided,~~ ~~That two of the persons initially appointed shall serve a term of six years, two of the remaining persons shall serve a term of four years and the remaining member shall serve a term of two years.~~ Any member of the board may be appointed to any number of terms. Any two physician members and one vocational rehabilitation specialist member shall constitute a quorum for the transaction of business. The ~~commissioner~~ executive director, from time to time, shall fix the compensation to be paid to each member of the board, and the members ~~shall~~ are also be entitled to reasonable and necessary traveling and other expenses incurred while actually engaged in the performance of their duties. The board shall perform the duties and responsibilities as assigned by the provisions of this chapter, consistent with the administrative policies developed by the ~~commissioner~~ executive director with the ~~assistance~~ approval of the ~~compensation programs performance council~~ management council.
  (1) The executive director shall establish requirements for the proper completion and support for an application for permanent total disability within an existing or a new rule no later than the first day of January, two thousand four. Upon adoption of the rule by the council, no issue of permanent total disability shall be referred to the interdisciplinary examining board unless a properly completed and supported application for permanent total disability has been first filed with the commission. Prior to the referral of any issue to the interdisciplinary examining board, the ~~division~~ commission shall conduct ~~such~~ examinations of the claimant as that it finds necessary and obtain all pertinent records concerning the claimant's medical history and reports of examinations and forward them to the board at the time of the referral. The ~~division~~ commission shall provide adequate notice to the employer of the filing of the request for a permanent total disability award and the employer shall be granted an appropriate period in which to respond to the request. The claimant and the employer may furnish all pertinent information to the board and shall furnish to the board any information requested by the board. The claimant and the employer may each submit no more than one report and opinion regarding each issue present in a given claim. The employer ~~shall be entitled to~~ may have the claimant examined by medical specialists and vocational rehabilitation specialists: Provided, That the employer is entitled to only one ~~such~~ examination on each issue present in a given claim. Any additional examinations must be approved by the ~~division~~ commission and shall be granted only upon a showing of good cause. The reports from all employer-conducted examinations must be filed with the board and served upon the claimant. The board may request that those persons who have furnished reports and opinions regarding a claimant provide it with ~~such~~ additional information as considered necessary by the board ~~may deem necessary~~. Both the claimant and the employer, as well as the ~~division~~ commission, may submit reports from experts challenging or supporting the other reports in the record regardless of whether or not ~~such an~~ the expert examined the claimant or relied solely upon the evidence of record.
  (2) If the board or a quorum ~~thereof~~ of the board elects to examine a claimant, the individual members shall conduct ~~such~~ any examinations as that are pertinent to each of their specialties. If a claim presents an issue beyond the expertise of the board, the board may obtain advice or evaluations by other specialists. In addition, if the ~~compensation programs performance council~~ management council determines that the number of applications pending before the interdisciplinary examining board has exceeded the level at which the board can review and make recommendations within a reasonable time, ~~then~~ the ~~council~~ management council may authorize the ~~commissioner~~ executive director to appoint ~~such~~ any additional members to the board ~~as may be~~ that are necessary to reduce the backlog of applications. ~~Such~~ The additional members shall be recommended by the health care advisory panel. ~~and the commissioner~~ The executive director may make ~~such~~ any appointments as he or she chooses from the recommendations. The additional board members shall not serve a set term but shall serve until the ~~council~~ management council determines that the number of pending applications has been reduced to an acceptable level.
  (3) Referrals to the board shall be limited to matters related to the determination of permanent total disability under the provisions of subdivision (n) of this section and to questions related to medical cost containment, utilization review decisions and managed care decisions arising under section three of this article.
  (4) In the event the board members elect to examine a claimant, the board shall prepare a report stating the tests, examinations, procedures and other observations that were made, the manner in which each was conducted and the results of each. The report shall state the findings made by the board and the reasons ~~therefor~~ for the findings. Copies of the reports of all ~~such~~ examinations made by the board shall be served upon the parties and the ~~division and each~~ commission. Each shall be given an opportunity to respond in writing to the findings and conclusions stated in the reports.
  (5) The board shall state its initial recommendations to the ~~division~~ commission in writing with an explanation for each ~~such~~ recommendation setting forth the reasons for each. The recommendations shall be served upon the parties and the ~~division~~ commission and each shall be afforded a thirty-day opportunity to respond in writing to the board regarding the board's recommendations. The board shall ~~then~~ review any ~~such~~ responses and issue its final recommendations. The final recommendations shall ~~then~~ be effectuated by the entry of an appropriate order by the ~~division~~ commission. For all awards for permanent total disability where the claim was filed on or after the effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three, the commission shall establish the date of onset of the claimant's permanent total disability as the date when a properly completed and supported application for permanent total disability benefits that results in a finding of permanent total disability was filed with the commission pursuant to subdivision (1), subsection (j), section six of this section: Provided, That upon notification of the commission by a claimant or his or her representative that the claimant seeks to be evaluated for permanent total disability, the commission shall send the claimant or his or her representative the proper application form. The commission shall set time limits for the return of the application. A properly completed and supported application returned within the time limits set by the commission shall be treated as if received on the date the commission was notified the claimant was seeking evaluation for permanent total disability.
  (6) Except as noted below, objections pursuant to section one, article five of this chapter to any ~~such~~ order shall be limited in scope to matters within the record developed before the workers' compensation ~~division~~ commission and the board and shall further be limited to the issue of whether the board properly applied the standards for determining medical impairment, if applicable, and the issue of whether the board's findings are clearly wrong in view of the reliable, probative and substantial evidence on the whole record. ~~Should~~ If either party ~~contend~~ contends that the claimant's condition has changed significantly since the review conducted by the board, the party may file a motion with the administrative law judge, together with a report supporting that assertion. Upon the filing of ~~such~~ the motion, the administrative law judge shall cause a copy of the report to be sent to the examining board asking the board to review the report and provide ~~such~~ comments as if the board chooses within sixty days of the board's receipt of the report. The board may ~~then~~ either supply ~~such~~ comments or, at the board's discretion, request that the claim be remanded to the board for further review ~~by the board~~. If remanded, the claimant is not required to submit to further examination by the employer's medical specialists or vocational rehabilitation specialists. Following ~~any such~~ the remand, the board shall file its recommendations with the administrative law judge for his or her review. If the board elects to respond with comments, ~~such~~ the comments shall be filed with the administrative law judge for his or her review. Following the receipt of either the board's recommendations or ~~comment~~ comments, the administrative law judge shall ~~then~~ issue a written decision ruling upon the asserted change in the claimant's condition. No additional evidence may be introduced during the review of the objection before the office of judges or elsewhere on appeal: Provided, That each party and the ~~division~~ commission may submit one written opinion on each issue pertinent to a given claim based upon a review of the evidence of record either challenging or defending the board's findings and conclusions. Thereafter, based upon the evidence ~~then~~ of record, the administrative law judge shall issue a written decision containing his or her findings of fact and conclusions of law regarding each issue involved in the objection.
  (k) Compensation payable under any subdivision of this section shall not exceed the maximum nor be less than the weekly benefits specified in subdivision (b) of this section.
  (l) Except as otherwise specifically provided in this chapter, temporary total disability benefits payable under subdivision (b) of this section shall not be deductible from permanent partial disability awards payable under subdivision (e) or (f) of this section. Compensation, either temporary total or permanent partial, under this section shall be payable only to the injured employee and the right ~~thereto~~ to the compensation shall not vest in his or her estate, except that any unpaid compensation which would have been paid or payable to the employee up to the time of his or her death, if he or she had lived, shall be paid to the dependents of ~~such~~ the injured employee if there ~~be such~~ are any dependents at the time of death.
  (m) The following permanent disabilities shall be conclusively presumed to be total in character:
  Loss of both eyes or the sight thereof.
  Loss of both hands or the use thereof.
  Loss of both feet or the use thereof.
  Loss of one hand and one foot or the use thereof.
  (n)(1) Other than for those injuries specified in subdivision (m) of this section, in order to be eligible to apply for an award of permanent total disability benefits for all injuries incurred and all diseases, including occupational pneumoconiosis, ~~with a~~ regardless of the date of last exposure, on and after the ~~second day of February, one thousand nine hundred ninety-five~~, ~~and for all requests for such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five,~~ effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three a claimant must have been awarded the sum of ~~forty~~ fifty percent in prior permanent partial disability awards, have suffered an occupational injury or disease which results in a finding that the claimant has suffered a medical impairment of ~~forty~~ fifty percent or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. Upon filing ~~such~~ an application, the claim will be reevaluated by the examining board pursuant to subdivision (i) of this section to determine if ~~he or she~~ the claimant has suffered a whole body medical impairment of ~~forty~~ fifty percent or more resulting from either a single occupational injury or occupational disease or a combination of occupational injuries and occupational diseases or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. A claimant whose prior permanent partial disability awards total eighty-five percent or more shall also be examined by the board and must be found to have suffered a whole body medical impairment of ~~forty~~ fifty percent in order for his or her request to be eligible for further review. The examining board shall review the claim as provided for in subdivision (j) of this section. If the claimant has not suffered whole body medical impairment of at least ~~forty~~ fifty percent or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, ~~then~~ the request shall be denied. Upon a finding that the claimant ~~does have a forty~~ has a fifty percent whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, ~~then~~ the review of the application ~~shall continue~~ continues as provided for in the following paragraph of this subdivision. Those claimants whose prior permanent partial disability awards total eighty-five percent or more and who have been found to have a whole body medical impairment of at least ~~forty~~ fifty percent or have sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section ~~shall then be~~ are entitled to the rebuttable presumption created pursuant to subdivision (d) for the remaining issues in the request. For the purposes of determining whether the claimant should be awarded permanent total disability benefits under the second injury provisions of subsection (d), section one, article three of this chapter, only a combination of occupational injuries and occupational diseases, including occupational pneumoconiosis, shall be considered.
  (2) A For all awards made on or after the effective date of the amendment and re-enactment of this section during the regular session of the Legislature in the year two thousand three, disability which renders the injured employee unable to engage in substantial gainful activity requiring skills or abilities which can be acquired or which are comparable to those of any gainful activity in which he or she has previously engaged with some regularity and over a substantial period of time shall be considered in determining the issue of total disability. The comparability of pre-injury income to post-disability income will not be a factor in determining permanent total disability. Geographic availability of gainful employment within a driving distance of seventy-five miles from the residence of the employee or within the distance from the residence of the employee to his pre-injury employment, whichever is greater, will be a factor in determining permanent total disability. Permanent total disability benefits shall cease at age seventy. In addition, the vocational standards adopted pursuant to subsection (m), section seven, article three, of this chapter ~~twenty- one-a of this code~~ shall be considered once they are effective.
  (3) In the event that a claimant, who has been found to have at least a ~~forty~~ fifty percent whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, is denied an award of permanent total disability benefits pursuant to this subdivision and ~~then~~ accepts and continues to work at a lesser paying job than he or she previously held, ~~then such a~~ the claimant ~~shall be~~ is eligible, notwithstanding the provisions of section nine of this article, to receive temporary partial rehabilitation benefits for a period of four years. ~~Such~~ The benefits shall be paid at the level necessary to ensure the claimant's receipt of the following percentages of the average weekly wage earnings of the claimant at the time of injury calculated as provided in this section and sections six-d and fourteen of this article:
  (A) Eighty percent for the first year;
  (B) Seventy percent for the second year;
  (C) Sixty percent for the third year; and
  (D) Fifty percent for the fourth year: Provided, That in no event shall ~~such~~ the benefits exceed one hundred percent of the average weekly wage in West Virginia. In no event shall ~~such~~ the benefits be subject to the minimum benefit amounts required by the provisions of subdivision (b) of this section.
  (4) It is the intent of the Legislature that the amendments to this section enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-nine which change criteria for an award of permanent total disability benefits be applied retroactively to all injuries incurred and all occupational diseases, including occupational pneumoconiosis, with a date of last exposure on and after the second day of February, one thousand nine hundred ninety-five, and for all requests for such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five: ~~Provided,~~ That any claimant whose application for permanent total disability benefits was rejected on or after the second day of February, one thousand nine hundred ninety-five, based on a finding that the claimant: (1) Was not awarded the sum of fifty percent in prior permanent partial disability awards; or (2) did not suffer an occupational injury or occupational disease which resulted in a finding that the claimant has suffered a medical impairment of fifty percent; or (3) did not suffer whole body medical impairment of at least fifty percent, then such claimant may, during the period beginning on the first day of July, one thousand nine hundred ninety-nine, and ending on the thirtieth day of September, one thousand nine hundred ninety-nine, file with the division a petition for reconsideration of the denial of permanent total disability benefits. After review of the petition by the division and the examining board, the division shall enter an appropriate order on the claimant's petition for reconsideration.

§23-4-6a. Benefits and mode of payment to employees and dependents for occupational pneumoconiosis; further adjustment of claim for occupational pneumoconiosis.

  If an employee is found to be permanently disabled due to occupational pneumoconiosis, as defined in section one of this article, the percentage of permanent disability ~~shall be~~ is determined by the degree of medical impairment that is found by the occupational pneumoconiosis board. The ~~division~~ commission shall enter an order setting forth the findings of the occupational pneumoconiosis board with regard to whether the claimant has occupational pneumoconiosis and the degree of medical impairment, if any, resulting therefrom. That order ~~shall be~~ is the final decision of the ~~division~~ commission for purposes of section one, article five of this chapter. If ~~such~~ a decision is objected to, the office of judges shall affirm the decision of the occupational pneumoconiosis board made following hearing unless the decision is clearly wrong in view of the reliable, probative and substantial evidence on the whole record. Compensation ~~shall be~~ is paid therefor in the same manner and at the same rate as is provided for permanent disability under the provisions of subdivisions (d), (e), (g), (h), (i), (j), (k), (m) and (n), section six of this article: Provided, That if it shall be determined by the division in accordance with the facts in the case and with the advice and recommendation of the occupational pneumoconiosis board that an employee has occupational pneumoconiosis, but without measurable pulmonary impairment therefrom, such employee shall be awarded and paid twenty weeks of benefits at the same benefit rate as hereinabove provided. for any employee who applies for occupational pneumoconiosis benefits, whose claim was filed on or after the effective date of the amendment and reenactment of this section by the Legislature during the regular session in the year two thousand three, there shall be no permanent partial disability awarded based solely upon a diagnosis of occupational pneumoconiosis, it being the intent of the Legislature to eliminate any permanent partial disability awards for occupational pneumoconiosis without a specific finding of measurable impairment.
  If the employee dies from occupational pneumoconiosis, the benefits shall be as provided for in section ten of this article; as to ~~such~~ the benefits sections eleven to fourteen, inclusive, of this article ~~shall~~ apply.
  In cases of permanent disability or death due to occupational pneumoconiosis, as defined in section one of this article, accompanied by active tuberculosis of the lungs, compensation shall be payable as for disability or death due to occupational pneumoconiosis alone.
  The provisions of section sixteen, article four and sections two, three, four and five, article five of this chapter providing for the further adjustment of claims ~~shall be~~ are applicable to the claim of any claimant who receives a permanent partial disability award for occupational pneumoconiosis.
§23-4-6b. Occupational hearing loss claims.
  (a) In all claims for occupational hearing loss caused by either a single incident of trauma or by exposure to hazardous noise in the course of and resulting from employment, the degree of permanent partial disability, if any, shall be determined in accordance with the provisions of this section and awards made in accordance with the provisions of section six of this article.
  (b) The percent of permanent partial disability for a monaural hearing loss shall be computed in the following manner:
  (1) The measured decibel loss of hearing due to injury at the sound frequencies of five hundred, one thousand, two thousand and three thousand hertz shall be determined for the injured ear and the total shall be divided by four to ascertain the average decibel loss;
  (2) The percent of monaural hearing impairment for the injured ear shall be calculated by multiplying by one and six-tenths percent the difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred percent hearing impairment, which maximum is reached at ninety decibels; and
  (3) The percent of monaural hearing impairment so obtained shall ~~then~~ be multiplied by twenty-two and one-half to ascertain the degree of permanent partial disability.
  (c) The percent of permanent partial disability for a binaural hearing loss shall be computed in the following manner:
  (1) The measured decibel loss of hearing due to injury at the sound frequencies of five hundred, one thousand, two thousand and three thousand hertz ~~shall be~~ is determined for each ear and the total for each ear shall be divided by four to ascertain the average decibel loss for each ear;
  (2) The percent of hearing impairment for each ear ~~shall be~~ is calculated by multiplying by one and six-tenths percent the difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred percent hearing impairment, which maximum is reached at ninety decibels;
  (3) The percent of binaural hearing impairment shall ~~then~~ be calculated by multiplying the smaller percentage (better ear) by five, adding this figure to the larger percentage (poorer ear) and dividing the sum by six; and
  (4) The percent of binaural hearing impairment so obtained shall ~~then~~ be multiplied by fifty- five to ascertain the degree of permanent partial disability.
  (d) No permanent partial disability benefits shall be granted for tinnitus, psychogenic hearing loss, recruitment or hearing loss above three thousand hertz.
  (e) An additional amount of permanent partial disability shall be granted for impairment of speech discrimination, if any, to determine the additional amount for binaural impairment, the percentage of speech discrimination in each ear shall be added together and the result divided by two to calculate the average percentage of speech discrimination, and the permanent partial disability shall be ascertained by reference to the percentage of permanent partial disability in the table below on the line with the percentage of speech discrimination so obtained. To determine the additional amount for monaural impairment, the permanent partial disability shall be ascertained by reference to the percentage of permanent partial disability in the table below on the line with the percentage of speech discrimination in the injured ear.
TABLE
                % of Permanent
          % of Speech Discrimination                        Partial Disability
90% . . . and up to and including . . . . . 100%         0%
80% . . . and up to but not including . . . 90%        1%
70% . . . and up to but not including . . . 80%        3%
60% . . . and up to but not including . . . 70%        4%
0% . . . and up to but not including . . . 60%        5%
          (f) No temporary total disability benefits shall be granted for noise- induced hearing loss.
          (g) An application for benefits alleging a noise-induced hearing loss shall set forth the name of the employer or employers and the time worked for each. ~~and the commissioner~~ The commission shall allocate to and divide any charges resulting from ~~such~~ the claim among ~~such~~ the employers with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the period of three years immediately preceding the date of last exposure. The allocation ~~shall be~~ is based upon the time of exposure with each employer. In determining the allocation, the ~~commissioner~~ commission shall consider all the time of employment by each employer during which the claimant was so exposed and not just the time within ~~such~~ the three-year period, under the same allocation as is applied in occupational pneumoconiosis cases.
          (h) The ~~commissioner~~ commission shall provide, consistent with current practice, for prompt referral ~~of such~~ the claims for evaluation, for all medical reimbursement and for prompt authorization of hearing enhancement devices.
          (i) The provisions of this section and the amendments to section six of this article insofar as applicable to permanent partial disabilities for hearing loss ~~shall be~~ are operative as to any claim filed after thirty days from the effective date of this section.
§23-4-6d. Benefits payable to part-time employees.
          (a) For purposes of this section, a part-time employee means an employee who, at the date of injury, is customarily employed twenty-five hours per week or less on a regular basis and is classified by the employer as a part-time employee: Provided, That the term "part-time employee" shall not include an employee who regularly works more than twenty-five hours per week for the employer, nor shall it include an employee who regularly works for more than one employer and whose regular combined working hours total more than twenty-five hours per week when that employee is rendered unable to perform the duties of ~~all such~~ his or her employment as a result of the injury, nor shall it include any employee in the construction industry who works less than twenty-five hours per week.
          (b) For purposes of establishing temporary total disability weekly benefits pursuant to subdivision (b), section six of this article for part-time employees, the "average weekly wage earnings, wherever earned, of the injured person at the date of injury" shall be computed :
          (1) Until the first day of July, one thousand nine hundred ninety-four, based upon the average gross pay, wherever earned, which is received by the employee during the two months, six months or twelve months immediately preceding the date of the injury, whichever is most favorable to the injured employee; or
          (2) On and after the first day of July, one thousand nine hundred ninety-four, based upon the best average weekly gross pay, wherever earned, which is received by the employee during the best quarter of wages out of the preceding four quarters of wages as reported to the ~~commissioner~~ commission pursuant to ~~section eleven, article ten, chapter twenty-one-a of this code~~ subsection (b), section two, article two of this chapter: Provided, That for part-time employees who have been employed less than two months but more than one week prior to the date of injury or any employee whose wages have not yet been reported to the ~~commissioner~~ commission, the average weekly wage earnings shall be calculated based upon the average gross earnings in the weeks actually worked: Provided, however, That for part-time employees who have been employed one week or less, the average weekly wage earnings shall be calculated based upon the average weekly wage prevailing for the same or similar part-time employment at the time of injury except that when an employer has agreed to pay a certain hourly wage to ~~such~~ a part-time employee, the average weekly wage shall be computed by multiplying ~~such~~ the hourly wage by the regular numbers of hours contracted to be worked each week: Provided further, That notwithstanding any provision of this article to the contrary, no part-time employee shall receive temporary total disability benefits greater than his or her average weekly wage earnings as so calculated.
          (c) Notwithstanding any other provisions of this article to the contrary, benefits payable to a part-time injured employee for any permanent disability shall be computed and paid on the same basis as if the injured employee is not a part-time employee within the meaning of this section.

§23-4-7. Release of medical information to employer; legislative findings; effect of application for benefits; duty of employer.

(a) The Legislature hereby finds and declares that two of the primary objectives of the workers' compensation system established by this chapter are to provide benefits to an injured claimant promptly and to effectuate his or her return to work at the earliest possible time; that the prompt dissemination of medical information to the ~~division~~ commission and employer as to diagnosis, treatment and recovery is essential if these two objectives are to be achieved; that claimants are increasingly burdened with the task of contacting their treating physicians to request the furnishing of detailed medical information to the ~~division~~ commission and their employers; that the ~~division~~ commission is increasingly burdened with the administrative responsibility of providing copies of medical reports to the employer involved, whereas in other states the employer can obtain the necessary medical information direct from the treating physician; that much litigation is occasioned in this state because of a lack of medical information having been received by the employer as to the continuing disability of a claimant; and that detailed narrative reports from the treating physician are often necessary in order for the ~~division~~ commission, the claimant's representatives and the employer to evaluate a claim and determine whether additional or different treatment is indicated.
(b) In view of the foregoing findings, a claimant irrevocably agrees by the filing of his or her application for benefits that any physician may release to and orally discuss with the claimant's employer, or its representative, or with a representative of the ~~division~~ commission, from time to time, the claimant's medical history and any medical reports pertaining to the occupational injury or disease and to any prior injury or disease of the portion of the claimant's body to which a medical impairment is alleged containing detailed information as to the claimant's condition, treatment, prognosis and anticipated period of disability and dates as to when the claimant will reach or has reached his or her maximum degree of improvement or will be or was released to return to work. For the exclusive purposes of this chapter, the patient-physician privilege of confidentiality is waived with regard to the physician's providing this medical information to the ~~division~~ commission, the employer or to the employer's representative. Whenever a copy of any ~~such~~ medical report is obtained by the employer or its representative and the physician has not also forwarded a copy of the ~~same~~ medical report to the ~~division~~ commission, the employer shall forward a copy of ~~such~~ the medical report to the ~~division~~ commission within ten days from the date ~~such~~ the employer received the ~~same~~ medical report from ~~such~~ the physician.

§23-4-7a. Monitoring of injury claims; legislative findings; review of medical evidence; recommendation of authorized treating physician; independent medical evaluations; temporary total disability benefits and the termination thereof; mandatory action; additional authority; suspension of benefits.

          (a) The Legislature hereby finds and declares that injured claimants should receive the type of treatment needed as promptly as possible; that overpayments of temporary total disability benefits with the resultant hardship created by the requirement of repayment should be minimized; and that to achieve these two objectives it is essential that the ~~division~~ commission establish and operate a systematic program for the monitoring of injury claims where the disability continues longer than might ordinarily be expected.
          (b) In view of the foregoing findings, the ~~division~~ commission, in consultation with the health care advisory panel, shall establish guidelines as to the anticipated period of disability for the various types of injuries. Each injury claim in which temporary total disability continues beyond the anticipated period of disability so established for the injury involved shall be reviewed by the ~~division~~ commission. If satisfied, after reviewing the medical evidence, that the claimant would not benefit by an independent medical evaluation, the ~~division~~ commission shall mark the claim file accordingly and shall diary ~~such~~ the claim file as to the next date for required review which shall not exceed sixty days. If the ~~division~~ commission concludes that the claimant might benefit by an independent medical evaluation, the ~~division~~ commission shall proceed as specified in subsections (d) and (e) of this section.
          (c) When the authorized treating physician concludes that the claimant has either reached his or her maximum degree of improvement or is ready for disability evaluation, or when the claimant has returned to work, ~~such~~ the authorized treating physician may recommend a permanent partial disability award for residual impairment relating to and resulting from the compensable injury, and the following provisions ~~shall~~ govern and control:
          (1) If the authorized treating physician recommends a permanent partial disability award of fifteen percent or less, the ~~division~~ commission shall enter an award of permanent partial disability benefits based upon ~~such~~ the recommendation and all other available information.~~, and the~~ The claimant's entitlement to temporary total disability benefits ~~shall cease~~ ceases upon the entry of ~~such~~ the award unless previously terminated under the provisions of subsection (e) of this section.
          (2) If, however, the authorized treating physician recommends a permanent partial disability award in excess of fifteen percent, or recommends a permanent total disability award, the claimant's entitlement to temporary total disability benefits ~~shall cease~~ ceases upon the receipt by the ~~division~~ commission of ~~such~~ the medical report. ~~and the division~~ The commission shall refer the claimant to a physician or physicians of the ~~division's~~ commission's selection for independent evaluation prior to the entry of a permanent disability award: Provided, That unless the claimant has returned to work, the claimant shall thereupon receive benefits which shall ~~then~~ be at the permanent partial disability rate as provided in subdivision (e), section six of this article until the entry of a permanent disability award or until the claimant returns to work.~~, and which~~ The amount of ~~such~~ benefits paid prior to the receipt of ~~such~~ the independent evaluation report shall be considered and ~~deemed~~ determined to be payment of the permanent disability award ~~then~~ granted, if any. In the event that benefits actually paid exceed the amount granted by the permanent partial disability award, the claimant ~~shall be~~ is entitled to no further benefits by ~~such~~ the award, but shall not be liable by offset or otherwise for the excess paid.
          (d) When the ~~division~~ commission concludes that an independent medical evaluation is indicated, or that a claimant may be ready for disability evaluation in accordance with other provisions of this chapter, the ~~division~~ commission shall refer the claimant to a physician or physicians of the ~~division's~~ commission's selection for examination and evaluation. If the physician or physicians so selected recommend continued, additional or different treatment, the recommendation shall be relayed to the claimant and the claimant's ~~then~~ treating physician and the recommended treatment may be authorized by the ~~division~~ commission.
          (e) Notwithstanding any provision in subsection (c) of this section, the ~~division~~ commission shall enter a notice suspending the payment of temporary total disability benefits but providing a reasonable period of time during which the claimant may submit evidence justifying the continued payment of temporary total disability benefits when:
          (1) The physician or physicians selected by the ~~division~~ commission conclude that the claimant has reached his or her maximum degree of improvement; or
          (2) When the authorized treating physician ~~shall advise~~ advises the ~~division~~ commission that the claimant has reached his or her maximum degree of improvement or that he or she is ready for disability evaluation and when the authorized treating physician has not made any recommendation with respect to a permanent disability award as provided in subsection (c) of this section; or
          (3) When other evidence submitted to the ~~division~~ commission justifies a finding that the claimant has reached his or her maximum degree of improvement: Provided, That in all cases a finding by the ~~division~~ commission that the claimant has reached his or her maximum degree of improvement ~~shall terminate~~ terminates the claimant's entitlement to temporary total disability benefits regardless of whether the claimant has been released to return to work: Provided, however, That under no circumstances shall a claimant be entitled to receive temporary total disability benefits either beyond the date the claimant is released to return to work or beyond the date he or she actually returns to work.
          In the event that the medical or other evidence indicates that claimant has a permanent disability, unless he or she has returned to work, the claimant shall thereupon receive benefits which shall ~~then~~ be at the permanent partial disability rate as provided in subdivision (e), section six of this article until entry of a permanent disability award, pursuant to an evaluation by a physician or physicians selected by the ~~division~~ commission, or until the claimant returns to work. ~~and which~~ The amount of benefits shall be considered and ~~deemed~~ determined to be payment of the permanent disability award ~~then~~ granted, if any. In the event that benefits actually paid exceed the amount granted under the permanent disability award, the claimant ~~shall be~~ is entitled to no further benefits by ~~such~~ the order but shall not be liable by offset or otherwise for the excess paid.
          (f) Notwithstanding the anticipated period of disability established pursuant to the provisions of subsection (b) of this section, whenever in any claim temporary total disability ~~shall continue~~ continues longer than one hundred twenty days from the date of injury (or from the date of the last preceding examination and evaluation pursuant to the provisions of this subsection or pursuant to the directions of the ~~division~~ commission under other provisions of this chapter), the ~~division~~ commission shall refer the claimant to a physician or physicians of the ~~division~~ commission's selection for examination and evaluation in accordance with the provisions of subsection (d) of this section and the provisions of subsection (e) of this section ~~shall be~~ are fully applicable: Provided, That the requirement of mandatory examinations and evaluations pursuant to the provisions of this subsection shall not apply to any claimant who sustained a brain stem or spinal cord injury with resultant paralysis or an injury which resulted in an amputation necessitating a prosthetic appliance.
          (g) The provisions of this section are in addition to and in no way in derogation of the power and authority vested in the ~~division~~ commission by other provisions of this chapter or vested in the employer to have a claimant examined by a physician or physicians of the employer's selection and at the employer's expense, or vested in the claimant or employer to file a protest, under other provisions of this chapter.
          (h) All evaluations and examinations performed by physicians shall be performed in accordance with the protocols and procedures established by the health care advisory panel pursuant to section three-b of this article: Provided, That the physician may exceed these protocols when additional evaluation is medically necessary.
          (i) The commission may suspend benefits being paid to a claimant if the claimant refuses, without good cause, to undergo the examinations provided for in this section until the claimant submits to the examination. The executive director shall propose rules for approval by the commission to implement the provisions of this subsection.

§23-4-7b. Trial return to work.

          (a) The Legislature hereby finds and declares that it is in the interest of employees, employers and the ~~commissioner~~ commission that injured employees be encouraged to return to work as quickly as possible after an injury and that appropriate protections be afforded to injured employees who return to work on a trial basis.
          (b) Notwithstanding any other provisions of this chapter to the contrary, the injured employee shall not have his or her eligibility to receive temporary total disability benefits terminated when he or she returns to work on a trial basis as set forth ~~herein~~ in this section. An employee ~~shall be~~ is eligible to return to work on a trial basis when he or she is released to work on a trial basis by the treating physician.
          (c) When an injured employee returns to work on a trial basis, the employer shall provide a trial return to work notification to the ~~commissioner~~ commission. Upon receipt ~~thereof~~ of the notification, the ~~commissioner~~ commission shall note the date of the first day of work pursuant to the trial return and shall continue the claimant's eligibility for temporary total disability benefits, but shall temporarily suspend the payment of temporary total disability benefits during the period actually worked by the injured employee. The claim shall be closed on a temporary total disability basis either when the injured employee or the authorized treating physician notifies the ~~commissioner~~ commission that the injured employee is able to perform his or her job or automatically at the end of a period of three months from the date of the first day of work unless the employee notifies the ~~commissioner~~ commission that he or she is unable to perform the duties of the job, whichever occurs first. If the injured employee is unable to continue working due to the compensable injury for a three-month period, the injured employee shall notify the ~~commissioner~~ commission and temporary total disability benefits shall be reinstated immediately and he or she shall be referred for a rehabilitation evaluation as provided in section nine of this article. No provision of this section shall be construed to prohibit the ~~commissioner~~ commission from referring the injured employee for any permanent disability evaluation required or permitted by any other provision of this article.
          (d) Nothing in this section shall prevent the employee from returning to work without a trial return to work period.
          (e) Nothing in this section shall be construed to require an injured employee to return-to- work on a trial basis.
          (f) The provisions of this section shall be terminated and be of no further force and effect on the first day of July, ~~one thousand nine hundred ninety-eight~~ two thousand seven.
§23-4-8. Physical examination of claimant.
          The ~~commissioner shall have authority~~ commission may, after due notice to the employer and claimant, whenever in the ~~commissioner's~~ commission's opinion it ~~shall be~~ is necessary, to order a claimant of compensation for a personal injury other than occupational pneumoconiosis to appear for examination before a medical examiner or examiners selected by the ~~commissioner~~ commission; and the claimant and employer, respectively, ~~shall~~ each have the right to select a physician of the claimant's or the employer's own choosing and at the claimant's or the employer's own expense to participate in ~~such~~ the examination. All ~~such~~ examinations shall be performed in accordance with the protocols and procedures established by the health care advisory panel pursuant to section three-b of this article: Provided, That the physician may exceed these protocols when additional evaluation is medically necessary. The claimant and employer shall, respectively, be furnished with a copy of the report of examination made by the medical examiner or examiners selected by the ~~commissioner~~ commission. The respective physicians selected by the claimant and employer ~~shall~~ have the right to concur in any report made by the medical examiner or examiners selected by the ~~commissioner~~ commission, or each may file with the ~~commissioner~~ commission a separate report, which separate report shall be considered by the ~~commissioner~~ commission in passing upon the claim. If the compensation claimed is for occupational pneumoconiosis, the ~~commissioner shall have the power~~ commission may, after due notice to the employer, and whenever in the ~~commissioner's~~ commission's opinion it ~~shall be~~ is necessary, to order a claimant to appear for examination before the occupational pneumoconiosis board ~~hereinafter~~ provided for in section eight-a of this article. In any case the claimant ~~shall be~~ is entitled to reimbursement for loss of wages, and to reasonable traveling and other expenses necessarily incurred by him or her in obeying ~~such~~ the order.
          Where the claimant is required to undergo a medical examination or examinations by a physician or physicians selected by the employer, as aforesaid or in connection with any claim which is in litigation, the employer shall reimburse the claimant for loss of wages, and reasonable traveling and other expenses in connection with ~~such~~ the examination or examinations, not to exceed the expenses paid when a claimant is examined by a physician or physicians selected by the ~~commissioner~~ commission.

§23-4-8a. Occupational pneumoconiosis board; composition; term of office; duties; quorum; remuneration.

The occupational pneumoconiosis board shall consist of five licensed physicians who shall be appointed by the ~~commissioner~~ executive director. No person shall be appointed as a member of the board, or as a consultant thereto, who has not by special study or experience, or both, acquired special knowledge of pulmonary diseases. All members of the occupational pneumoconiosis board shall be physicians of good professional standing admitted to practice medicine and surgery in this state. ~~, and two of them~~ Two members shall be roentgenologists. One member of the board shall be designated annually as chairman by the ~~commissioner~~ executive director. The term of office of each member of the board shall be six years. The five members of the existing board in office on the effective date of this section shall continue to serve until their terms expire and until their successors have been appointed and have qualified. Any member of the board may be appointed to any number of terms. The function of the board is to determine all medical questions relating to cases of compensation for occupational pneumoconiosis under the direction and supervision of the ~~commissioner~~ executive director. Any three members of the board constitute a quorum for the transaction of its business if at least one of the members present is a roentgenologist. The ~~commissioner~~ executive director shall, from time to time, fix the compensation to be paid each member of the board.~~, and members~~ Members are also entitled to reasonable and necessary traveling and other expenses incurred while actually engaged in the performance of their duties. In fixing the compensation of board members, the ~~commissioner~~ executive director shall take into consideration the number of claimants a member of the board actually examines, the actual time spent by members in discharging their duties and the recommendation of the ~~compensation programs performance council~~ management council as to reasonable reimbursement per unit of time expended based on comparative data for physicians within the state in the same medical specialties.

§23-4-8b. Occupational pneumoconiosis board; procedure; autopsy.

          The occupational pneumoconiosis board, upon reference to it by the ~~commissioner~~ commission of a case of occupational pneumoconiosis, shall notify the employee, or in case he or she is dead, the claimant, and the employer to appear before ~~such~~ the board at a time and place stated in the notice. If the employee be is living, he or she shall appear before the board at the time and place specified and submit to ~~such~~ the examination, including clinical and X-ray examinations, as required by the board ~~may require~~. If a physician licensed to practice medicine in the state ~~shall make~~ makes an affidavit that the employee is physically unable to appear at the time and place designated by the board, ~~such~~ the board shall, on notice to the proper parties, change the place and time as may reasonably facilitate the hearing or examination of the employee or may appoint a qualified specialist in the field of respiratory disease to examine the claimant on behalf of the board. The employee, or in case he or she is dead, the claimant, and employer shall also produce as evidence to the board all reports of medical and X-ray examinations which may be in their respective possession or control, showing the past or present condition of the employee. If the employee be is dead, the notice of the board shall further require that the claimant produce necessary consents and permits so that an autopsy may be performed, if the board shall so ~~direct~~ directs. When in the opinion of the board an autopsy is ~~deemed~~ considered necessary accurately and scientifically to ascertain and determine the cause of death, ~~such~~ the autopsy examination shall be ordered by the board, which shall designate a duly licensed physician, a pathologist or ~~such~~ any other specialists ~~as may be deemed~~ determined necessary by the board, to make ~~such~~ the examination and tests to determine the cause of death and certify his or her or their written findings, in triplicate, to the board~~, which~~. The findings shall be public records. In the event that a claimant for compensation for ~~such~~ the death refuses to consent and permit ~~such~~ the autopsy to be made, all rights for compensation ~~shall thereupon be~~ are forfeited.
          The employee, or if he or she be dead, the claimant, and the employer, shall be entitled to be present at all examinations conducted by the board and to be represented by attorneys and physicians.
§23-4-8c. Occupational pneumoconiosis board; reports and distribution thereof; presumption; findings required of board; objection to findings; procedure thereon; limitations on refilings; consolidation of claims.
          (a) The occupational pneumoconiosis board, as soon as practicable, after it has completed its investigation, shall make its written report, to the ~~commissioner~~ commission of its findings and conclusions on every medical question in controversy and the ~~commissioner~~ commission shall send one copy ~~thereof~~ of the report to the employee or claimant and one copy to the employer.~~, and the~~ The board shall also return to and file with the ~~commissioner~~ commission all the evidence as well as all statements under oath, if any, of the persons who ~~appear~~ appeared before it on behalf of the employee or claimant, or employer, and also all medical reports and X-ray examinations produced by or on behalf of the employee or claimant, or employer.
          (b) If it can be shown that the claimant or deceased employee has been exposed to the hazard of inhaling minute particles of dust in the course of and resulting from his or her employment for a period of ten years during the fifteen years immediately preceding the date of his or her last exposure to such hazard and that ~~such~~ the claimant or deceased employee has sustained a chronic respiratory disability, ~~then~~ it shall be presumed that ~~such~~ the claimant is suffering or ~~such~~ the deceased employee was suffering at the time of his or her death from occupational pneumoconiosis which arose out of and in the course of his or her employment. This presumption ~~shall~~ is not be conclusive.
          (c) The findings and conclusions of the board shall set forth, among other things, the following:
          (1) Whether or not the claimant or the deceased employee has contracted occupational pneumoconiosis and, if so, the percentage of permanent disability resulting therefrom;
          (2) Whether or not the exposure in the employment was sufficient to have caused the claimant's or deceased employee's occupational pneumoconiosis or to have perceptibly aggravated an existing occupational pneumoconiosis or other occupational disease; and
          (3) What, if any, physician appeared before the board on behalf of the claimant or employer and what, if any, medical evidence was produced by or on behalf of the claimant or employer.
          (d) If either party objects to the whole or any part of ~~such~~ the findings and conclusions of the board, ~~such~~ the party shall file with the ~~commissioner~~ commission or, on or after the first day of July, one thousand nine hundred ninety-one, with the office of judges, within thirty days from receipt of ~~such~~ the copy to ~~such~~ that party, unless for good cause shown the ~~commissioner~~ commission or chief administrative law judge extends ~~such~~ the time, ~~such~~ the party's objections ~~thereto~~ to the findings and conclusions of the board in writing, specifying the particular statements of the board's findings and conclusions to which such party objects. The filing of an objection within the time specified is ~~hereby declared to be~~ a condition of the right to litigate ~~such~~ the findings and ~~hence~~ therefor jurisdictional. After the time has expired for the filing of objections to the findings and conclusions of the board, the ~~commissioner~~ commission or administrative law judge shall proceed to act as provided in this chapter. If after the time has expired for the filing of objections to the findings and conclusions of the board no objections have been filed, the report of a majority of the board of its findings and conclusions on any medical question shall be taken to be plenary and conclusive evidence of the findings and conclusions ~~therein~~ stated in the report. If objection has been filed to the findings and conclusions of the board, notice ~~thereof~~ of the objection shall be given to the board, and the members ~~thereof~~ of the board joining in ~~such~~ the findings and conclusions shall appear at the time fixed by the ~~commissioner~~ commission or office of judges for the hearing to submit to examination and cross-examination in respect to ~~such~~ the findings and conclusions. At ~~such~~ the hearing, evidence to support or controvert the findings and conclusions of the board shall be limited to examination and cross-examination of the members of the board and to the taking of testimony of other qualified physicians and roentgenologists.
          (e) In the event that a claimant receives a final decision that he or she has no evidence of occupational pneumoconiosis, ~~then such~~ the claimant is barred for a period of three years from the date of the occupational pneumoconiosis board's decision or until his or her employment with the employer who employed the claimant at the time designated as the claimant's last date of exposure in the denied claim has terminated, whichever is sooner, from filing a new claim or pursuing a previously filed, but unruled upon, claim for occupational pneumoconiosis or requesting a modification of any prior ruling finding him or her not to be suffering from occupational pneumoconiosis. For the purposes of this subsection, a claimant's employment shall be ~~deemed~~ considered to be terminated if, for any reason, he or she has not worked for that employer for a period in excess of ninety days. Any previously filed, but unruled upon, claim shall be consolidated with the claim in which the board's decision is made and shall be denied together with the decided claim. The provisions of this subsection shall not be applied in any claim where doing so would, in and of itself, later cause a claimant's claim to be forever barred by the provisions of section fifteen of this article.
§23-4-9. Physical and vocational rehabilitation.
          (a) The Legislature hereby finds that it is a goal of the workers' compensation program to assist ~~workers~~ employees to return to suitable gainful employment after an injury. In order to encourage workers to return to employment and to encourage and assist employers in providing suitable employment to injured employees, it ~~shall be~~ is a priority of the ~~commissioner~~ commission to achieve early identification of individuals likely to need rehabilitation services and to assess the rehabilitation needs of these injured employees. It ~~shall be~~ is the goal of rehabilitation to return injured ~~workers~~ employees to employment which ~~shall be~~ is comparable in work and pay to that which the individual performed prior to the injury. If a return to comparable work is not possible, the goal of rehabilitation ~~shall be~~ is to return the individual to alternative suitable employment, using all possible alternatives of job modification, restructuring, reassignment and training, so that the individual will return to productivity with his or her employer or, if necessary, with another employer. The Legislature further finds that it is the shared responsibility of the employer, the employee, the physician and the ~~commissioner~~ commission to cooperate in the development of a rehabilitation process designed to promote reemployment for the injured employee.
          (b) In cases where an employee has sustained a permanent disability, or has sustained an injury likely to result in temporary disability ~~in excess of one hundred twenty days, and such fact has been~~ as determined by the ~~commissioner~~ commission, the ~~commissioner~~ commission shall at the earliest possible time determine whether the employee would be assisted in returning to remunerative employment with the provision of rehabilitation services and if the ~~commissioner~~ commission determines that the employee can be physically and vocationally rehabilitated and returned to remunerative employment by the provision of rehabilitation services including, but not limited to, vocational or on-the-job training, counseling, assistance in obtaining appropriate temporary or permanent work site, work duties or work hours modification, by the provision of crutches, artificial limbs or other approved mechanical appliances, or medicines, medical, surgical, dental or hospital treatment or other services which the commission in its sole discretion determines will directly assist the employee's return to employment, the ~~commissioner~~ commission shall ~~forthwith~~ immediately develop a rehabilitation plan for the employee and, after due notice to the employer, expend ~~such~~ an amount ~~as may be~~ necessary for ~~the aforesaid~~ that purposes: Provided, That ~~such~~ the expenditure for vocational rehabilitation shall not exceed ~~ten~~ twenty thousand dollars for any one injured employee: Provided, however, That no payment shall be made for such vocational rehabilitation purposes as provided in this section unless authorized by the ~~commissioner~~ commission prior to the rendering of ~~such~~ the physical or vocational rehabilitation, except that payments shall be made for reasonable medical expenses without prior authorization if sufficient evidence exists which would relate the treatment to the injury and the attending physician or physicians have requested authorization prior to the rendering of ~~such~~ the treatment: Provided further, That payment for physical rehabilitation, including the purchase of prosthetic devices and other equipment and training in use of ~~such~~ the devices and equipment, ~~shall be~~ are considered expenses within the meaning of section three of this article and ~~shall be~~ are subject to the provisions of said section and section three-a, three-b and three-c of this article. The provision of any rehabilitation services shall be pursuant to a rehabilitation plan to be developed and monitored by a rehabilitation professional for each injured employee.
          (c) In every case in which the ~~commissioner shall order~~ commission orders physical or vocational rehabilitation of a claimant as provided ~~herein~~ in this section, the claimant shall, during the time he or she is receiving any vocational rehabilitation or rehabilitative treatment that renders him or her totally disabled during the period ~~thereof~~ of rehabilitation, be compensated on a temporary total disability basis for ~~such~~ that period.
          (d) In every case in which the claimant returns to gainful employment as part of a rehabilitation plan, and the employee's average weekly wage earnings are less than the average weekly wage earnings earned by the injured employee at the time of the injury, he or she shall receive temporary partial rehabilitation benefits calculated as follows: The temporary partial rehabilitation benefit shall be seventy percent of the difference between the average weekly wage earnings earned at the time of the injury and the average weekly wage earnings earned at the new employment, both to be calculated as provided in sections six, six-d and fourteen of this article as ~~such~~ the calculation is performed for temporary total disability benefits, subject to the following limitations: In no event ~~shall such~~ are the benefits be subject to the minimum benefit amounts required by the provisions of subdivision (b), section six of this article, nor ~~shall such~~ may the benefits exceed the temporary total disability benefits to which the injured employee would be entitled pursuant to sections six, six-d and fourteen of this article during any period of temporary total disability resulting from the injury in the claim: Provided, That no temporary total disability benefits shall be paid for any period for which temporary partial rehabilitation benefits are paid. The amount of temporary partial rehabilitation benefits payable under this subsection shall be reviewed every ninety days to determine whether the injured employee's average weekly wage in the new employment has changed and, if ~~such~~ the change has occurred, the amount of benefits payable ~~hereunder~~ under this subsection shall be adjusted prospectively. Temporary partial rehabilitation benefits shall only be payable when the injured employee is receiving vocational rehabilitation services in accordance with a rehabilitation plan developed under this section.
          (e) The ~~commissioner~~ executive director, in conjunction with the management council, shall promulgate rules for the purpose of developing a comprehensive rehabilitation program which will assist injured workers to return to suitable gainful employment after an injury in a manner consistent with the provisions and findings of this section. ~~Such~~ The rules shall provide definitions for rehabilitation facilities and rehabilitation services pursuant to this section.
          (f) The reenactment of the provisions of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-nine is for the purpose of reestablishing the rehabilitation program heretofore created by virtue of the provisions of this section and the rules promulgated pursuant thereto for all injured employees who sustained injuries on or after the first day of July, one thousand nine hundred ninety-eight. To this end, the performance council is directed to reenact the rules promulgated under the prior enactment of this section within fifteen days of the effective date hereof and the commissioner shall promulgate any revisions to the rules for review by the performance council on or before the first day of July, one thousand nine hundred ninety- nine.

§23-4-9b. Preexisting impairments not considered in fixing amount of compensation.

          Where an employee has a definitely ascertainable impairment resulting from an occupational or a nonoccupational injury, disease or any other cause, whether or not disabling, and ~~such~~ the employee ~~shall~~ thereafter ~~receive~~ receives an injury in the course of and resulting from his or her employment, unless ~~such~~ the subsequent injury results in total permanent disability within the meaning of section one, article three of this chapter, ~~such impairment~~ the prior injury, and the effect ~~thereof~~ of the prior injury, and an aggravation ~~thereof~~, shall not be taken into consideration in fixing the amount of compensation allowed by reason of ~~such~~ the subsequent injury~~, and such compensation~~. Compensation shall be awarded only in the amount that would have been allowable had ~~such~~ the employee not had ~~such~~ the preexisting impairment. Nothing in this section ~~shall be construed to require~~ requires that the degree of ~~such~~ the preexisting impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from ~~such~~ the employee's employment or that benefits must have been granted or paid for ~~such~~ the preexisting impairment. The degree of ~~such~~ the preexisting impairment may be established at any time by competent medical or other evidence. Notwithstanding the foregoing provisions of this section, if ~~such~~ the definitely ascertainable preexisting impairment resulted from an injury or disease previously held compensable and ~~such~~ the impairment had not been rated, benefits for ~~such~~ the impairment shall be payable to the claimant by or charged to the employer in whose employ the injury or disease occurred. The employee shall also receive ~~from the second injury reserve created by section one, article three of this chapter~~ the difference, if any, in the benefit rate applicable in the more recent claim and the prior claim.
§23-4-10. Classification of death benefits; "dependent" defined.
          In case a personal injury, other than occupational pneumoconiosis or other occupational disease, suffered by an employee in the course of and resulting from his or her employment, causes death, and disability is continuous from the date of ~~such~~ the injury until the date of death, or if death results from occupational pneumoconiosis or from any other occupational disease, the benefits shall be in the amounts and to the persons as follows:
          (a) If there be are no dependents, the disbursements shall be limited to the expense provided for in sections three and four of this article;
          (b) If there be are dependents as defined in subdivision (d) of this section, ~~such~~ the dependents shall be paid for as long as their dependency ~~shall continue~~ continues in the same amount as that was paid or would have been paid the deceased employee for total disability had he or she lived. The order of preference of payment and length of dependence shall be as follows:
          (1) A dependent widow or widower until death or remarriage of ~~such~~ the widow or widower, and any child or children dependent upon the decedent until each ~~such~~ child ~~shall reach~~ reaches eighteen years of age or where ~~such~~ the child after reaching eighteen years of age continues as a full- time student in an accredited high school, college, university, business or trade school, until ~~such~~ the child reaches the age of twenty-five years, or if an invalid child, to continue as long as ~~such~~ the child remains an invalid. All ~~such~~ persons ~~shall be~~ are jointly entitled to the amount of benefits payable as a result of employee's death;
          (2) A wholly dependent father or mother until death; and
          (3) Any other wholly dependent person for a period of six years after the death of the deceased employee;
          (c) If the deceased employee leaves no wholly dependent person, but there are partially dependent persons at the time of death, the payment shall be fifty dollars a month to continue for ~~such~~ the portion of the period of six years after the death, as determined by the ~~division may determine~~ commission, but no ~~such~~ partially dependent person shall receive compensation payments as a result of the death of more than one employee.
          Compensation under subdivisions (b) and (c) ~~hereof~~ of this subsection shall, except as may be specifically provided to the contrary ~~therein~~ in those subsections, cease upon the death of the dependent, and the right ~~thereto~~ to the compensation shall not vest in his or her estate.
          (d) "Dependent", as used in this chapter, ~~shall mean~~ means a widow, widower, child under eighteen years of age, or under twenty-five years of age when a full-time student as provided ~~herein~~ in this section, invalid child or posthumous child, who, at the time of the injury causing death, is dependent, in whole or part, for his or her support upon the earnings of the employee, stepchild under eighteen years of age, or under twenty-five years of age when a full-time student as provided ~~herein~~ in this section, child under eighteen years of age legally adopted prior to the injury causing death, or under twenty-five years of age when a full-time student as provided ~~herein~~ in this section, father, mother, grandfather or grandmother, who, at the time of the injury causing death, is dependent, in whole or in part, for his or her support upon the earnings of the employee; and invalid brother or sister wholly dependent for his or her support upon the earnings of the employee at the time of the injury causing death; and
          (e) If a person receiving permanent total disability benefits dies from a cause other than a disabling injury leaving any dependents as defined in subdivision (d) of this section, an award shall be made to ~~such~~ the dependents in an amount equal to one hundred four times the weekly benefit the worker was receiving at the time of his or her death and be paid either as a lump sum or in periodic payments, at the option of the dependent or dependents. Direct premium rating experience charges for the payment of such benefits granted as a result of a second injury award of permanent total disability shall not be made to the employee's employer. It is the intent of the Legislature that the amendments to this subsection enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-nine be construed so as to make dependents eligible for benefits under this subsection retroactive to the second day of February, one thousand nine hundred ninety- five.
§23-4-11. To whom death benefits paid.
          The benefits, in case of death, shall be paid to ~~such~~ one or more dependents of the decedent, or to ~~such~~ any other persons, for the benefit of all of the dependents, as may be determined by the ~~commissioner~~ commission, who may apportion the benefits among the dependents in ~~such~~ the manner as ~~he may deem~~ they consider just and equitable. Payment to a dependent subsequent in right may be made if the ~~commissioner deems~~ commission considers proper and ~~shall operate~~ it operates to discharge all other claims ~~therefor~~ for the benefits.
§23-4-12. Application of benefits.
          The dependent or person to whom benefits are paid shall apply the ~~same~~ benefits to the use of the several beneficiaries ~~thereof~~ of the benefits according to their respective claims upon the decedent for support, in compliance with the finding and direction of the ~~commissioner~~ commission.
§23-4-14. Computation of benefits.
          (a) The average weekly wage earnings, wherever earned, of the injured person at the date of injury, and the average weekly wage in West Virginia as determined by the ~~commissioner~~ commission, in effect at the date of injury, shall be taken as the basis upon which to compute the benefits.
          (1) In cases involving occupational pneumoconiosis or other occupational diseases, the "date of injury" ~~shall be~~ is the date of the last exposure to the hazards of occupational pneumoconiosis or other occupational diseases.
          (2) In computing benefits payable on account of occupational pneumoconiosis, the ~~commissioner~~ commission shall deduct the amount of all prior workers' compensation benefits paid to the same claimant on account of silicosis, but a prior silicosis award shall not, in any event, preclude an award for occupational pneumoconiosis otherwise payable under this article.
          (b) (1) Until the first day of July, one thousand nine hundred ninety-four, the expression "average weekly wage earnings, wherever earned, of the injured person, at the date of injury", within the meaning of this chapter, shall be computed based upon the daily rate of pay at the time of the injury or upon the average pay received during the two months, six months or twelve months immediately preceding the date of the injury, whichever is most favorable to the injured employee, except for the purpose of computing temporary total disability benefits for part-time employees pursuant to the provisions of section six-d of this article.
          (2) On and after the first day of July, one thousand nine hundred ninety-four, the expression "average weekly wage earnings, wherever earned, of the injured person, at the date of injury", within the meaning of this chapter, shall be computed based upon the daily rate of pay at the time of the injury or upon the weekly average derived from the best quarter of wages out of the preceding four quarters of wages as reported to the ~~commissioner~~ commission pursuant to ~~section eleven, article ten, chapter twenty-one-a of this code~~ subsection (b), section two, article two of this chapter, whichever is most favorable to the injured employee, except for the purpose of computing temporary total disability benefits for part-time employees pursuant to the provisions of section six-d of this article.
          (c) The expression "average weekly wage in West Virginia", within the meaning of this chapter, ~~shall be~~ is the average weekly wage in West Virginia as determined by the commissioner of the bureau of employment programs in accordance with the provisions of sections ten and eleven, article six, chapter twenty-one-a of this code and other applicable provisions of said chapter.
          (d) In any claim for injuries, including occupational pneumoconiosis and other occupational diseases, occurring on or after the first day of July, one thousand nine hundred seventy-one, any award for temporary total, permanent partial or permanent total disability benefits or for dependent benefits shall be paid at the weekly rates or in the monthly amount in the case of dependent benefits applicable to the claimant ~~therein~~ in effect on the date of ~~such~~ the injury. If during the life of ~~such~~ the award for temporary total, permanent partial or permanent total disability benefits or for dependent benefits the weekly rates or the monthly amount in the case of dependent benefits, are increased or decreased, the claimant shall receive ~~such~~ the increased or decreased benefits beginning as of the effective date of ~~said~~ the increase or decrease.
§23-4-15. Application for benefits.
          (a) To entitle any employee or dependent of a deceased employee to compensation under this chapter, other than for occupational pneumoconiosis or other occupational disease, the application ~~therefor must~~ for compensation shall be made on the form or forms prescribed by the ~~division~~ commission and filed with the ~~division~~ commission within six months from and after the injury or death, as the case may be, and unless so filed within ~~such~~ the six-month period, the right to compensation under this chapter ~~shall be~~ is forever barred, such time limitation being hereby declared to be a condition of the right and hence jurisdictional, and all proofs of dependency in fatal cases must ~~likewise~~ also be filed with the ~~division~~ commission within six months from and after the death. In case the employee is mentally or physically incapable of filing ~~such~~ the application, it may be filed by his or her attorney or by a member of his or her family.
          (b) To entitle any employee to compensation for occupational pneumoconiosis under the provisions ~~hereof~~ of this subsection, the application ~~therefor must~~ for compensation shall be made on the form or forms prescribed by the ~~division~~ commission and filed with the ~~division~~ commission within three years from and after the last day of the last continuous period of sixty days or more during which the employee was exposed to the hazards of occupational pneumoconiosis or within three years from and after ~~the employee's~~ a diagnosed impairment due to occupational pneumoconiosis was made known to ~~him or her~~ the employee by a physician ~~or which he or she should reasonably have known, whichever shall last occur~~, and unless so filed within ~~such~~ the three- year period, the right to compensation under this chapter ~~shall be~~ is forever barred, such time limitation being hereby declared to be a condition of the right and hence jurisdictional, or, in the case of death, the application shall be filed ~~as aforesaid~~ by the dependent of ~~such~~ the employee within one year from and after ~~such~~ the employee's death, and such time limitation is a condition of the right and hence jurisdictional.
          (c) To entitle any employee to compensation for occupational disease other than occupational pneumoconiosis under the provisions ~~hereof~~ of this section, the application ~~therefor must~~ for compensation shall be made on the form or forms prescribed by the ~~division~~ commission and filed with the ~~division~~ commission within three years from and after the day on which the employee was last exposed to the particular occupational hazard involved or within three years from and after the employee's occupational disease was made known to him or her by a physician or which he or she should reasonably have known, whichever ~~shall~~ last ~~occur~~ occurs, and unless so filed within ~~such~~ the three-year period, the right to compensation under this chapter shall be forever barred, such time limitation being hereby declared to be a condition of the right and ~~hence~~ therefor jurisdictional, or, in case of death, the application shall be filed as aforesaid by the dependent of ~~such~~ the employee within one year from and after ~~such~~ the employee's death, and such time limitation is a condition of the right and hence jurisdictional.
§23-4-15a. Nonresident alien beneficiaries.
          Notwithstanding any other provisions of this chapter, nonresident alien beneficiaries ~~shall be~~ are entitled to the same benefits as citizens of the United States: Provided, ~~however~~, That the ~~commissioner~~ commission in ~~his~~ its discretion may make, and ~~such~~ the beneficiary shall ~~be required to~~ accept, commutation of ~~such~~ the benefits into a lump sum settlement and payment. Nonresident alien beneficiaries within the meaning ~~hereof shall mean~~ of this section means persons not citizens of the United States residing outside of the territorial limits of the United States at the time of the injury with respect to which benefits are awarded.

§23-4-15b. Determination of nonmedical questions by commission; claims for occupational pneumoconiosis; hearing.

If a claim for occupational pneumoconiosis benefits be is filed by an employee within three years from and after the last day of the last continuous period of sixty days' exposure to the hazards of occupational pneumoconiosis, the ~~division~~ commission shall determine whether the claimant was exposed to the hazards of occupational pneumoconiosis for a continuous period of not less than sixty days while in the employ of the employer within three years prior to the filing of his or her claim, whether in the state of West Virginia the claimant was exposed to such hazard over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure ~~thereto~~ to the hazard and whether the claimant was exposed to ~~such~~ the hazard over a period of not less than ten years during the fifteen years immediately preceding the date of his or her last exposure ~~thereto~~ to the hazard. If a claim for occupational pneumoconiosis benefits be is filed by an employee within three years from and after the employee's occupational pneumoconiosis was made known to the employee by a physician ~~or otherwise should have reasonably been known to the employee~~, the ~~division~~ commission shall determine whether the claimant filed his or her application within ~~said~~ that period and whether in the state of West Virginia the claimant was exposed to ~~such~~ the hazard over a continuous period of not less than two years during the ten years immediately preceding the date of last exposure ~~thereto~~ to the hazard and whether the claimant was exposed to ~~such~~ the hazard over a period of not less than ten years during the fifteen years immediately preceding the date of last exposure thereto. If a claim for occupational pneumoconiosis benefits be is filed by a dependent of a deceased employee, the ~~division~~ commission shall determine whether the deceased employee was exposed to the hazards of occupational pneumoconiosis for a continuous period of not less than sixty days while in the employ of the employer within ten years prior to the filing of the claim, whether in the state of West Virginia the deceased employee was exposed to ~~such~~ the hazard over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure ~~thereto~~ to the hazard and whether the claimant was exposed to ~~such~~ the hazard over a period of not less than ten years during the fifteen years immediately preceding the date of his or her last exposure ~~thereto~~ to the hazard. The ~~division~~ commission shall also determine ~~such~~ other nonmedical facts ~~as may~~ that, in the ~~division's~~ commission's opinion, be are pertinent to a decision on the validity of the claim.
The ~~division~~ commission shall enter an order with respect to ~~such~~ nonmedical findings within ninety days following receipt by the ~~division~~ commission of both the claimant's application for occupational pneumoconiosis benefits and the physician's report filed in connection ~~therewith~~ with the claimants application and shall give each interested party notice in writing of these findings with respect to all ~~such~~ the nonmedical facts. ~~and such~~ The findings and ~~such~~ actions of the ~~division~~ commission ~~shall be~~ are final unless the employer, employee, claimant or dependent ~~shall~~, within thirty days after receipt of ~~such~~ the notice, ~~object to such~~ objects to the findings, and unless an objection is filed within ~~such~~ the thirty-day period, ~~such~~ the findings ~~shall be~~ are forever final, ~~such~~ the time limitation ~~being hereby declared to be~~ is a condition of the right to litigate ~~such~~ the findings and ~~hence~~ therefor jurisdictional. Upon receipt of ~~such~~ an objection, the chief administrative law judge shall set a hearing as provided in section nine, article five of this chapter. In the event of an objection to ~~such~~ the findings by the employer, the claim shall, notwithstanding the fact that one or more hearings may be held with respect to ~~such~~ the objection, mature for reference to the occupational pneumoconiosis board with like effect as if the objection had not been filed. If the administrative law judge concludes after the protest hearings that the claim should be dismissed, a final order of dismissal shall be entered. ~~, which~~ The final order ~~shall be~~ is subject to appeal in accordance with the provisions of sections ten and twelve, article five of this chapter. If the administrative law judge concludes after ~~such~~ the protest hearings that the claim should be referred to the occupational pneumoconiosis board for its review, the order entered shall be interlocutory only and may be appealed only in conjunction with an appeal from a final order with respect to the findings of the occupational pneumoconiosis board.

§23-4-16. Commission's jurisdiction over case continuous; modification of finding or order; time limitation on awards; reimbursement of claimant for expenses; reopening cases involving permanent total disability; promulgation of rules.

          (a) The power and jurisdiction of the ~~division~~ commission over each case ~~shall be~~ is continuing and the ~~division~~ commission may, in accordance with the ~~following~~ provisions of this section and after due notice to the employer, make ~~such~~ modifications or changes with respect to former findings or orders ~~as may be~~ that are justified. Upon and after the second day of February, one thousand nine hundred ninety-five, the period in which a claimant may request a modification, change or reopening of a prior award that was entered either prior to or after ~~such~~ that date shall be determined by the following ~~paragraphs~~ subdivisions of this subsection. Any ~~such~~ request that is made beyond ~~such~~ that period shall be refused.
          (1) Except as provided in section twenty-two of this article, in any claim which was closed without the entry of an order regarding the degree, if any, of permanent disability that a claimant has suffered, or in any case in which no award has been made, any ~~such~~ request must be made within five years of the closure. During that time period, only two ~~such~~ requests may be filed.
          (2) Except as stated below, in any claim in which an award of permanent disability was made, any ~~such~~ request must be made within five years of the date of the initial award. During that time period, only two ~~such~~ requests may be filed. With regard to those occupational diseases, including occupational pneumoconiosis, which are medically recognized as progressive in nature, if any such request is granted by the ~~division~~ commission, ~~then~~ a new five-year period ~~shall begin~~ begins upon the date of the subsequent award. With the advice of the health care advisory panel, the ~~commissioner and the compensation programs performance council~~ executive director and the management council shall by rule designate those progressive diseases which are customarily the subject of claims.
          (3) No further award may be made in fatal cases except within two years after the death of the employee.
          (4) With the exception of the items set forth in subsection (d), section three of this article, in any claim ~~wherein~~ in which medical or any type of rehabilitation service has not been rendered or durable medical goods or other supplies have not been received for a period of five years, ~~then~~ no request for additional medical or any type of rehabilitation benefits shall be granted nor shall any ~~such~~ medical or any type of rehabilitation benefits or any type of goods or supplies be paid for by the ~~division~~ commission if ~~such~~ they were provided without a prior request. For the exclusive purposes of this ~~paragraph~~ subdivision, medical services and rehabilitation services shall not include any encounter in which significant treatment was not performed.
          (b) In any claim in which an injured employee ~~shall make~~ makes application for a further period of temporary total disability, if ~~such~~ the application be is in writing and filed within the applicable time limit stated above, ~~then~~ the ~~division~~ commission shall pass upon the request within thirty days of the receipt of the request. If the decision is to grant the request, ~~then~~ the order shall provide for the receipt of temporary total disability benefits. In any case in which an injured employee ~~shall make~~ makes application for a further award of permanent partial disability benefits or for an award of permanent total disability benefits, if ~~such~~ the application be is in writing and filed within the applicable time limit as stated above, the ~~division~~ commission shall pass upon the request within thirty days of its receipt and, if the ~~division~~ commission determines that the claimant may be entitled to an award, the ~~division will then~~ commission shall refer the claimant for ~~such~~ further examinations ~~as may be~~ that are necessary.
          (c) If ~~such~~ the application is based on a report of any medical examination made of the claimant and submitted by the claimant to the ~~division~~ commission in support of his or her application, and the claim is opened for further consideration and additional award is later made, the claimant shall be reimbursed for the expenses of ~~such~~ the examination. ~~Such~~ The reimbursement shall be made by the ~~division~~ commission to the claimant, in addition to all other benefits awarded, upon due proof of the amount thereof being furnished the ~~division~~ commission by the claimant, but shall in no case exceed the sum fixed pursuant to the ~~division's~~ commission's schedule of maximum reasonable fees established under the provisions of section three of this article.
          (d) The ~~division shall have~~ commission has continuing power and jurisdiction over claims in which permanent total disability awards have been made after the eighth day of April, one thousand nine hundred ninety-three.
          (1) The ~~division~~ commission shall continuously monitor permanent total disability awards and may, from time to time, after due notice to the claimant, reopen a claim for reevaluation of the continuing nature of the disability and possible modification of the award: ~~Provided, That such~~ ~~the~~ ~~reopenings shall not be done sooner than every two years:~~ ~~Provided, however, That any individual claimant shall only be reevaluated a total of two times after which he or she may not be again reevaluated under the provisions of this subsection~~. The ~~division~~ commission may reopen a claim for reevaluation when, in the ~~division's~~ commission's sole discretion, it concludes that there exists good cause to believe that the claimant no longer meets the eligibility requirements under subdivision (n), section six of this article. The eligibility requirements, including any vocational standards, shall be applied as those requirements are stated at the time of a claim's reopening: ~~Provided further~~, That if a permanent total disability award was made on or after the eighth day of April, one thousand nine hundred ninety-three, and on or before the second day of February, one thousand nine hundred ninety-five, the eligibility requirements for the claimant upon a reopening shall be ~~are~~ ~~the eligibility requirements which applied to his or her claim at the time the award was made. This section shall not be~~ ~~is not~~ ~~applicable to any claim in which the final decision on the eligibility of the claimant to a permanent total disability award was made more than ten years prior to the date of proposed reevaluation~~.
          (2) Upon reopening a claim under this subsection, the ~~division~~ commission may take evidence, have the claimant evaluated, make findings of fact and conclusions of law and shall vacate, modify or affirm the original permanent total disability award as the record requires. The claimant's former employer shall not be a party to the reevaluation, but shall be notified of the reevaluation and may submit ~~such~~ any information to the ~~division~~ commission as the employer may elect. In the event the claimant retains his or her award following the reevaluation, ~~then~~ the claimant's reasonable attorneys' fees incurred in defending the award shall be paid by the workers' compensation ~~division~~ commission from the ~~supersedeas reserve of the surplus~~ workers' compensation fund. In addition, the workers' compensation ~~division~~ commission shall reimburse a prevailing claimant for his or her costs in obtaining one evaluation on each issue during the course of the reevaluation with ~~such~~ the reimbursement being made from the ~~supersedeas reserve of the surplus~~ fund. The ~~compensation programs performance council~~ management council shall adopt criteria for the determination of reasonable attorneys' fees.
          (3) This subsection shall not be applied to awards made under the provisions of subdivision (m), section six of this article. The claimant may seek review of the ~~division's~~ commission's final order as otherwise provided for in article five of this chapter for review of orders granting or denying permanent disability awards.
          (4) The commission shall establish by rule criteria for review, reopening and reevaluating a claim under this subsection. The commission shall at least quarterly provide a report of the exercise of its authority to continuously monitor permanent total disability awards under this section to the joint committee on government and finance and the joint commission on economic development.
          (e) A claimant may have only one active request for a permanent disability award pending in a claim at any one time. Any new ~~such~~ request that is made while another is pending shall be consolidated into the former request.
§23-4-16a. Interest on benefits.
          Whenever any award of temporary total, permanent partial or permanent total disability benefits or dependent benefits is made on or after ~~July one~~ the first day of July, one thousand nine hundred seventy-one, and a protest is filed ~~thereto~~ to the award or an appeal is taken ~~therefrom~~ from the award by an employer only and not by the claimant or dependent and the award is not ultimately denied or reduced following ~~such~~ the protest or appeal, the ~~commissioner~~ commission shall add ~~thereto~~ interest to the award at the simple rate of six percent per annum from the date the award would have been payable had ~~such~~ the protest or appeal not been filed or taken, exclusive of any period for which a continuance was granted upon motion of any party other than the protesting or appealing employer. Any interest payable shall be charged to the account of the protesting or appealing employer to the extent that the benefits upon which such interest is computed are charged to the account of ~~such~~ the employer.
§23-4-17. Commutation of periodical benefits.
          The ~~commissioner~~ commission, under special circumstances and when ~~the same~~ it is ~~deemed~~ considered advisable, may commute periodical benefits to one or more lump-sum payments. Upon the application of any claimant who has received an award of partial or total disability, who is not a citizen of the United States and desires to reside permanently beyond the territorial limits of the United States, or upon the application of an alien dependent of a deceased employee with respect of whose death award of compensation has been made, ~~such~~ the dependent residing in the territorial limits of the United States at the time of the decedent's death, and desiring to reside permanently beyond ~~such~~ the territorial limits of the United States, the ~~commissioner~~ commission may commute into one lump-sum payment the periodical payments to which ~~such~~ the claimant or dependent would be entitled, but at the rate of one half the amount that would be payable to a citizen of the United States under like circumstances.~~, and such~~ The lump-sum payment at the rate ~~aforesaid shall discharge~~ specified in this section discharges all liability with respect ~~of said~~ to the award, but in no event shall ~~such~~ the award be paid until ~~such~~ the claimant or dependent ~~shall have~~ has actually arrived and domiciled himself or herself outside the territorial limits of the United States, except a sufficient portion of ~~said~~ the award to pay transportation and other necessary expenses.

§23-4-18. Mode of paying benefits generally; exemptions of compensation from legal process.

          Except as provided by this section, compensation shall be paid only to ~~such~~ the employees or their dependents and ~~shall be~~ is exempt from all claims of creditors and from any attachment, execution or assignment other than compensation to counsel for legal services, under the provisions of, and subject to the limitations contained in section sixteen, article five of this chapter, and other than for the enforcement of orders for child or spousal support entered pursuant to the provisions of chapter forty-eight of this code. Payments may be made in ~~such~~ the periodic installments as determined by the ~~division~~ commission in each case, but in no event less frequently than semimonthly for any temporary award and monthly for any permanent award. Payments for permanent disability shall be paid on or before the third day of the month in which they are due. In all cases where compensation is awarded or increased, the amount ~~thereof~~ of compensation shall be calculated and paid from the date of disability.
§23-4-20. Postmortem examinations.
          The ~~commissioner shall have authority~~ commission may, after due notice to the employer and claimant, whenever ~~he shall deem~~ it considers it necessary, to order an autopsy and may designate a duly licensed physician to make ~~such~~ the postmortem examination or examinations ~~as may be~~ that are necessary to determine the cause of the deceased employee's death.~~, and such~~ The physician shall file with the ~~commissioner~~ commission a written report of his or her findings.~~; the~~ The claimant and the employer, respectively, ~~shall~~ have the right to select a physician of his, her or its own choosing and, at his, her or its own expense, to participate in the postmortem examination.~~, and the~~ The respective physicians selected by the claimant and the employer ~~shall~~ have the right to concur in any report made by the physician selected by the ~~commissioner~~ commission, or each may file with the ~~commissioner~~ commission a separate report. In any case, including silicosis cases, in which either the employer or a claimant requests that an autopsy be performed, ~~then such~~ the autopsy shall be directed as ~~hereinbefore~~ provided in this section.~~, and in~~ In the event that a claimant for compensation for ~~such~~ the death refuses to consent and permit ~~such~~ the autopsy to be made all rights to compensation shall be forfeited.
§23-4-22. Permanent disability evaluations; limitations; notice.
          Notwithstanding any provision in this chapter to the contrary, any claim which was closed for the receipt of temporary total disability benefits or which was closed on a no-lost-time basis and which ~~closure~~ was more than five years prior to the effective date of this section shall not be considered to still be open or the subject for an evaluation of the claimant for permanent disability merely because ~~such~~ an evaluation has not ~~heretofore~~ previously been conducted and a decision on permanent disability has not been made: Provided, That if a request for an evaluation was made in ~~such~~ a claim prior to the twenty-ninth day of March, one thousand nine hundred ninety-three, the ~~commissioner~~ commission shall have ~~such~~ the evaluation performed. In every ~~such~~ instance, ~~such~~ a claim shall be a case in which no award has been made for the purposes of section sixteen of this article. In every claim closed after the effective date of this section, the ~~commissioner~~ commission shall give notice to the parties of the claimant's right to a permanent disability evaluation.

§23-4-23. Permanent total disability benefits; reduction of disability benefits; reduction of benefits; application of section; severability.

          (a) This section is applicable whenever benefits are being paid for permanent total disability benefits arising under subdivision (d), (m) or (n), section six of this article or under section eight-c of this article. This section is not applicable to the receipt of temporary total disability benefits, the receipt of permanent partial disability benefits, the receipt of benefits by partially or wholly dependent persons or to the receipt of benefits pursuant to the provisions of subsection (e), section ten of this article. This section is not applicable to the receipt of medical benefits or the payment ~~therefor~~ for medical benefits.
          (b) Whenever applicable benefits are paid to a beneficiary with respect to the same time period for which ~~old-age insurance benefit payments under the Social Security Act, 42 U. S. C. 401 and 402, or~~ payments under a self-insurance plan, a wage continuation plan or a disability insurance policy provided by an employer are also received or being received by the beneficiary, ~~then such~~ the applicable benefits shall be reduced by these amounts:
          ~~(1) Fifty percent of the amount of full old-age insurance benefits received or being received under the Social Security Act:~~ ~~Provided~~, That if the claimant is receiving reduced old-age retirement benefits, then ten percent of the amount of old-age social security insurance benefits, had such benefits not been reduced, shall be deducted from the applicable benefits: ~~Provided, however~~, That social security disability benefits shall not be deducted from the applicable benefits when such disability benefits are later changed to old-age insurance benefits upon the claimant's attaining the age specified for such conversion by the social security administration;
          ~~(2)~~ (1) The after-tax amount of the payments received or being received under a self- insurance plan, a wage continuation plan or under a disability insurance policy provided by an employer if the employee did not contribute directly to the plan or to the payment of premiums regarding the disability insurance policy; or
          ~~(3)~~ (2) The proportional amount, based on the ratio of the employer's contributions to the total insurance premiums for the policy period involved, of the after-tax amount of the payments received or being received by the employee pursuant to a disability insurance policy provided by an employer if the employee did contribute directly to the payment of premiums regarding the disability insurance policy: Provided, That in no event shall applicable benefits be reduced below the minimum weekly benefits as provided for in subdivisions (b) and (d), section six of this article.
          (c) The commissioner shall notify a claimant or self-insured employer of possible eligibility for social security benefits and the requirements for establishing proof of application for those benefits. Notification shall be promptly mailed by the commissioner or self-insured employer to the claimant after the date on which by reason of age the claimant may be entitled to social security benefits. A self-insured employer shall file a copy of any such notice of possible eligibility with the commissioner within ten days of its mailing to the claimant.
          ~~(1) Within thirty days after the receipt of the notification of possible eligibility, the claimant shall:~~
          ~~(A) Make application for social security benefits;~~
          ~~(B) Provide the commissioner or a self-insured employer with proof of that application; and~~
          (C) Provide the commissioner or self-insured employer with an authorization for release of information which shall be utilized by the commissioner or self-insured employer to obtain necessary benefit entitlement and amount information from the social security administration. The authorization for release of information shall be effective for one year.
          (2) Failure of the claimant to provide the proof of application or authorization for release of information shall allow the commissioner or self-insured employer with the approval of the commissioner to discontinue the payment of applicable benefits until the proof of application and the authorization for release of information is provided. Compensation benefits withheld shall be reimbursed to the claimant upon the providing of the required proof of application or the authorization for release of information, or both.
          (d) If the commissioner or the self-insured employer is required to submit a new authorization for release of information to the social security administration in order to receive information necessary to comply with this section, the claimant shall provide the new authorization for release of information within thirty days of a request by the commissioner or self-insured employer. Failure of the claimant to provide the new authorization for release of information shall allow the commissioner or self-insured employer with the approval of the commissioner to discontinue the payment of applicable benefits until the authorization for release of information is provided. Compensation benefits withheld shall be reimbursed to the claimant upon the providing of the authorization for release of information.
          (e) Within thirty days after either the date of first payment of benefits or after the date of application for any benefit under subsection (b) of this section, whichever is later, the claimant shall provide the commissioner or self-insured employer with a properly executed authorization for release of information which shall be utilized by the commissioner or self-insured employer to obtain necessary benefit entitlement and amount information from the appropriate source. The authorization for release of information shall be effective for one year. Failure of the claimant to provide a properly executed authorization for release of information shall allow the commissioner or self-insured employer with the approval of the commissioner to discontinue the payment of applicable benefits until the authorization for release of information is provided. Compensation benefits withheld shall be reimbursed to the claimant upon the providing of the authorization for release of information. If the commissioner or the self-insured employer is required to submit a new authorization for release of information to the appropriate source in order to receive information necessary to comply with this section, the claimant shall provide the new authorization for release of information within thirty days of a request by the commissioner or self-insured employer. Failure of the claimant to provide the new authorization for release of information shall allow the commissioner or self-insured employer with the approval of the commissioner to discontinue the payment of applicable benefits until the authorization for release of information is provided. Compensation benefits withheld shall be reimbursed to the claimant upon the providing of the authorization for release of information.
          (f) Any benefit payments under the Social Security Act, or any fund, policy or program as specified under subsection (b) of this section which the claimant receives after the effective date of this section and during a period in which the claimant also receives unreduced workers' compensation benefits shall be considered to create an overpayment of benefits for that period. The commissioner or self-insured employer shall calculate the amount of the overpayment and send a notice of overpayment and a request for reimbursement to the claimant. Failure by the claimant to reimburse the commissioner or self-insured employer within thirty days after the mailing date of the notice of request for reimbursement shall allow the commissioner or the self-insured employer, with the approval of the commissioner, to discontinue fifty percent of future benefits payments. The benefit payments withheld shall be credited against the amount of the overpayment. Payment of the appropriate benefit shall resume when the total amount of the overpayment has been withheld. Any self-insured employer taking a credit or making a reduction as provided for in this subsection shall immediately report to the commissioner the amount of the credit or reduction and, as requested by the commissioner, furnish to the commissioner satisfactory proof of the basis for a credit or reduction.
          ~~(g) Nothing in this section shall be considered to compel a claimant to apply for early federal social security old-age benefits or to apply for other early or reduced benefits.~~
          ~~(h)~~ (c) This section applies to awards of permanent total disability made after the effective date of this section.
          ~~(i)~~ (d) The ~~commissioner and the compensation programs performance council~~ executive director shall promulgate the appropriate rules for the interpretation, processing and enforcement of this section.
          ~~(j)~~ (e) If any portion of this section or any application of this section is subsequently found to be unconstitutional or in violation of applicable law, it shall not affect the validity of the remainder of this section or ~~such~~ the applications of the section as that are not unconstitutional or in ~~such~~ violation.

§23-4-24. Permanent total disability awards; retirement age; limitations on eligibility and the introduction of evidence; effects of other types of awards; procedures; requests for awards; jurisdiction.

          (a) Notwithstanding any provision of this chapter to the contrary, except as stated below, no claimant shall be awarded permanent total disability benefits arising under subdivision (d) or (n), section six of this article or of section eight-c of this article who terminates active employment and is receiving full old-age retirement benefits under the Social Security Act, 42 U. S. C. 401 and 402. Any ~~such~~ claimant shall be evaluated only for the purposes of receiving a permanent partial disability award premised solely upon the claimant's impairments. This subsection ~~shall~~ is not be applicable in any claim in which the claimant has completed the submission of his or her evidence on the issue of permanent total disability prior to the later of the following: Termination of active employment or the initial receipt of full old-age retirement benefits under the Social Security Act. Once the claimant has terminated active employment and has begun to receive full old-age social security retirement benefits, the claimant ~~shall not be permitted to~~ may not produce additional evidence of permanent total disability before the ~~division~~ commission or the office of judges nor shall ~~such a~~ the claim be remanded for the production of ~~such~~ the evidence.
          (b) For the purposes of subdivisions (d) and (n), section six of this article, the award of permanent partial disability benefits under the provisions of section six-b of this article or under that portion of section six-a of this article which awards twenty weeks of benefits to a claimant who has occupational pneumoconiosis but without measurable pulmonary impairment therefrom shall not be counted towards the eighty-five percent needed to gain the rebuttable presumption of permanent total disability or towards the fifty percent threshold of paragraph (1), subdivision (n), section six of this article when such claimant has terminated active employment and is receiving federal nondisability pension or retirement benefits, including old-age benefits under the Social Security Act. This subsection shall not affect any other awards of permanent partial disability benefits and their use in achieving the rebuttable eighty-five percent presumption or the fifty percent threshold.
          ~~(c)~~ (b) The workers' compensation ~~division shall have~~ commission has the sole and exclusive jurisdiction to initially hear and decide any claim or request pertaining, in whole or in part, to subdivision (d) or (n), section six of this article. Any claim or request for permanent total disability benefits arising under ~~said~~ the subdivisions shall first be presented to the ~~division~~ commission as part of the initial claim filing or by way of an application for modification or adjustment pursuant to section sixteen of this article. The office of judges may consider ~~such~~ a claim only after the ~~division~~ commission has entered an appropriate order.

§23-4-25. Permanent total disability benefits; reduction of disability benefits for wages earned by claimant.

          (a) After the eighth day of April, one thousand nine hundred ninety-three, a reduction in the amount of benefits as specified in subsection (b) of this section shall be made whenever benefits are being paid for a permanent total disability award regardless of when ~~such~~ the benefits were awarded. This section is not applicable to the receipt of medical benefits or the payment ~~therefor~~ for medical benefits, the receipt of permanent partial disability benefits, the receipt of benefits by partially or wholly dependent persons, or to the receipt of benefits pursuant to the provisions of subsection (e), section ten of this article. Prior to the application of this section to any claimant, the ~~division~~ commission shall give the claimant notice of the effect of this section upon a claimant's award if and when ~~such~~ the claimant later earns wages.
          (b) Whenever applicable benefits are paid to a claimant with respect to the same time period in which the claimant has earned wages as a result of his or her employment, the following reduction in applicable benefits shall be made. The claimant's applicable monthly benefits and monthly net wages received from the current employment shall be added together. If ~~such~~ the total exceeds by more than one hundred twenty percent of the amount of the claimant's monthly net wages earned during his or her last employment prior to the award of permanent total disability benefits, ~~then such~~ the excess shall be reduced by one dollar for each two dollars that the claimant's monthly benefits and monthly net wages exceed the one hundred twenty percent level: Provided, That in no event shall applicable benefits be reduced below the minimum weekly benefits as provided for in subdivisions (b) and (d), section six of this article.
ARTICLE 4A. DISABLED WORKERS' RELIEF FUND.
§23-4A-1. Disabled workers' relief fund created.
          For the relief of persons who are receiving benefits pursuant to a permanent total disability award in amounts less than thirty-three and one-third percent of the average weekly wage for the state of West Virginia per month, and for the relief of widows who are receiving benefits on account of the death of an employee in amounts less than thirty-three and one-third percent of the average weekly wage in the state of West Virginia per month, and for the relief of children of employees deceased before one thousand nine hundred sixty-seven, who are under the age of twenty-three and who are full-time students, and for the relief of other persons who are receiving dependents' benefits on account of the death of an employee in amounts less than the specific monetary amounts set forth in section ten, article four of this chapter and in effect as of ~~July one~~ the first day of July, one thousand nine hundred seventy-three, there is ~~hereby created~~ continued a separate fund, ~~to be~~ heretofore known as the "Disabled Workmen's Relief Fund", and which shall hereafter be known as the "Disabled Workers' Relief Fund", which ~~fund~~ shall consist of ~~such~~ any sums as that are, from time to time, made available to carry out the objects and purposes of this article. ~~Said~~ The fund shall be in the custody of the state treasurer and disbursements ~~therefrom~~ from the fund shall be made upon requisition signed by the ~~commissioner~~ executive director to those persons entitled to participate ~~therein~~ in the fund and in such amounts to each participant ~~as is~~ that are provided in section three of this article.
§23-4A-3. Computation of benefits.
          Each individual entitled to participate in the disabled workers' relief fund ~~shall be~~ is entitled to receive payments without application (except that an application shall be required under section five of this article) from ~~said~~ the fund of an amount equal to the difference between the amounts set forth in section one of this article and the amount ~~said~~ the individual is in fact receiving by virtue of and under the laws of this state. The first ~~such~~ payment shall be made concurrently with the payment to him or her of workers' compensation on the first day of August, one thousand nine hundred seventy-six, and subsequent payments shall be made during the period thereafter in which ~~such~~ the participant ~~shall be~~ is entitled to workers' compensation benefits by virtue of and under the laws of this state.
§23-4A-5. Employers providing own system of compensation.
          The ~~commissioner~~ executive director shall promptly require of each employer who has elected to pay direct compensation ~~direct~~ under the provisions of section nine, article two of this chapter a verified list of the names and addresses of all persons to whom ~~such~~ the employer is paying workers' compensation on account of permanent total disability or because of the death of an employee and ~~such~~ any evidence respecting ~~such~~ those persons as the ~~commissioner~~ executive director may reasonably consider necessary to determine the eligibility of any ~~such~~ person to participate in the disabled workers' relief fund. Any person claiming the right to participate in ~~said~~ the fund under the provisions of this section may file his or her application ~~therefor~~ for participation with the ~~commissioner~~ executive director and shall be accorded a hearing ~~thereon~~ on the application.

§23-4A-6. Powers of commission over disabled workers' relief fund.

In the investigation and determination of the right of persons to participate in the disabled ~~workmen's~~ workers' relief fund, the ~~commissioner shall have~~ executive director has and may exercise all the powers which he or she possesses under the other articles of this chapter. His or her powers and jurisdiction over each case ~~shall be~~ is continuing, but there shall be no appeal from ~~his~~ the commission's decisions to any other body or tribunal. No attorney, representative or agent of any claimant or participant ~~shall be~~ is entitled to charge or receive a fee or compensation or gratuity in any form for representing or assisting or pretending to represent or assist any person to become a participant in ~~said~~ the disabled ~~workmen's~~ workers' relief fund.

§23-4A-8. Disabled workers' relief fund; how funded.

          For the purpose of carrying out the provisions of this article, the ~~commissioner~~ management council shall transfer annually, out of the interest earned during the previous year on investments held by the workers' compensation fund, and out of the amount assessed against self-insured employers pursuant to the provisions of section nine, article two ~~section nine~~ of this chapter an amount estimated by the ~~commissioner~~ executive director to be necessary to carry out the provisions of this article for one year.
          ~~Such~~ The money shall be deposited by the ~~commissioner~~ management council in the disabled workers' relief fund, as required by this article.
ARTICLE 4B. COAL-WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-2. Coal-workers' pneumoconiosis fund established.
          For the relief of persons who are entitled to receive benefits by virtue of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, there is ~~hereby established~~ continued a fund to be known as the coal-workers' pneumoconiosis fund, which fund shall be separate from the workers' compensation fund. The coal-workers' pneumoconiosis fund shall consist of premiums and other funds paid ~~thereto~~ to the fund by employers, subject to the provisions of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, who shall elect to subscribe to ~~such~~ the fund to ensure the payment of benefits required by ~~such~~ the act.
          The state treasurer shall be the custodian of the coal-workers' pneumoconiosis fund, and all premiums, deposits or other moneys paid ~~thereto~~ to the fund shall be deposited in the state treasury to the credit of the coal-workers' pneumoconiosis fund. Disbursements from ~~such~~ the fund shall be made upon requisition signed by the ~~commissioner~~ executive director of the workers' compensation commission to those persons entitled to participate ~~therein~~ in the fund. The West Virginia state board of investments ~~shall have authority to~~ may invest any surplus, reserve or other moneys belonging to the coal-workers' pneumoconiosis fund in accordance with article six, chapter twelve of this code.
§23-4B-5. Payment of benefits.
          Upon receipt of an order of compensation issued pursuant to a claim for benefits filed under the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, the ~~commissioner~~ executive director shall disburse the coal-workers' pneumoconiosis fund in ~~such~~ the amounts and to ~~such~~ the persons as ~~said~~ directed by the order ~~shall direct~~.
§23-4B-6. Coal-workers' pneumoconiosis fund; how funded.
          For the purpose of creating the coal-workers' pneumoconiosis fund, each employer, who ~~shall elect~~ elects to subscribe to ~~such~~ the fund, shall pay premiums based upon and being ~~such~~ a percentage of the payroll of ~~such~~ the employer as determined by the ~~commissioner may determine~~ management council. It ~~shall be~~ is the duty of the ~~commissioner~~ management council to fix and maintain the lowest possible rates of premiums consistent with the maintenance of a solvent fund and the creation and maintenance of a reasonable surplus after providing for payment to maturity of all liability insured pursuant to Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended. ~~Such premium~~ The rates shall be adjusted annually or more often as may, in the opinion of the ~~commissioner~~ management council, be necessary.
          The ~~commissioner~~ management council may by rule ~~and regulation~~ classify subscribers into groups or classes according to the nature of the hazards incident to the business ~~thereof~~ of the subscribers and assign premium rates ~~thereto~~ to the subscribers. In addition, the ~~commissioner~~ management council may by rule ~~and regulation~~ prescribe procedures for subscription, payroll reporting, premium payment, termination of subscription, reinstatement and other matters pertinent to ~~such~~ the subscribers' continuing participation in the coal-workers' pneumoconiosis fund.
§23-4B-7. Administration.
          The coal-workers' pneumoconiosis fund shall be administered by the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission, who shall employ ~~such~~ any employees ~~as may be~~ necessary to discharge his or her duties and responsibilities under this article. All payments of salaries and expenses of ~~such~~ the employees and all expenses peculiar to the administration of this article shall be made by the state treasurer from the coal-workers' pneumoconiosis fund upon requisitions signed by the ~~commissioner~~ executive director.
§23-4B-8b. Transfer of funds to workers' compensation fund.
          (a) Notwithstanding any provision of section eight of this article to the contrary, the assets which were previously transferred from the coal-workers' pneumoconiosis fund and held in a separate account may, on or after the first day of July, two thousand three, be expended for deficit management fund liabilities. Prior to using the moneys, the executive director shall obtain a certificate from the commission's actuary that transferring the moneys from the separate account created under subsection (b), section eight of this article to the deficit management fund will not impair the ability of the coal-workers' pneumoconiosis fund to meet its claim obligations under Title IV of the federal Coal Mine Health and Safety Act of 1996, as amended.
          (b) If in any year expenditures from the workers' compensation deficit management fund created in section one-b, article three of this chapter exceed assets in that fund, the executive director may under the following conditions request an appropriation of moneys from any actuarial surplus that may exist from the coal-workers' pneumoconiosis fund to the deficit management fund. Prior requesting an appropriation the executive director shall obtain a certificate from the commission's actuary as to whether an actuarial surplus and adequate cash flow exists in the coal-workers' pneumoconiosis fund, and if so the amount of the surplus. The executive director shall also obtain an opinion from the commission's actuary as to the amount of the deficit in the deficit management fund. The management council shall determine whether any portion of the actuarial surplus may be transferred and still maintain adequate reserves in the coal-workers' pneumoconiosis fund for claims or increased costs based on changes in the standards for obtaining benefits under Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended.
          (c) Upon meeting the requirements of subsection (b) of this section, the executive director shall, upon approval of the council, submit a written request to the joint committee on government and finance that the Legislature appropriate an amount not to exceed one hundred million dollars from the coal workers' pneumoconiosis fund to the workers compensation deficit management fund. If the executive director request an appropriation from the coal workers' pneumoconiosis fund, the executive director shall not increase benefit rates as provided in section four, article four of this chapter and shall conduct an investigation into the causes of the deficit and determine the best course of action to alleviate the shortfall.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-2. Employers' excess liability fund established.
          (a) To provide insurance coverage for employers subject to this chapter who may be subjected to liability for any excess of damages over the amount received or receivable under this chapter, the ~~division~~ commission may continue the fund known as the employers' excess liability fund, which fund shall be separate from the workers' compensation fund. The employers' excess liability fund shall consist of premiums paid ~~thereto~~ to it by employers who may voluntarily elect to subscribe to the fund for coverage of potential liability to any person who may be entitled to any excess of damages over the amount received or receivable under this chapter.
          (b) The ~~commissioner and the compensation programs performance council are authorized to~~ management council may provide for, by the promulgation of a rule pursuant to ~~subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this code~~ section one-a, article one of this chapter, the continuance, abolition or sale of the employers' excess liability fund established by section one of this article. In the event that the fund is to be sold, the sale shall be conducted through the solicitation of competitive bids. Any funds that ~~may~~ remain after the sale or abolition of the employers' excess liability fund shall be paid into and become a part of the workers' compensation fund to be used for the purposes of that fund. In the event that the employers' excess liability fund program is abolished and the remaining liabilities of that program exceed the amount retained in the employers' excess liability fund, ~~such~~ the excess liability including the costs of administration shall be paid for from the workers' compensation fund.
§23-4C-3. Payment of excess damages from fund.
          Upon receipt of a final order of a court determining the liability under section two, article four of this chapter of a subscribing employer and the amount of the excess of damages over the amount received or receivable under this chapter, the ~~commissioner~~ executive director shall make disbursements from the employers' excess liability fund in ~~such~~ the amounts and to ~~such~~ the persons as ~~such~~ directed by the final order ~~may direct~~. In the event of a proposed settlement of a disputed claim against a subscribing employer, the ~~commissioner~~ executive director, upon approving the settlement upon petition by the subscribing employer, shall make disbursements from the employers' excess liability fund in ~~such~~ the amounts and to ~~such~~ the persons as specified the approved settlement ~~may specify~~. In the event of the settlement of any disputed claim ~~wherein~~ in which one or more of the persons entitled to the proceeds to be paid pursuant to ~~such~~ the settlement is under a legal disability by reason of age, mental incapacity or other reason, ~~such~~ the settlement, if required by other provisions of law to be approved by a circuit court shall be approved by the circuit court of the county ~~wherein such~~ in which the person under disability is a resident or ~~wherein~~ in which a civil action could be brought and maintained upon ~~such~~ the claim, in addition to being approved by the ~~commissioner~~ commission as required by this section. The ~~commissioner~~ executive director shall by ~~legislative~~ rule establish criteria and procedures for the settlement of all disputed claims. In order to expeditiously establish such criteria and procedures, the commissioner is hereby given authority to promulgate such emergency rule or rules as may be necessary in accordance with the provisions of section fifteen, article three, chapter twenty-nine-a of this code. The provisions of said section fifteen, article three, chapter twenty-nine-a notwithstanding such emergency rule, whether procedural, interpretive or legislative, shall be effective upon the filing thereof in the state register and shall have an effective period of not to exceed eighteen months, unless any such rule or rules be altered or amended or such period of time shortened or lengthened by subsequent act of the Legislature. No action shall lie for de novo or other review of such rule to contest or question the existence of circumstances justifying the promulgation of an emergency rule nor to challenge the validity of such rule because of its classification as an emergency rule.
§23-4C-4. Employers' excess liability fund; how funded.
          For the purpose of creating the employers' excess liability fund, each employer who ~~shall elect~~ elects to subscribe to the fund shall pay premiums based upon and being ~~such~~ a percentage of the payroll of the employer as determined by the ~~commissioner may determine~~ management council. It ~~shall be~~ is the duty of the ~~commissioner~~ management council to fix and maintain the lowest possible rates or premiums consistent with the maintenance of a solvent fund. The premium rates shall be adjusted annually or more often as may, in the opinion of the ~~commissioner~~ management council, be necessary.
          The ~~commissioner~~ management council shall initially classify subscribers into groups or classes according to the nature of the unusual hazards incident to the business ~~thereof~~ of the subscribers as contemplated by section four, article two of this chapter and assign premium rates ~~thereto~~ to the subscribers. The fixing, maintaining and adjusting of premium rates and the initial classification of subscribers into groups or classes pursuant to this section ~~shall be deemed to be~~ are findings or determinations of fact and not a legislative rule. In addition, the ~~commissioner~~ management council shall by ~~legislative~~ rule prescribe procedures for subscription, payroll reporting, premium payment, termination of subscription, reinstatement, reclassification of groups, classes or subscribers, the increase or decrease of premiums based upon incidence of liability and amounts awarded, and other matters pertinent to the subscribers' continuing participation in the employers' excess liability fund.
§23-4C-5. Administration.
          The employers' excess liability fund shall be administered by the ~~commissioner of employment programs~~ executive director, who shall employ ~~such~~ any employees ~~as may be~~ that are necessary to discharge his or her duties and responsibilities under this article. All payments of salaries and expenses of the employees and all expenses peculiar to the administration of this article shall be made by the state treasurer from the employers' excess liability fund upon requisitions signed by the ~~commissioner~~ executive director.
ARTICLE 5. REVIEW.

§23-5-1. Notice by commission or self-insured of decision; procedures on claims; objections and hearing.

          (a) The workers' compensation ~~division shall have full power and authority to~~ commission may hear and determine all questions within its jurisdiction. In matters arising under articles three and four of this chapter, the ~~division~~ commission shall promptly review and investigate all claims. The parties to a claim shall file ~~such~~ the information in support of their respective positions as they ~~deem~~ consider proper. In addition, the ~~division is authorized to~~ commission may develop ~~such~~ additional information ~~as it deems~~ that it considers to be necessary in the interests of fairness to the parties and in keeping with the fiduciary obligations owed to the fund. With regard to any issue which is ready for a decision, the ~~division~~ commission shall explain the basis of its decisions.
          (b) Except with regard to interlocutory matters, upon making any decision, upon ~~the~~ making or refusing to make any award or upon ~~the~~ making of any modification or change with respect to former findings or orders, as provided by section sixteen, article four of this chapter, the ~~division~~ commission shall give notice, in writing, to the employer, employee, claimant, or dependant as the case may be, of its action~~, which~~. The notice shall state the time allowed for filing an objection to ~~such~~ the finding ~~and such~~. The action of the ~~division shall be~~ commission is final unless the employer, employee, claimant or dependant shall, within thirty days after the receipt of ~~such~~ the notice, object in writing, to ~~such~~ the finding~~, and unless~~. Unless an objection is filed within ~~such~~ the thirty-day period, ~~such~~ the finding or action ~~shall be forever~~ is final~~, such~~. This time limitation ~~being hereby declared to be~~ is a condition of the right to litigate ~~such~~ the finding or action and hence jurisdictional. Any ~~such~~ objection shall be filed with the office of judges with a copy served upon the ~~division~~ commission and other parties in accordance with the procedures set forth in sections eight and nine of this article. In all instances where a self-insured employer or a third-party administrator has made claims decisions as authorized in this chapter, they shall provide claimants and the commission notice of all claims decisions as provided for by rules for self administration promulgated by the commission, and shall be bound by each requirement imposed upon the commission by this article.
          (c) Where a finding or determination of the ~~division~~ commission is protested only by the employer, and the employer does not prevail in its protest, and in the event the claimant is required to attend a hearing by subpoena or agreement of counsel or at the express direction of the ~~division~~ commission or office of judges, then ~~such~~ the claimant in addition to reasonable traveling and other expenses shall be reimbursed for loss of wages incurred by the claimant in attending ~~such~~ the hearing.
          (d) Once an objection has been filed with the office of judges, the parties to the objection shall be offered an opportunity for mediation of the disputed issue by the division. If all of the parties to the objection agree to mediation, the division shall designate a deputy who was not involved in the original decision to act as mediator: ~~Provided,~~ That on issues related solely to the medical necessity of proposed medical treatment or diagnostic services, the division shall offer the parties to the objection a selection of names of medical providers in the appropriate specialty. The parties shall then either agree upon a medical provider who shall act as mediator or, in the absence of an agreement, the division shall select a medical provider who shall act as mediator. In cases where issues of medical necessity are intertwined with nonmedical treatment or nondiagnostic issues, both a medical provider and a designated deputy shall act as comediators and shall consider their respective issues. Neither shall be empowered to overturn the decision of the other.
          ~~Upon entering into mediation, the parties shall inform the office of judges of that action and the office of judges shall stay further action on the objection.~~
          The mediator shall solicit the positions of the parties and shall review such additional information as the parties or the division shall furnish. The mediator shall then issue a decision in writing with the necessary findings of fact and conclusions of law to support that decision. If any party disagrees with the decision, that party may note its objection to the office of judges, the division and the other parties, and the office of judges shall lift the stay on the original protest. The decision and any information introduced during the attempted mediation shall be subject to consideration by the office of judges in making its decision on the objection. Upon acceptance by the parties of the result of the mediation, the office of judges shall dismiss the objection with prejudice.
          The mediator shall conduct the mediation in an informal manner and without regard to the formal rules of evidence and procedure. Once the parties agree to mediation, then the agreement cannot be withdrawn.
          (e) The panel of medical providers who shall serve as mediators shall be selected and approved by the compensation programs performance council. A medical provider serving as a mediator shall have the same protections from liability as does the division's employees with regard to their decisions including coverage by the board of risk management which shall be provided by the workers' compensation division.
          ~~(f)~~ (d) The ~~division is expressly authorized to~~ commission or self-insured employer may amend, correct or set aside any order or decision on any issue entered by it which is on its face defective or clearly erroneous or the result of mistake, clerical error or fraud. Jurisdiction to take this action ~~shall continue~~ continues until the expiration of one hundred eighty days from the date of entry of an order unless the order is sooner affected by appellate action: Provided, That corrective actions in the case of fraud may be taken at any time.
          ~~(g)~~ (e) All objections to orders of the ~~division~~ commission or self-insured employers shall be styled in the name of the workers' compensation ~~division~~ commission. All appeals prosecuted from the office of judges ~~or from the appeal board~~ shall either be in the name of the workers' compensation ~~division~~ commission or shall be against the workers' compensation ~~division~~ commission unless the parties to the appeal are limited to a claimant and a self-insured employer. In all ~~such matters~~ actions under this article, the workers' compensation ~~division~~ commission shall be the party in interest unless the parties to the appeal are limited to a claimant and a self-insured employer.

§23-5-2. Application by employee for further adjustment of claim; objection to modification; hearing.

In any case where an injured employee makes application in writing for a further adjustment of his or her claim under the provisions of section sixteen, article four of this chapter, and ~~such~~ the application discloses cause for a further adjustment ~~thereof~~, the ~~division~~ commission shall, after due notice to the employer, make ~~such~~ the modifications, or changes with respect to former findings or orders in ~~such~~ the claim ~~as may be~~ that are justified~~, and any~~. Any party dissatisfied with any ~~such~~ modification or change so made by the ~~division shall~~ commission is, upon proper and timely objection, be entitled to a hearing, as provided in section nine of this article.
§23-5-3. Refusal to reopen claim; notice; objection.
~~If, however, in~~ In any case in which application for further adjustment of a claim is filed under section two of this article, it ~~shall appear~~ appears to the ~~division~~ commission that ~~such~~ the application fails to disclose a progression or aggravation in the claimant's condition, or some other fact or facts which were not ~~theretofore~~ previously considered by the ~~division~~ commission in its former findings, and which would entitle ~~such~~ the claimant to greater benefits than the claimant has already received, the ~~division~~ commission shall, within a reasonable time, notify the claimant and the employer that ~~such~~ the application fails to establish a prima facie cause for reopening the claim ~~such~~. The notice shall be in writing stating the reasons for denial and the time allowed for objection to ~~such~~ the decision of the ~~division~~ commission. The claimant may, within thirty days after receipt of ~~such~~ the notice, object in writing to ~~such~~ the finding ~~and unless~~. Unless the objection is filed within ~~such~~ the thirty-day period, no ~~such~~ objection shall be allowed~~, such~~. This time limitation ~~being hereby declared to be~~ is a condition of the right to ~~such~~ objection and hence jurisdictional. Upon receipt of an objection, the office of judges shall afford the claimant an evidentiary hearing as provided in section nine of this article.

§23-5-4. Application by employer for modification of award; objection to modification; hearing.

          In any case ~~wherein~~ in which an employer makes application in writing for a modification of any award previously made to an employee of ~~said~~ the employer, and ~~such~~ the application discloses cause for a further adjustment ~~thereof~~, the ~~division~~ commission shall, after due notice to the employee, make ~~such~~ the modifications or changes with respect to former findings or orders ~~in such form as may be~~ that are justified~~, and any~~. Any party dissatisfied with any ~~such~~ modification or change so made by the ~~division shall~~ commission is, upon proper and timely objection, be entitled to a hearing as provided in section nine of this article.
§23-5-5. Refusal of modification; notice; objection.
          If in any ~~such~~ case it ~~shall appear~~ appears to the ~~division~~ commission that the application filed pursuant to section four of this article fails to disclose some fact or facts which were not ~~theretofore~~ previously considered by the ~~division~~ commission in its former findings, and which would entitle ~~such~~ the employer to any modification of ~~said~~ the previous award, the ~~division~~ commission shall, within sixty days from the receipt of ~~such~~ the application, notify the claimant and employer that ~~such~~ the application fails to establish a just cause for modification of ~~said~~ the award. ~~Such~~ The notice shall be in writing stating the reasons for denial and the time allowed for objection to ~~such~~ the decision of the ~~division~~ commission. The employer may, within thirty days after receipt of ~~said~~ the notice, object in writing to ~~such~~ the decision~~, and unless~~. Unless the objection is filed within ~~such~~ the thirty-day period, no ~~such~~ objection shall be allowed~~, such~~. This time limitation ~~being hereby declared to be~~ is a condition of the right to ~~such~~ objection and hence jurisdictional. Upon receipt of ~~such~~ the objection, the office of judges shall afford the employer an evidentiary hearing as provided in section nine of this article.
§23-5-6. Time periods for objections and appeals; extensions.
          Notwithstanding the fact that the time periods set forth for objections, protests and appeals to or from the workers' compensation ~~appeal board~~ office of judges, are jurisdictional, ~~such~~ the periods may be extended or excused upon application of either party within a period of time equal to the applicable period by requesting an extension of ~~such~~ the time period showing good cause or excusable neglect, accompanied by the objection or appeal petition. In exercising ~~such~~ discretion the administrative law judge, appeal board or court, as the case may be, shall consider whether the applicant was represented by counsel and whether timely and proper notice was actually received by the applicant or the applicant's representative.
§23-5-7. Compromise and settlement.
          With the exception of medical benefits for occupational disease claims, the claimant, the employer and the workers' compensation ~~division~~ commission may negotiate a final settlement of any and all issues in a claim wherever the claim ~~may then be~~ is in the ~~review~~ administrative or appellate processes. Upon entering into an agreement, the parties shall file the written and executed agreement with the office of judges. The office of judges shall review the proposed agreement to determine if it is fair and reasonable to the parties and shall ensure that each of the parties are fully aware of the effects of the agreement including what each party is conceding in exchange for the agreement. If the office of judges concludes that the agreement is not fair or is not reasonable or that one of the parties is not fully informed, ~~then~~ the agreement will not be approved~~, which~~. The decision on this question ~~shall~~ is not be reviewable. If the employer is not active in the claim, ~~then~~ the ~~division~~ commission may negotiate a final settlement of any and all issues in a claim except for medical benefits for occupational disease claims with the claimant. Upon approval of the settlement, it shall be made a part of the claim record ~~and the~~. The office of judges shall send written notice of the settlement to all parties and, where appropriate, to the appeal board or the supreme court of appeals. Except in cases of fraud, no issue that is the subject of an approved settlement agreement may be reopened by any party, including the ~~division~~ commission. Any settlement agreement may provide for a lump sum payment or a structured payment plan, or any combination thereof, or ~~such~~ any other basis as the parties may agree. If ~~such~~ a self-insured employer later fails to make the agreed upon payment, the ~~division~~ commission shall assume the obligation to make the payments and shall ~~be entitled to~~ recover the amounts paid or to be paid from the self-insured employer and its sureties or guarantors or both as provided for in sections five and five-a, article two of this chapter.
          The amendments to this section enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-nine shall apply to all settlement agreements executed after ~~such~~ the effective date.

§23-5-8. Designation of office of administrative law judges; powers of chief administrative law judge.

          (a) The workers' compensation office of administrative law judges previously created pursuant to chapter twelve, acts of the Legislature, one thousand nine hundred ninety, second extraordinary session, is hereby continued and designated to be an integral part of the workers' compensation system of this state. The office of judges shall be under the supervision of a chief administrative law judge who shall be appointed by the governor, with the advice and consent of the Senate. The previously appointed incumbent of that position who was serving on the second day of February, one thousand nine hundred ninety-five, shall continue to serve in that capacity unless subsequently removed as provided for in subsection (b) of this section.
          (b) The chief administrative law judge shall be a person who has been admitted to the practice of law in this state and shall also have had at least four years of experience as an attorney. The chief administrative law judge's salary shall be set by the ~~compensation programs performance~~ workers' compensation management council ~~created in section one, article three, chapter twenty-one-a of this code~~. ~~Said~~ The salary shall be within the salary range for comparable chief administrative law judges as determined by the state personnel board created by section six, article six, chapter twenty-nine of ~~said~~ this code. The chief administrative law judge may only be removed by a vote of two thirds of the members of the ~~compensation programs performance~~ workers' compensation management council and shall not be removed except for official misconduct, incompetence, neglect of duty, gross immorality or malfeasance and then only after he or she has been presented in writing with the reasons for his or her removal and is given an opportunity to respond and to present evidence. No other provision of this code purporting to limit the term of office of any appointed official or employee or affecting the removal of any appointed official or employee ~~shall be~~ is applicable to the chief administrative law judge.
          (c) ~~By and with the consent of the commissioner the~~ The chief administrative law judge shall employ administrative law judges and other personnel as that are necessary for the proper conduct of a system of administrative review of orders issued by the workers' compensation ~~division~~ commission which orders have been objected to by a party. ~~and all such~~ The employees shall be in the classified service of the state. Qualifications, compensation and personnel practice relating to the employees of the office of judges, other than the chief administrative law judge, shall be governed by the provisions of ~~the statutes,~~ this code and rules ~~and regulations~~ of the classified service pursuant to article six, chapter twenty-nine of this code. All ~~such~~ additional administrative law judges shall be persons who have been admitted to the practice of law in this state and shall also have had at least two years of experience as an attorney. The chief administrative law judge shall supervise the other administrative law judges and other personnel which collectively shall be referred to in this chapter as the office of judges.
          (d) The administrative expense of the office of judges shall be included within the annual budget of the workers' compensation ~~division~~ commission.
          (e) ~~Subject to the approval of the compensation programs performance council pursuant to subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this code, the~~ The office of judges shall, from time to time, promulgate rules of practice and procedure for the hearing and determination of all objections to findings or orders of the workers' compensation ~~division pursuant to section one of this article~~ commission. The office of judges shall not have the power to initiate or to promulgate legislative rules as that phrase is defined in article three, chapter twenty-nine-a of ~~said~~ this code. Any rules adopted pursuant to this section which are applicable to the provisions of this article are not subject to sections nine through sixteen, inclusive, article three, chapter twenty-nine-a of this code. The office of judges shall follow the remaining provisions of said chapter for giving notice to the public of its actions and the holding of hearings or receiving of comments on the rules.
          (f) The chief administrative law judge ~~shall continue to have~~ has the power to hear and determine all disputed claims in accordance with the provisions of this article, establish a procedure for the hearing of disputed claims, take oaths, examine witnesses, issue subpoenas, establish the amount of witness fees, keep ~~such~~ records and make ~~such~~ reports as that are necessary for disputed claims and exercise ~~such~~ any additional powers, including the delegation of ~~such~~ powers to administrative law judges or hearing examiners ~~as may be~~ that are necessary for the proper conduct of a system of administrative review of disputed claims. The chief administrative law judge shall make ~~such~~ reports ~~as may be~~ that are requested of him or her by the ~~compensation programs performance~~ workers' compensation management council.

§23-5-9. Hearings on objections to commission or self-insured employer decisions; mediation; remand.

§23-5-10a Appeal from administrative law judge decision to intermediate court of appeals.

          The decision of the workers' compensation office of judges regarding any protest is final and benefits shall be paid or denied in accordance with the decision, subject to the following provisions:
          (1) A claimant, employer or the workers' compensation commission may appeal, as a matter of right, subject to the notice and procedure requirements in this section, a decision by the workers' compensation office of judges to the intermediate court of appeals within thirty days of receipt of a final order.
          (2) For all issues, the intermediate court of appeals may hear the appeal only if it appears on the face of the petition for appeal that the administrative law judge's findings were:
          (A) In clear violation of unambiguous statutory provisions or the result of erroneous conclusions of law;
          (B) Beyond the statutory authority or jurisdiction of the administrative law judge or based upon unlawful procedures;
          (C) Based upon findings of fact that were clearly wrong in view of the reliable, probative and substantial evidence on the designated record; or
          (D) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

§23-5-15a. Appeals from final decisions of offices of judges to intermediate court of appeals.

          From any final decision of the office of judges, including any order of remand, an application for review may be prosecuted by either party or by the workers' compensation commission to the intermediate court of appeals within thirty days from the date of the final decision by the filing of a petition to the court against the office of judges and the adverse party or parties as respondents. Unless the petition for review is filed within the thirty-day period, no appeal or review is allowed. This time limitation is a condition of the right to appeal or review and, hence, jurisdictional. The clerk of the court shall notify each of the respondents and the workers' compensation commission of the filing of the petition. The office of judges shall, within ten days after receipt of the notice, file with the clerk of the court the record, including all the evidence. The court or any judge thereof in vacation may determine whether or not a review shall be granted. If a review is granted to a nonresident of this state, he or she shall execute and file with the clerk before the order or review becomes effective, a bond, with security to be approved by the clerk, conditioned to perform any judgment which may be awarded against him or her thereon.
§23-5-17. Termination of office of judges.
          The office of judges ~~shall terminate~~ terminates on the first day of July, two thousand ~~three~~ nine, pursuant to the provisions of article ten, chapter four of this code unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§23-5-18. Workers' compensation appeal board termination.
          Pursuant to the provisions of article ten, chapter four of this code, the workers' compensation appeal board shall continue to exist until the first day of July, two thousand three, unless sooner terminated, continued or reestablished by act of the Legislature. After the thirty-first day of December, two thousand three, the workers' compensation appeal board shall be terminated, the provisions of sections ten, eleven, twelve, fourteen, and sixteen of this article shall be terminated and shall be of no further force and effect, and all matters pending before the appeal board on the thirty-first day of December, two thousand three shall be transferred to the intermediate court of appeals created in article one-b, chapter fifty-one of this code.
CHAPTER 26. STATE BENEVOLENT INSTITUTIONS.

ARTICLE 8. EMERGENCY HOSPITALS.

§26-8-2. Patients; expenses; disposition of receipts.

          The ~~state commissioner of public institutions~~ department of health and human resources shall admit to ~~said~~ the hospitals, under its rules and regulations, persons requiring hospital care and shall treat free of charge persons accidentally injured in this state while engaged in their usual employment, but preference at all times shall be given to persons accidentally injured: Provided, That the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission shall pay to said the hospitals for the treatment of anyone entitled to benefits or aid out of the workers' compensation fund the same fee or expenses as that would be paid to a private hospital for similar treatment. All moneys collected under this section shall be paid into the state treasury through the state commissioner of public institutions as required in section thirteen, article one, chapter twenty-five of this code.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-125. Employment and income reporting.
          (a) For purposes of this section:
          (1) "Employee" means an individual who is an "employee" for purposes of federal income tax withholding, as defined in 26 U. S. C. §3401;
          (2) "Employer" means the person or entity for whom an individual performs or performed any service of whatever nature and who has control of the payment of the individual's wages for performance of ~~such~~ the service or services, as defined in 26 U. S. C. §3401;
          (3) An individual is considered a "new hire" on the first day in which that individual performs services for remuneration and on which an employer begins to withhold amounts for income tax purposes.
          (b) Except as provided in subsections (c) and (d) of this section, all employers doing business in the state shall report to the bureau for child support enforcement:
          (1) The hiring of any person who resides or works in this state to whom the employer anticipates paying earnings; and
          (2) The rehiring or return to work of any employee who resides or works in this state.
          (c) Employers are not required to report the hiring, rehiring or return to work of any person who is an employee of a federal or state agency performing intelligence or counterintelligence functions if the head of ~~such~~ the agency has determined that reporting could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.
          (d) An employer that has employees in states other than this state and that transmits reports magnetically or electronically is not required to report to the bureau for child support enforcement the hiring, rehiring or return to work of any employee if the employer has filed with the secretary of the federal department of health and human services, as required by 42 U. S. C. §653A, a written designation of another state in which it has employees as the reporting state.
          (e) Employers shall report by mailing to the bureau for child support enforcement a copy of the employee's W-4 form; however, an employer may transmit ~~such~~ the information through another means if approved in writing by the bureau for child support enforcement prior to the transmittal. The report shall include the employee's name, address and social security number, the employer's name and address, any different address of the payroll office and the employer's federal tax identification number. The employer may report other information, such as date of birth or income information, if desired.
          (f) Employers shall submit a report within fourteen days of the date of the hiring, rehiring or return to work of the employee. However, if the employer transmits the reports magnetically or electronically by two monthly submissions, the reports shall be submitted not less than twelve days nor more than sixteen days apart.
          (g) An employer shall provide to the bureau for child support enforcement, upon its written request, information regarding an obligor's employment, wages or salary, medical insurance, start date and location of employment.
          (h) Any employer who fails to report in accordance with the provisions of this section shall be assessed a civil penalty of no more than twenty-five dollars per failure. If the failure to report is the result of a conspiracy between the employer and the employee not to supply the required report or to supply a false or incomplete report, the employer shall be assessed a civil penalty of no more than five hundred dollars.
          (i) Employers required to report under this section may assess each employee so reported one dollar for the administrative costs of reporting.
          (j) Uses for the new hire information include, but are not limited to, the following:
          (1) The state directory of new hires shall furnish the information to the national directory of new hires;
          (2) The bureau for child support enforcement shall use information received pursuant to this section to locate individuals for purposes of establishing paternity and of establishing, modifying and enforcing child support obligations and may disclose ~~such~~ the information to any agent of the agency that is under contract with the bureau to carry out ~~such~~ those purposes;
          (3) State agencies responsible for administering a program specified in 42 U. S. C. §1320b- 7(b) shall have access to information reported by employers for purposes of verifying eligibility for the program; and
          (4) The bureau of employment programs and the workers' compensation commission shall have access to information reported by employers for purposes of administering employment security and workers' compensation programs.
§48-18-131. Access to records, confidentiality.
          (a) All records in the possession of the bureau for child support enforcement, including records concerning an individual case of child or spousal support, ~~shall be kept~~ is confidential and shall not be released except as ~~provided below~~ follows:
          (1) Records shall be disclosed or withheld as required by federal law or regulations promulgated thereunder notwithstanding other provisions of this section.
          (2) Information as to the whereabouts of a party or the child shall not be released to a person against whom a protective order has been entered with respect to ~~such~~ that party or child or where the state has reason to believe that the release of the information to the person making the request may result in physical or emotional harm to the party or the child.
          (3) The phone number, address, employer and other information regarding the location of the obligor, the obligee and the child shall only be disclosed: (A) Upon his or her written consent, to the person whom the consent designates; or (B) notwithstanding subdivision (4) of this subsection, to the obligee, the obligor, the child or the caretaker or representative of the child, upon order of a court if the court finds that the disclosure is for a bona fide purpose, is not contrary to the best interest of a child and does not compromise the safety of any party: Provided, That the identity and location of the employer may be disclosed on the letters, notices and pleadings of the bureau as necessary and convenient for the determination of support amounts and the establishment, investigation, modification, enforcement, collection and distribution of support.
          (4) Information and records other than the phone number, address, employer and information regarding the location of the obligor, the obligee and the child shall be disclosed to the obligor, the obligee, the child or the caretaker of the child or his or her duly authorized representative, upon his or her written request: Provided, That when the obligor requests records other than collection and distribution records, financial records relevant to the determination of the amount of support pursuant to the guidelines, or records the obligor has supplied, the bureau shall mail a notice by first- class mail to the last known address of the obligee notifying him or her of the request. The notice shall advise the obligee of his or her right to object to the release of records on the grounds that the records are not relevant to the determination of the amount of support or the establishment, modification, enforcement, collection or distribution of support. The notice shall also advise the obligee of his or her right to disclosure of records provided in this section in order to determine what records the bureau for child support enforcement may have. In the event of any objection, the bureau shall determine whether or not the information shall be released.
          (5) Information in specific cases may be released as is necessary or to determine the identity, location, employment, income and assets of an obligor.
          (6) Information and records may be disclosed to the bureau of vital statistics, bureau of employment programs, the workers' compensation ~~division~~ commission, state tax department and the internal revenue service, or other state or federal agencies or departments ~~as may be~~ that are necessary or desirable in obtaining any address, employment, wage or benefit information for the purpose of determining the amount of support or establishing, enforcing, collecting and distributing support.
          (b) Any person who willfully violates this section ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars, or confined in the county or regional jail not more than six months, or both fined and ~~imprisoned~~ confined.
CHAPTER 51. COURTS AND THEIR OFFICERS
ARTICLE 1B. INTERMEDIATE COURT OF APPEALS

§51-1B-1. Intermediate court of appeals; jurisdiction; initial appointment; salary.

          (a) There is hereby created the West Virginia intermediate court of appeals which consists of three justices, any two of whom constitute a quorum.
          (b) The intermediate court of appeals shall exercise exclusive jurisdiction over all appeals from the workers compensation office of judges filed after the thirty-first day of December, two thousand three and over all matters transferred to the intermediate court of appeals pursuant to section eighteen, article five, chapter twenty-three of this code. Appeals filed with the supreme court of appeals prior to the thirty-first day of December, two thousand three may, in the discretion of the supreme court of appeals, be assigned to the intermediate court of appeals for consideration and decision in accordance with the provisions of this article.
          (c) The governor shall appoint, with the advice and consent of the Senate, three qualified attorneys to serve five year terms as justices of the intermediate court of appeals. No more than two of the justices may be from the same political party.
          (d) The initial appointees shall serve until confirmed by the Senate. If the Senate does not confirm an appointee the governor shall forthwith submit the name of another qualified appointee for consideration by the Senate. The initial appointments shall be made no later than the thirty-first day of December, two thousand three. Should a vacancy occur, the governor shall, within thirty days of vacation of the position, appoint a new member to fill the unexpired term.
          (e) The salary of each of the justices of the intermediate court of appeals is ninety-two thousand dollars per year.
§51-1B-2. Qualifications
          (a) A justice of the intermediate court of appeals must be a resident of this state, be a member in good standing of the West Virginia state bar, have a minimum of ten years' experience as an attorney admitted to practice law in this state prior to appointment, have a minimum of five years' experience in preparing and presenting cases or hearing actions and making decisions on the basis of the record of those hearings before administrative agencies, regulatory bodies or courts of record at the federal, state or local level, and must, at the time he or she takes office, and thereafter during his or her continuance in office, reside in the state.
          (b) No justice of the intermediate court of appeals may hold any other office, or accept any appointment or public trust, nor shall he or she become a candidate for any elective public office or nomination thereto, except a judicial office. Violation of this subsection requires the justice to vacate his or her office. No justice of an intermediate court of appeals may engage in the practice of law during his or her term of office.
§51-1B-3. Chief justice.
          The court shall designate one of its justices in rotation to be chief justice of the court for as long as the court may determine by order made and entered of record. In the absence of the chief justice, any other justice designated by the justices present shall act as chief justice.
§51-1B-4. Regular terms.
          Two terms of the intermediate court of appeals shall be held every year at Charleston, in Kanawha county, the first commencing on the second Tuesday in January and ending on the thirty- first day of July, the second on the first Wednesday in September and ending on the fifteenth day of December. The intermediate court of appeals shall, from time to time, hold hearings in other counties of the state as the court finds appropriate.
§51-1B-5. Location.
          The intermediate court of appeals shall be located in the same facility as or in close proximity to the West Virginia supreme court of appeals.
§51-1B-6. Appeals from worker's compensation office of judges.
          (a) A claimant, employer, or the workers' compensation commission may appeal, as a matter of right, subject to the notice and procedure requirements in this section, a decision by the workers' compensation office of judges to the intermediate court of appeals within thirty days of receipt of notice of the office of judges' decision.
          (b) For all issues, the board may hear the appeal only if it appears on the face of the petition for appeal that the administrative law judge's findings were:
          (1) In clear violation of unambiguous statutory provisions or the result of erroneous conclusions of law; or
          (2) Beyond the statutory authority or jurisdiction of the administrative law judge or based upon unlawful procedures; or
          (3) Based upon findings of fact that were clearly wrong in view of the reliable, probative and substantial evidence on the designated record; or
          (4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
§51-1B-7. Regulation of pleading, practice and procedure.
          The intermediate court of appeals shall make general rules regarding the pleading, practice and procedure to be used by the court: Provided, That the rules are not inconsistent with any rule of the supreme court of appeals. The rules become effective upon approval by the supreme court of appeals.
§51-1B-8. Presentation of petition; time for filing petition.
          A party seeking to appeal a decision to the intermediate court of appeals must file a petition in accordance with and in the time provided for by the rules of appellate procedure for the intermediate court of appeals.
§51-1B-9. Stay of proceedings.
          Any petition for a stay of proceedings must be filed and processed in accordance with the rules of appellate procedure for the intermediate court of appeals.
§51-1B-10. Decisions.
          (a) In all cases before it, the intermediate court of appeals shall consider the record, legal briefs of the parties, and where the court considers necessary, arguments of the parties prior to rendering a decision.
          (b) Any decision reversing, remanding or affirming a decision of the office of judges must set forth the reasons therefore, including the legal basis and the findings of fact that led to the decision.
§51-1B-11. Adjournment.
          The court may, at any regular or special term, adjourn from day to day or from time to time, as the court may order, until its close.

§51-1B-10. Clerk; deputy; other assistants and employees; compensation; expenses.

          The intermediate court of appeals, or judges thereof in vacation, may appoint a clerk, who shall give bond as required by article two, chapter six of this code. The intermediate court of appeals, or judges thereof in vacation, may appoint one deputy clerk, and other full-time and part- time assistants and clerical employees necessary to perform properly the functions and duties of the office of the clerk. The annual compensation of the clerk shall be fixed by the court. The clerk and other employees shall serve at the will and pleasure of the court or judges. Vacancies in the office of the clerk which occur during vacation may be filled by appointment, in writing, made by the judges of the court or a majority thereof. The administrative and other operating expenses of the intermediate court of appeals shall be included and paid from the annual budget of the supreme court of appeals.
§51-1B-13. Duties of clerk.
          It is the duty of the clerk of the intermediate court of appeals to attend in person, or by deputy, all the sessions of the court, to obey its orders and directions during term and in vacation, to take care of and preserve in an office, kept for the purpose, all records and papers of the court, and to perform other duties as prescribed by law or required of him or her by the court.
§51-1B-14. Appeals to the supreme court of appeals.
          (a) A petition to the supreme court of appeals for appeal of an order of the intermediate court of appeals shall be filed within thirty days of the entry of the order. A petition for appeal shall be filed in the office of the clerk of the supreme court of appeals in accordance with the supreme court rules for appellate procedure.
          (b) The supreme court of appeals may refuse to consider a petition for appeal, may affirm or reverse the order, may affirm or reverse the order in part or may remand the case with instructions to the intermediate court of appeals.
          (c) In considering a petition for appeal, the supreme court of appeals shall consider the record provided by the intermediate court of appeals. The supreme court of appeals shall reject or modify findings of fact made by the intermediate court of appeals only if they are not supported by any evidence in the record. The decision of the intermediate court of appeals shall be overturned or modified only if it is contrary to the constitution, is in clear violation of unambiguous statutory provisions or the result of erroneous conclusions of law.
§51-1B-15. Termination of article.
          The provisions of this article shall be terminated and be of no further force and effect after the thirty-first day of December, two thousand eight.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-24g. Workers' compensation health care offenses; fraud; theft or embezzlement; false statements; penalties; notice; prohibition against providing future services; penalties; asset forfeiture; venue.

ARTICLE 3. PURCHASING DIVISION.

§5A-3-33d. Grounds for debarment.
          Grounds for debarment are:
          ~~(a)~~ (1) Conviction of an offense involving fraud or a felony offense in connection with obtaining or attempting to obtain a public contract or subcontract;
          ~~(b)~~ (2) Conviction of any federal or state antitrust statute relating to the submission of offers;
          ~~(c)~~ (3) Conviction of an offense involving embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property in connection with the performance of a contract;
          ~~(d)~~ (4) Conviction of a felony offense demonstrating a lack of business integrity or business honesty that affects the present responsibility of the vendor or subcontractor;
          ~~(e)~~ (5) Default on obligations owed to the state, including, but not limited to, obligations under the West Virginia workers' compensation act, the West Virginia unemployment compensation act and West Virginia state tax and revenue laws. For purposes of this subsection, a vendor is in default when, after due notice, the vendor fails to submit a required payment, interest thereon or penalty, and has not entered into a repayment agreement with the appropriate agency of the state or has entered into a repayment agreement but does not remain in compliance with its obligations under the repayment agreement. In the case of a vendor granted protection by order of a federal bankruptcy court or a vendor granted an exemption under any rule of the bureau of employment programs or the workers' compensation commission, the director may waive debarment under section thirty-three-f of this article: Provided, That in no event may debarment be waived with respect to any vendor who has not paid all current state obligations for at least the four most recent calendar quarters, excluding the current calendar quarter, or with respect to any vendor who is in default on a repayment agreement with an agency of the state;
          ~~(f)~~ (6) The vendor is not in good standing with a licensing board, in that the vendor is not licensed when licensure is required by the law of this state, or the vendor has been found to be in violation of an applicable licensing law after notice, opportunity to be heard and other due process required by law; and
__________~~(g)~~ (7) Violation of the terms of a public contract or subcontract for:
          ~~(1)~~ (A) Willful failure to substantially perform in accordance with the terms of one or more public contracts;
          ~~(2)~~ (B) Performance in violation of standards established by law or generally accepted standards of the trade or profession amounting to intentionally deficient or grossly negligent performance on one or more public contracts;
          ~~(3)~~ (C) Use of substandard materials on one or more public contracts or defects in construction in one or more public construction projects amounting to intentionally deficient or grossly negligent performance, even if discovery of the defect is subsequent to acceptance of a construction project and expiration of any warranty thereunder;
          ~~(4)~~ (D) A repeated pattern or practice of failure to perform so serious and compelling as to justify debarment; or
          ~~(5)~~ (E) Any other cause of a serious and compelling nature amounting to knowing and willful misconduct of the vendor that demonstrates a wanton indifference to the interests of the public and that caused, or that had a substantial likelihood of causing, serious harm to the public.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION SHARED.

§5B-3-4. Commission review of procedural rules, interpretive rules and existing legislative rules.

          (a) The joint commission on economic development may review any procedural ~~rules~~ rule, interpretive ~~rules~~ rule or existing legislative ~~rules~~ rule and make recommendations concerning ~~such~~ the rules to the Legislature.
          (b) The development office and the tourism commission established pursuant to article two of this chapter, the economic development authority established pursuant to article fifteen, chapter thirty-one of this code, the bureau of employment programs established pursuant to article four, chapter twenty-one-a of this code, the workers' compensation commission established pursuant to article one, chapter twenty-three of this code, the workforce investment commission established pursuant to article two-c of this chapter, West Virginia jobs investment trust, regional planning and development councils, West Virginia rural development council, governor's office of technology and West Virginia clearinghouse for workforce education shall each file a copy of its legislative rules with the commission as provided for ~~herein~~ in this section. Each agency that proposes legislative rules in accordance to the provisions of article three, three-a or three-b, chapter twenty- nine-a of this code relating to economic development or workforce development shall file the rules with the joint commission at the time the rules are filed with the secretary of state prior to the public comment period or public hearing required in said chapter.
§5B-3-5. Joint commission on economic development studies.
          (a) The joint commission on economic development shall study the following:
          (1) The feasibility of establishing common regional configurations for such purposes as local workforce investment areas, regional educational service agencies and for all other purposes the commission considers feasible. The study should review the existing levels of cooperation between state and local economic developers; complete an analysis of possible regional configurations and outline examples of other successful regional systems or networks found throughout the world. If the study determines that the common regional configurations are feasible, the commission shall recommend legislation establishing common regional designations for all purposes the commission considers feasible. In making the designation of regional areas, the study shall take into consideration, but not be limited to, the following:
          (A) Geographic areas served by local educational agencies and intermediate educational agencies;
          (B) Geographic areas served by post-secondary educational institutions and area vocational education schools;
          (C) The extent to which ~~such~~ the local areas are consistent with labor market areas;
          (D) The distance that individuals will need to travel to receive services provided in ~~such~~ the local areas; and
          (E) The resources of ~~such~~ the local areas that are available to effectively administer the activities or programs;
          (2) The effectiveness and fiscal impact of incentives for attracting and growing businesses, especially technology-intensive companies; and
          (3) A comprehensive review of West Virginia's existing economic and community development resources and the recommendation of an organizational structure, including, but not limited to, the reorganization of the bureau of commerce and the development office that would allow the state to successfully compete in the new global economy.
          (b) In order to effectuate in the most cost-effective and efficient manner the studies required in this article, it is necessary for the joint commission to assemble and compile a tremendous amount of information. The development office will assist the joint commission in the collection and analysis of this information. The tourism commission established pursuant to article two of this chapter, the economic development authority established pursuant to article fifteen, chapter thirty-one of this code, the bureau of employment programs established pursuant to article four, chapter twenty-one-a of this code, the workers' compensation commission established pursuant to article one, chapter twenty-three of this code, the workforce investment commission established pursuant to article two-c of this chapter, West Virginia jobs investment trust, regional planning and development councils, West Virginia rural development council, governor's office of technology and West Virginia clearinghouse for workforce education all shall provide a copy of the agency's annual report as submitted to the governor in accordance with the requirements set forth in section twenty, article one, chapter five of this code to the West Virginia development office. The development office shall review, analyze and summarize the data contained in the reports, including its own annual report, and annually submit its findings to the joint commission on or before the thirty-first day of December.
          (c) The legislative auditor shall provide to the joint commission a copy of any and all reports on agencies listed in subsection (b) of this section, which are required under article ten, chapter four of this code.
          (d) The joint commission shall complete the studies set forth in this section and any other studies it the joint commission determines to undertake prior to the first day of December of each year and may make recommendations, including recommended legislation for introduction during the regular session of the Legislature.
CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT.

ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.

§5F-2-1. Transfer and incorporation of agencies and boards; funds.
          (a) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of administration:
          (1) Building commission provided for in article six, chapter five of this code;
          (2) Public employees insurance agency and public employees insurance agency advisory board provided for in article sixteen, chapter five of this code;
          (3) Governor's mansion advisory committee provided for in article five, chapter five-a of this code;
          (4) Commission on uniform state laws provided for in article one-a, chapter twenty-nine of this code;
          (5) Education and state employees grievance board provided for in article twenty-nine, chapter eighteen of this code and article six-a, chapter twenty-nine of this code;
          (6) Board of risk and insurance management provided for in article twelve, chapter twenty- nine of this code;
          (7) Boundary commission provided for in article twenty-three, chapter twenty-nine of this code;
          (8) Public defender services provided for in article twenty-one, chapter twenty-nine of this code;
          (9) Division of personnel provided for in article six, chapter twenty-nine of this code;
          (10) The West Virginia ethics commission provided for in article two, chapter six-b of this code; ~~and~~
          (11) Consolidated public retirement board provided for in article ten-d, chapter five of this code; and
__________(12) Workers' compensation provided for in article five, chapter twenty-three of this code.
          (b) The department of commerce, labor and environmental resources and the office of secretary of the department of commerce, labor and environmental resources are abolished. For purposes of administrative support and liaison with the office of the governor, the following agencies and boards, including all allied, advisory and affiliated entities, are grouped under two bureaus and one commission as follows:
          (1) Bureau of commerce;
          (A) Division of labor provided for in article one, chapter twenty-one of this code, which includes:
          (i) Occupational safety and health review commission provided for in article three-a, chapter twenty-one of this code; and
          (ii) Board of manufactured housing construction and safety provided for in article nine, chapter twenty-one of this code;
          (B) Office of miners' health, safety and training provided for in article one, chapter twenty- two-a of this code. The following boards are transferred to the office of miners' health, safety and training for purposes of administrative support and liaison with the office of the governor:
          (i) Board of coal mine health and safety and coal mine safety and technical review committee provided for in article six, chapter twenty-two-a of this code;
          (ii) Board of miner training, education and certification provided for in article seven, chapter twenty-two-a of this code; and
          (iii) Mine inspectors' examining board provided for in article nine, chapter twenty-two-a of this code;
          (C) The West Virginia development office provided for in article two, chapter five-b of this code, which includes:
          (i) Economic development authority provided for in article fifteen, chapter thirty-one of this code; and
          (ii) Tourism commission provided for in article two, chapter five-b of this code and the office of the tourism commissioner;
          (D) Division of natural resources and natural resources commission provided for in article one, chapter twenty of this code. The Blennerhassett historical state park provided for in article eight, chapter twenty-nine of this code is under the division of natural resources;
          (E) Division of forestry provided for in article one-a, chapter nineteen of this code;
          (F) Geological and economic survey provided for in article two, chapter twenty-nine of this code;
          (G) Water development authority and board provided for in article one, chapter twenty-two-c of this code;
          (2) Bureau of employment programs provided for in article one, chapter twenty-one-a of this code; and
__________(3) Workers' compensation commission provided for in article one, chapter twenty-three of this code.
          (c) Bureau of environment is abolished and the following agencies and boards, including all allied, advisory and affiliated entities, are transferred to the department of environmental protection for purposes of administrative support and liaison with the office of the governor:
          (1) Air quality board provided for in article two, chapter twenty-two-b of this code;
          (2) Solid waste management board provided for in article three, chapter twenty-two-c of this code;
          (3) Environmental quality board, or its successor board, provided for in article three, chapter twenty-two-b of this code;
          (4) Surface mine board provided for in article four, chapter twenty-two-b of this code;
          (5) Oil and gas inspectors' examining board provided for in article seven, chapter twenty- two-c of this code;
          (6) Shallow gas well review board provided for in article eight, chapter twenty-two-c of this code; and
          (7) Oil and gas conservation commission provided for in article nine, chapter twenty-two-c of this code.
          (d) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of education and the arts:
          (1) Library commission provided for in article one, chapter ten of this code;
          (2) Educational broadcasting authority provided for in article five, chapter ten of this code;
          (3) Joint commission for vocational-technical-occupational education provided for in article three-a, chapter eighteen-b of this code;
          (4) Division of culture and history provided for in article one, chapter twenty-nine of this code; and
          (5) Division of rehabilitation services provided for in section two, article ten-a, chapter eighteen of this code.
          (e) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of health and human resources:
          (1) Human rights commission provided for in article eleven, chapter five of this code;
          (2) Division of human services provided for in article two, chapter nine of this code;
          (3) Bureau for public health provided for in article one, chapter sixteen of this code;
          (4) Office of emergency medical services and advisory council thereto provided for in article four-c, chapter sixteen of this code;
          (5) Health care cost review authority provided for in article twenty-nine-b, chapter sixteen of this code;
          (6) Commission on mental retardation provided for in article fifteen, chapter twenty-nine of this code;
          (7) Women's commission provided for in article twenty, chapter twenty-nine of this code; and
          (8) The child support enforcement division provided for in chapter forty-eight of this code.
          (f) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of military affairs and public safety:
          (1) Adjutant general's department provided for in article one-a, chapter fifteen of this code;
          (2) Armory board provided for in article six, chapter fifteen of this code;
          (3) Military awards board provided for in article one-g, chapter fifteen of this code;
          (4) West Virginia state police provided for in article two, chapter fifteen of this code;
          (5) Office of emergency services and disaster recovery board provided for in article five, chapter fifteen of this code and emergency response commission provided for in article five-a of said chapter;
          (6) Sheriffs' bureau provided for in article eight, chapter fifteen of this code;
          (7) Division of corrections provided for in chapter twenty-five of this code;
          (8) Fire commission provided for in article three, chapter twenty-nine of this code;
          (9) Regional jail and correctional facility authority provided for in article twenty, chapter thirty-one of this code;
          (10) Board of probation and parole provided for in article twelve, chapter sixty-two of this code; and
          (11) Division of veterans' affairs and veterans' council provided for in article one, chapter nine-a of this code.
          (g) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of tax and revenue:
          (1) Tax division provided for in article one, chapter eleven of this code;
          (2) Racing commission provided for in article twenty-three, chapter nineteen of this code;
          (3) Lottery commission and position of lottery director provided for in article twenty-two, chapter twenty-nine of this code;
          (4) Agency of insurance commissioner provided for in article two, chapter thirty-three of this code;
          (5) Office of alcohol beverage control commissioner provided for in article sixteen, chapter eleven of this code and article two, chapter sixty of this code;
          (6) Board of banking and financial institutions provided for in article three, chapter thirty- one-a of this code;
          (7) Lending and credit rate board provided for in chapter forty-seven-a of this code; and
          (8) Division of banking provided for in article two, chapter thirty-one-a of this code.
          (h) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are transferred to and incorporated in and administered as a part of the department of transportation:
          (1) Division of highways provided for in article two-a, chapter seventeen of this code;
          (2) Parkways, economic development and tourism authority provided for in article sixteen-a, chapter seventeen of this code;
          (3) Division of motor vehicles provided for in article two, chapter seventeen-a of this code;
          (4) Driver's licensing advisory board provided for in article two, chapter seventeen-b of this code;
          (5) Aeronautics commission provided for in article two-a, chapter twenty-nine of this code;
          (6) State rail authority provided for in article eighteen, chapter twenty-nine of this code; and
          (7) Port authority provided for in article sixteen-b, chapter seventeen of this code.
          (i) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence of the position of administrator and of the agency and the powers, authority and duties of each administrator and agency are not affected by the enactment of this chapter.
          (j) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of section two of this article, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of ~~such~~ the boards are not affected by the enactment of this chapter and all boards which are appellate bodies or were otherwise established to be independent decisionmakers will not have their appellate or independent decision-making status affected by the enactment of this chapter.
          (k) Any department previously transferred to and incorporated in a department created in section two, article one of this chapter by prior enactment of this section in chapter three, acts of the Legislature, first extraordinary session, one thousand nine hundred eighty-nine, and subsequent amendments, means a division of the appropriate department. Wherever reference is made to any department transferred to and incorporated in a department created in section two, article one of this chapter, the reference means a division of the appropriate department, and any reference to a division of a department so transferred and incorporated means a section of the appropriate division of the department.
          (l) When an agency, board or commission is transferred under a bureau or agency other than a department headed by a secretary pursuant to this section, that transfer is solely for purposes of administrative support and liaison with the office of the governor, a department secretary or a bureau. The bureaus created by the Legislature upon the abolishment of the department of commerce, labor and environmental resources in the year one thousand nine hundred ninety-four will be headed by a commissioner or other statutory officer of an agency within that bureau. Nothing in this section extends the powers of department secretaries under section two of this article to any person other than a department secretary and nothing limits or abridges the statutory powers and duties of statutory commissioners or officers pursuant to this code.

CHAPTER 11. TAXATION.

ARTICLE 12. BUSINESS REGISTRATION TAX.

§11-12-7. Display of registration certificate; injunction; public information, reciprocal exchange of information.

          Any person to whom a certificate of registration ~~shall be~~ has been issued under the provisions of section four of this article shall keep ~~such~~ the certificate posted in a conspicuous position in the place where the privilege of ~~such~~ the business is exercised. ~~Such~~ The certificate of registration shall be produced for inspection whenever required by the tax commissioner or by any law-enforcement officers of this state, county or municipality ~~wherein~~ in which the privileges to conduct business are exercised.
          No injunction shall issue from any court in the state enjoining the collection of any business registration certificate tax required ~~herein~~ in this section; and any person claiming that any business certificate is not due, for any reason, shall pay the ~~same~~ tax under protest and petition the tax commissioner for a refund in accordance with the provisions of section fourteen, article ten of this chapter.
          If any person engaging in or prosecuting any business, or trade, contrary to any other provisions of this article, whether without obtaining a business certificate therefor before commencing the same, or by continuing the same after the termination of the effective period of ~~any such~~ the business certificate, the circuit court, or the judge thereof in vacation, of the county in which ~~such~~ the violation occurred shall, upon proper application in the name of the state, and after ten days' written notice thereof to such person, grant an injunction prohibiting ~~such~~ that person from continuing ~~such~~ the business, activity or trade until he or she has fully complied with the provisions of this article. The remedy provided in this section ~~shall be~~ is in addition to all other penalties and remedies provided by law.
          The tax commissioner shall make available, when requested, information as to whether a person is registered to do business in the state of West Virginia.
          The tax commissioner shall deliver to the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission the information contained in the business franchise registration certificate when this information is used to implement and administer a single point of registration program for persons engaging in any business activity in the state of West Virginia. The single point of registration program shall provide that, once an individual has received a business franchise registration certificate, the tax commissioner shall notify the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission of the names, addresses and other identifying information of that individual or entity. Upon receiving this information the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission shall contact all businesses receiving a business franchise registration certificate and provide all necessary forms and paperwork to register a business within the bureau and commission; pursuant to subsection (b), section six-b, article two, chapter twenty-one-a of this code and subsection (c), section two, article two, chapter twenty-three of this code.
          Notwithstanding the provisions of section five, article ten of this chapter, the tax commissioner may enter into a reciprocal agreement with the governor's office of community and industrial development and other departments or agencies of this state for the exchange of information contained in the application for a business franchise registration certificate filed under section four of this article when the purpose for the exchange is to implement and administer a single-point of registration program for persons engaging in business in this state. ~~Such~~ The other departments and agencies ~~shall have authority to~~ may enter into a reciprocal exchange agreement for this purpose notwithstanding any provision of this code to the contrary.
CHAPTER 12. PUBLIC MONEYS AND SECURITIES.
ARTICLE 1A. WEST VIRGINIA SMALL BUSINESS LINKED DEPOSIT PROGRAM.

§12-1A-4. Applications for loan priority; loan package; counseling.

          (a) An eligible lending institution that desires to participate in the linked deposit program shall accept and review loan applications from eligible small businesses that have been prepared with the advice of the small business development center. The lending institution shall apply all usual lending standards to determine the credit worthiness of each eligible small business and whether the loan application meets the criteria established in this article.
          (b) An eligible small business shall certify on its loan application that: (1) The small business is in good standing with the state tax division, the workers' compensation commission and the bureau of employment programs as of the date of the application; (2) the linked deposit loan will be used to create new jobs or preserve existing jobs and employment opportunities; and (3) the linked deposit loan shall not be used to refinance an existing debt.
          (c) In considering which eligible small businesses should receive linked deposit loans, the eligible lending institution shall give priority to the economic needs of the area in which the business is located, the number of jobs to be created and preserved by the receipt of the loan, the reasonable ability of the small business to repay the loan and other factors considered appropriate by the eligible financial institution.
          (d) A small business receiving a linked deposit loan shall receive supervision and counseling provided by the small business development center when applying for the loan. The services available from the small business development center include eligibility certification, business planning, quarterly financial statement review and loan application assistance. The state tax division and the bureau of employment programs and worker's compensation commission shall provide the small business development center with information as to the standing of each small business loan applicant. The small business development center shall include these certifications with the loan application.
          (e) The eligible financial institution shall forward to the treasurer a linked deposit loan package in the form and manner prescribed by the treasurer. The treasurer shall forward notice of approval of the loan to the small business development center at the same time it is furnished to the eligible financial institution.
ARTICLE 6. WEST VIRGINIA INVESTMENT MANAGEMENT BOARD.

§12-6-6. Annual audits; reports and information to constitutional and legislative officers, council of finance and administration, consolidated public retirement board, workers' compensation fund and coal-workers' pneumoconiosis fund; statements and reports open for inspection.

          (a) The board shall cause an annual financial and compliance audit of the assets managed by the board to be made by a certified public accounting firm which has a minimum staff of ten certified public accountants and which is a member of the American institute of certified public accountants and, if doing business in West Virginia, a member of the West Virginia society of certified public accountants. The financial and compliance audit shall be made of the board's books, accounts and records with respect to its receipts, disbursements, investments, contracts and all other matters relating to its financial operations. Copies of the audit report shall be furnished to the governor, state treasurer, state auditor, president of the Senate, speaker of the House of Delegates, council of finance and administration and consolidated public retirement board.
          (b) The board shall produce monthly financial statements for the assets managed by the board and cause them to be delivered to each member of the board and the executive secretary of the consolidated public retirement board as established in sections one and two, article ten-d, chapter five of this code and to the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission as administrator of the workers' compensation fund and coal-workers' pneumoconiosis fund as established in section ~~one~~ one-b, article one, chapter twenty-three of this code and section one, article three of said chapter and section seven, article four- b of said chapter.
          (c) The board shall deliver in each quarter to the council of finance and administration and the consolidated public retirement board a report detailing the investment performance of the 401(a) plans.
          (d) The board shall cause an annual audit of the reported returns of the assets managed by the board to be made by an investment consulting or a certified public accounting firm meeting the criteria set out in subsection (a) of this section. The board shall furnish copies of the audit report to the governor, state treasurer, state auditor, president of the Senate, speaker of the House of Delegates, council of finance and administration and consolidated public retirement board.
          (e) The board shall provide any other information requested in writing by the council of finance and administration.
          (f) All statements and reports with respect to participant plans required in this section shall be available for inspection by the members and beneficiaries and designated representatives of the participant plans.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2. WEST VIRGINIA STATE POLICE.

§15-2-10. Uniforms; authorized equipment, weapons and supplies; local headquarters; quarters for members; life insurance; medical and hospital fees for injuries and illnesses of members incurred in line of duty.

          (a) The standard uniform to be used by the West Virginia state police after the effective date of this article shall be as follows: Forestry green blouse with West Virginia state police emblem on sleeve; black shoulder strap, one-inch black stripe around sleeve, four inches from end of sleeve; forestry green breeches with one-inch black stripe down the side; trousers (slacks) with one-inch black stripe down the side for officers and clerks regularly enlisted in the state police; forestry green shirts with West Virginia state police emblem on sleeve; black shoulder straps; forestry green mackinaw with West Virginia state police emblem on sleeve; black shoulder straps; one-inch black stripe around sleeve four inches from end of sleeve; campaign hat of olive drab color; black Sam Browne belt with holster; black leggings and shoes; the officer's uniform will have one and one-quarter inch black stripe around the sleeve of blouse and mackinaw four inches from end of sleeve circumposed with one-half inch gold braid, also black collars on blouse, with two silver shoulder bars for captains, one silver shoulder bar for first lieutenant, one gold shoulder bar for second lieutenant. For noncommissioned officers the uniform blouse and shirt will have thereon black chevrons of the appropriate rank.
          (b) The superintendent shall establish the weapons and enforcement equipment which ~~shall be~~ are authorized for use by members of the state police and shall provide for periodic inspection of ~~such~~ the weapons and equipment. He or she shall provide for the discipline of members using other than authorized weapons and enforcement equipment.
          (c) The superintendent shall provide the members of the state police with suitable arms and weapons and, when he ~~deems~~ or she considers it necessary, with suitably equipped automobiles, motorcycles, watercraft, airplanes and other means of conveyance to be used by the West Virginia state police, the governor, and other officers and executives in the discretion of the governor, in times of flood, disaster and other emergencies, for traffic study and control, criminal and safety work, and in other matters of official business. He or she shall also provide the standard uniforms for all members of the state police, for officers, noncommissioned officers and troopers ~~herein~~ provided for in this section. All uniforms and all arms, weapons and other property furnished the members of the state police by the state of West Virginia ~~shall be~~ we and remain the property of the state.
          (d) The superintendent ~~is authorized to~~ may purchase and maintain on behalf of members group life insurance not to exceed the amount of five thousand dollars on behalf of each member.
          (e) The superintendent ~~is authorized to~~ may contract and furnish at state police expense medical and hospital services for treatment of illness or injury of a member which shall be determined by the superintendent to have been incurred by ~~such~~ the member while engaged in the performance of duty and from causes beyond control of ~~such~~ the members. Notwithstanding any other provision of this code, the superintendent ~~shall have~~ has the right of subrogation in any civil action or settlement brought by or on behalf of a member in relation to any act by another which results in the illness, injury or death of a member. To this end, the superintendent ~~is hereby authorized to~~ may initiate ~~such~~ an action on behalf of the state police in order to recover the costs incurred in providing medical and hospital services for the treatment of a member resulting from injury or illness originating in the performance of official duties. This subsection shall not affect the power of a court to apply ordinary equitable defenses to the right of subrogation.
          The superintendent ~~is further empowered to~~ may also consult with the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission in an effort to defray the cost of medical and hospital services. In no case will the compensation rendered to health care providers for medical and hospital services exceed the then current rate schedule in use by the ~~bureau of employment programs, workers' compensation division~~ workers' compensation commission.
          Third-party reimbursements received by the superintendent after the expiration of the fiscal year in which the injury, illness or death occurred will be deposited to a nonexpiring special revenue account. Funds deposited to this account may be used solely for defraying the costs of medical or hospital services rendered to any sworn members as a direct result of an illness, injury or death resulting from the performance of official duties.
          (f) The superintendent shall establish and maintain local headquarters at ~~such~~ those places in West Virginia as that are in his or her judgment suitable and proper to render the West Virginia state police most efficient for the purpose of preserving the peace, protecting property, preventing crime, apprehending criminals and carrying into effect all other provisions of this article. The superintendent shall provide, by acquisition, lease or otherwise, for local headquarters, for housing and quarters for the accommodation of the members of the West Virginia state police, and for any other facilities necessary or useful for the effective operation of the West Virginia state police and shall provide all equipment and supplies necessary for the members of the West Virginia state police to perform their duties.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.

§16-1-15. Investigations and hearings; power to administer oaths, subpoena witnesses, etc.; use of information and material acquired.

          (a) The secretary, the commissioner, any officer or employee of the department designated by the secretary, or any other individual designated by the secretary may hold investigations, inquiries and hearings concerning matters covered by the laws of this state pertaining to public health and within the authority and the rules and orders of the secretary. Hearings shall be open to the public and shall be held upon any call or notice considered advisable by the secretary.
          (b) Each individual designated to hold any inquiry, investigation or hearing ~~shall have the power to~~ may administer oaths and affirmations, certify to all official acts, issue subpoenas and order the attendance and testimony of witnesses in the production of papers, books and documents. In case of the failure of any person to comply with any subpoena or order issued under the authority of this section, the secretary or his or her authorized representative may invoke the aid of any circuit court of this state. The court may thereupon order that person to comply with the requirements of the subpoena order or to give evidence as to the matter in question. Failure to obey the order of the court may be punished by the court as a contempt of court.
          (c) Subject to the provisions of subsections (a) and (b) of this section, the secretary may in his or her discretion make available to appropriate federal, state and municipal agencies information and material developed in the course of its investigation and hearings: Provided, That information obtained from studies or from any investigation made or hearing held pursuant to the provisions of this article may not be admissible in evidence in any action at law to recover damages for personal injury or in any action under the workers' compensation act, but the information, if available, shall be furnished upon request to the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission for the sole purpose of adjusting claims presented to the ~~commissioner~~ commission.

ARTICLE 29D. STATE HEALTH CARE.

§16-29D-3. Agencies to cooperate and to provide plan; contents of plan; reports to Legislature; late payments by state agencies and interest thereon.

          (a) All departments and divisions of the state, including, but not limited to, the bureau of employment programs, the division of health and the division of human services within the department of health and human resources; the public employees insurance agency within the department of administration; the division of rehabilitation services; the workers' compensation commission; or ~~such~~ the other department or division as shall supervise or provide rehabilitation; and the university of West Virginia board of trustees, as the governing board for the state's medical schools, are authorized and directed to cooperate in order, among other things, to ensure the quality of the health care services delivered to the beneficiaries of ~~such~~ the departments and divisions and to ensure the containment of costs in the payment for ~~such~~ services.
          (b) It is expressly recognized that no other entity may interfere with the discretion and judgment given to the single state agency which administers the state's medicaid program. Thus, it is the intention of the Legislature that nothing contained in this article shall be interpreted, construed or applied to interfere with the powers and actions of the single state agency which, in keeping with applicable federal law, shall administer the state's medicaid program as it perceives to be in the best interest of that program and its beneficiaries.
          (c) ~~Such~~ The departments and divisions shall develop a plan or plans to ensure that a reasonable and appropriate level of health care is provided to the beneficiaries of the various programs including the public employees insurance agency and the workers' compensation fund, the division of rehabilitation services and, to the extent permissible, the state medicaid program. The plan or plans may include, among other things, and the departments and divisions are ~~hereby authorized to~~ may enter into:
          (1) Utilization review and quality assurance programs;
          (2) The establishment of a schedule or schedules of the maximum reasonable amounts to be paid to health care providers for the delivery of health care services covered by the plan or plans. ~~Such a~~ The schedule or schedules may be either prospective in nature or cost reimbursement in nature, or a mixture of both: Provided, That any payment methods or schedules for institutions which provide inpatient care shall be institution-specific and shall, at a minimum, take into account a disproportionate share of medicaid, charity care and medical education: Provided, however, That in no event may any rate set in this article for an institutional health care provider be greater than ~~such~~ the institution's current rate established and approved by the health care cost review authority pursuant to article twenty-nine-b of this chapter;
          (3) Provisions for making payments in advance of the receipt of health care services by a beneficiary, or in advance of the receipt of specific charges for ~~such~~ the services, or both;
          (4) Provisions for the receipt or payment of charges by electronic transfers;
          (5) Arrangements, including contracts, with preferred provider organizations; and
          (6) Arrangements, including contracts, with particular health care providers to deliver health care services to the beneficiaries of the programs of the departments and divisions at agreed-upon rates in exchange for controlled access to the beneficiary populations.
          (d) The director of the public employees insurance agency shall contract with an independent actuarial company for a review every four years of the claims experience of all governmental entities whose employees participate in the public employees insurance agency program, including, but not limited to, all branches of state government, all state departments or agencies (including those receiving funds from the federal government or a federal agency), all county and municipal governments or any other similar entities for the purpose of determining the cost of providing coverage under the program, including administrative cost, to each ~~such~~ governmental entity.
          (e) Nothing in this section shall be construed to give or reserve to the Legislature any further or greater power or jurisdiction over the operations or programs of the various departments and divisions affected by this article than that already possessed by the Legislature in the absence of this article.
          (f) For the purchase of health care or health care services by a health care provider participating in a plan under this section on or after the first day of September, one thousand nine hundred eighty-nine, by the public employees insurance agency, the division of rehabilitation services and the ~~division of workers' compensation~~ workers' compensation commission, a state check shall be issued in payment thereof within sixty-five days after a legitimate uncontested invoice is actually received by ~~such~~ the division, commission or agency. Any state check issued after sixty-five days shall include interest at the current rate, as determined by the state tax commissioner under the provisions of section seventeen-a, article ten, chapter eleven of this code, ~~which~~ the interest shall be calculated from the sixty-sixth day after ~~such~~ the invoice was actually received by the ~~division~~
commission or agency until the date on which the state check is mailed to the vendor.
ARTICLE 36. NEEDLESTICK INJURY PREVENTION.
§16-36-3. Needlestick injury prevention advisory committee.
          (a) There is established a needlestick injury prevention advisory committee to advise the director in the development of rules required under this article.
          (b) The committee shall meet at least four times a year for the initial two years after the effective date of this article and on the call of the director thereafter. The director shall serve as the chair and shall appoint thirteen members, one representing each of the following groups:
          (1) A representative of the health insurance industry;
          (2) The ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission, or his or her designee from the ~~division of workers' compensation~~;
          (3) Five nurses who work primarily providing direct patient care in a hospital or nursing home, at least one of which is employed in a state-operated facility;
          (4) A phlebotomist employed in a hospital or nursing home;
          (5) Two administrators of different hospitals operating within the state;
          (6) A director of nursing employed in a nursing home within the state;
          (7) A licensed physician practicing in the state; and
          (8) An administrator of a nursing home operating within the state.
          (c) Members of the committee serve without compensation. Each member shall be reimbursed for actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of official duties, in a manner consistent with guidelines of the travel management office of the department of administration.
          (d) A majority of all members constitutes a quorum for the transaction of all business. Members serve for two-year terms and may not serve for more than two consecutive terms.
CHAPTER 18. EDUCATION.

ARTICLE 9A. PUBLIC SCHOOL SUPPORT.

§18-9A-26. Allowance for workers' compensation for unpaid student work-based learning.

          (a) The workers' compensation ~~division~~ commission shall create a classification and calculate a base premium tax rate for students participating in an unpaid work-based learning experience off school premises as a part of the school curriculum with employers other than the county board of education. The workers' compensation ~~division~~ commission shall report to the state department of education:
          (1) The amount of the base premium tax rate for the class; and
          (2) The amount of wages per student to be used to provide the minimum weekly benefits required by section six, article four, chapter twenty-three of this code.
          (b) The state department of education shall communicate the amount of the premium to the governor and Legislature by the first day of December of each year~~, beginning the first day of December, one thousand nine hundred ninety-nine~~.
          (c) The base premium tax rate reported to the state department of education shall be that which was published by the workers' compensation ~~division~~ commission prior to the first day of the immediately preceding July. ~~That premium tax rate, however, shall not be implemented by the workers' compensation division until the first day of January and shall remain in effect through the last day of the next December.~~ The workers' compensation ~~division~~ commission shall make no merit rate adjustment, as otherwise provided for in paragraph (A), subdivision (1), subsection (a), section four, article two, chapter twenty-three of this code, for the members of the class required to be created by subsection (a) of this section.
          (d) Notwithstanding anything to the contrary in any rules adopted to implement the provisions of section four, article two, chapter twenty-three of this code and for the sole purposes of this section, the workers' compensation ~~division~~ commission shall permit any county board of education affected by this section to be classified in accordance with this section and to be also classified as otherwise required by any rules adopted to implement the provisions of section four, article two, chapter twenty-three of this code.
          (e) Subject to an appropriation by the Legislature, funds shall be provided to the department of education to distribute to the county boards. If the appropriation is less than the total premium calculated, the county boards, individually, shall either reduce the number of students participating in work-based learning experiences off school premises or the county boards shall pay the difference between the amount of the premium calculated by the workers' compensation ~~division~~ commission and the amount allocated to the county board by the department of education.
ARTICLE 10A. REHABILITATION SERVICES.

§18-10A-12a. Workers' compensation for clients participating in unpaid work-based training programs.

          (a) The workers' compensation ~~division~~ commission shall create a classification and calculate a base premium tax rate for clients of the division of rehabilitation services participating in unpaid work-based training programs within integrated community-based settings. The workers' compensation ~~division~~ commission shall report to the division of rehabilitation services:
          (1) The amount of the base premium tax rate for the class; and
          (2) The hourly wages per client to be used to provide the minimum weekly benefits required by section six, article four, chapter twenty-three of this code.
          (b) The base premium tax rate reported annually to the division of rehabilitation services by the workers' compensation ~~division~~ commission shall not be effective until the first day of July and shall remain in effect through the last day of the next June.
          (c) The division of rehabilitation services and the participating entity shall be considered the joint employers of record of the clients while the clients are participating in unpaid work-based training programs in integrated community-based settings: Provided, That the participating entity shall not be held responsible for any liability due the workers' compensation ~~division~~ commission. ~~Such~~ The clients shall be considered to be paid the amount of wages sufficient to provide the minimum workers' compensation weekly benefits required by section six, article four, chapter twenty-three of this code.
ARTICLE 10K. WEST VIRGINIA TRAUMATIC BRAIN AND SPINAL CORD INJURY REHABILITATION FUND ACT.

§18-10K-2. Board created, membership, terms, officers and staff.
          (a) There is hereby established the West Virginia traumatic brain and spinal cord injury rehabilitation fund board.
          (b) The board shall consist of twenty-three members. The members shall include:
          (1) The secretary of the department of education and the arts, ex officio, or his or her designee;
          (2) The secretary of health and human resources, ex officio, or his or her designee;
          (3) The state superintendent of schools, ex officio, or his or her designee;
          (4) The secretary of the department of military affairs and public safety, ex officio, or his or her designee;
          (5) The director of the bureau of behavioral health within the department of health and human resources, ex officio, or his or her designee;
          (6) The director of the division of rehabilitation services, ex officio, or his or her designee;
          (7) The director of the bureau of medical services, ex officio, or his or her designee;
          (8) The director of the office of emergency services, ex officio, or his or her designee;
          (9) The ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission, ex officio, or his or her designee;
          (10) Seven members appointed by the governor to represent public and private health organizations or other disability coalitions or advisory groups; and
          (11) Seven members appointed by the governor who are either survivors of traumatic brain or spinal cord injury or family members of persons with traumatic brain or spinal cord injury.
          (c) The citizen members shall be appointed by the governor for terms of three years, except that of the members first appointed, two of the representatives of public and nonprofit private health organizations, disability coalitions or advisory groups and two of the representatives of survivors or family members of persons with traumatic brain or spinal cord injuries shall serve for terms of one year, two of the representatives of each of those respective groups shall serve for terms of two years, and the remaining three representatives of each of those respective groups shall serve for terms of three years. All subsequent appointments shall be for three years. Members shall serve until the expiration of the term for which they have been appointed or until their successors have been appointed and qualified. In the event of a vacancy, the governor shall appoint a qualified person to serve for the unexpired term. No member may serve more than two consecutive three-year terms. State officers or employees may be appointed to the board unless otherwise prohibited by law.
          (d) In the event a board member fails to attend more than twenty-five percent of the scheduled meetings in a twelve-month period, the board may, after written notification to that member and the secretary of education and the arts, request in writing that the governor remove the member and appoint a new member to serve his or her unexpired term.
          (e) The board shall elect from its membership a chairperson, treasurer and secretary as well as any other officer as appropriate. The term of the chairperson is for two years in duration and he or she cannot serve more than two consecutive terms.
CHAPTER 21. LABOR.

ARTICLE 3A. OCCUPATIONAL SAFETY AND HEALTH ACT.

§21-3A-3. Division of occupational safety and health; coordination of activities with workers' compensation commissioner.

          (a) There is ~~hereby created~~ continued in the labor department a division of occupational safety and health comprised of a subdivision for safety, a subdivision for health and ~~such~~ the other subdivisions as the commissioner considers necessary. This division shall administer all matters pertaining to occupational safety and occupational health.
          (b) The labor commissioner may require the assistance of other state agencies and may enter into agreements with other state agencies and political subdivisions of the state for the administration of this chapter.
          (c) The labor commissioner shall provide for coordination between the division of occupational safety and health and the workers' compensation ~~commissioner~~ commission including, but not limited to, the establishment of standardized procedures and reportings.
CHAPTER 21A. UNEMPLOYMENT COMPENSATION.
ARTICLE 1. UNEMPLOYMENT COMPENSATION.

§21A-1-4. Bureau of employment programs created; division; 'bureau' defined.

          There is ~~created~~ continued an agency designated as the bureau of employment programs, composed of a division of unemployment compensation, a division of employment service, a division of job training programs ~~a division of workers' compensation,~~ and ~~such~~ any other divisions or units as that the commissioner determines ~~to be~~ are necessary.
          Wherever within this chapter~~, or in chapter twenty-three of this code,~~ the term 'department', 'bureau' or 'fund' ~~or 'workers' compensation fund'~~ is used, it shall be taken to mean bureau of employment programs unless otherwise indicated.
          Notwithstanding the provisions of subdivisions (11) and (12), subsection (d), section one, article two, chapter five-f of this code, the division of employment security ~~and the division of workers' compensation programs are hereby consolidated in an agency~~ is designated as the bureau of employment programs. ~~which the~~ The bureau shall be administered ~~as part of the department of commerce, labor and environmental resources created~~ pursuant to subsection (b)of said section.

ARTICLE 2. THE COMMISSIONER OF THE BUREAU OF EMPLOYMENT PROGRAMS.

§21A-2-6. Powers and duties generally.
          The commissioner is the executive and administrative head of the bureau and has the power and duty to:
          (1) Exercise general supervision of for the governance of the bureau and ~~make~~ propose rules for ~~the government of the bureau~~ promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the requirements of this chapter;
          (2) Prescribe uniform rules pertaining to investigations, departmental hearings and promulgate rules;
          (3) Supervise fiscal affairs and responsibilities of the bureau;
          (4) Prescribe the qualifications of, appoint, remove and fix the compensation of the officers and employees of the bureau, subject to the provisions of section ten, article four of this chapter, relating to the board of review;
          (5) Organize and administer the bureau so as to comply with the requirements of this chapter ~~and chapter twenty-three of this code~~ and to satisfy any conditions established in applicable federal ~~legislation~~ law or regulation;
          (6) Make reports in ~~such~~ the form and containing ~~such~~ information as required by the United States department of labor ~~may, from time to time, require~~ and comply with ~~such provisions as~~ any requirements that the United States department of labor ~~may, from time to time, find~~ finds necessary to assure the correctness and verification of ~~such~~ the reports;
          (7) Make available to any agency of the United States charged with the administration of public works or assistance through public employment, upon its request, the name, address, ordinary occupation and employment status of each recipient of unemployment compensation, and a statement of the recipient's rights to further compensation under this chapter;
          (8) Keep an accurate and complete record of all bureau proceedings, record and file all bonds and contracts and assume responsibility for the custody and preservation of all papers and documents of the bureau;
          (9) Sign and execute in the name of the state, by 'The Bureau of Employment Programs', any contract or agreement with the federal government, its agencies, other states, their subdivisions or private persons;
          (10) Prescribe a salary scale to govern compensation of appointees and employees of the bureau;
          (11) Make the original determination of right in claims for benefits;
          (12) Make recommendations and an annual report to the governor concerning the condition, operation and functioning of the bureau;
          (13) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter ~~and chapter twenty-three of this code~~;
          (14) Exercise any other power necessary to standardize administration, expedite bureau business, assure the establishment of fair rules and promote the efficiency of the service;
          (15) Keep an accurate and complete record and prepare a monthly report of the number of persons employed and unemployed in the state. ~~which~~ The report shall be made available upon request to members of the public and press;
          (16) Provide at bureau expense a program of continuing professional, technical and specialized instruction for the personnel of the bureau;
          (17) In addition to the authority granted to the commissioner by section eighteen of this article and notwithstanding anything to the contrary elsewhere in this code, utilize any attorney regularly employed by the bureau or the office of the attorney general to represent the commissioner, the bureau or any of its divisions in any matter. In addition, the commissioner, with the approval of the compensation programs performance council, is authorized to retain counsel for any purpose in the administration of this chapter or in the administration of chapter twenty-three of this code relating to the collection of any amounts due from employers to the bureau or any of its divisions. The compensation programs performance council shall solicit proposals from counsel who are interested in representing the commissioner, the bureau or any of its divisions under the terms of this subdivision. Thereafter, the compensation programs performance council shall select such attorneys as it determines necessary to pursue the collection objectives of this subdivision.
          (A) Payment to any such retained counsel may either be by hourly or other fixed fee, or as determined by the court or administrative law judge as provided for below. A contingency fee payable from the amount recovered by judgment or settlement for the commissioner, the bureau or any of its divisions is only permitted, to the extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so that a full recovery plus attorneys' fees is not possible.
          (B) In the event that any collections action, other than a collections action against a claimant, initiated either by retained counsel or other counsel on behalf of the commissioner, the bureau or any of its divisions results in a judgment or settlement in favor of the commissioner, the bureau or any of its divisions, then the court or, if there was no judicial component to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall be paid by the defendants or respondents to the retained or other counsel representing the commissioner, the bureau or any of its divisions. If the court is to determine the amount of attorneys' fees, it shall include in its determination the amount of fee that should be paid for the representation of the commissioner, the bureau or its divisions in pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by the court or the administrative law judge in an amount no less than twenty percent of its recovery. Any additional amount of attorneys' fees shall be determined by use of the following factors:
          (i) The counsel's normal hourly rate or, if the counsel is an employee of the bureau or is an employee of the office of the attorney general, such hourly rate as the court or the administrative law judge shall determine to be customary based upon the attorney's experience and skill level;
          ~~(ii) The number of hours actually expended on the action;~~
          ~~(iii) The complexity of the issues involved in the action;~~
          ~~(iv) The degree of risk involved in the case with regard to the probability of success or failure;~~
          ~~(v) The overhead costs incurred by counsel with regard to the use of paralegals and other office staff, experts, and investigators; and~~
          ~~(vi) The public purpose served or public objective achieved by the attorney in obtaining the judgment or settlement on behalf of the commissioner, the bureau or any of its divisions.~~
          (C) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commissioner, bureau or any of its divisions and the defendants or respondents to any administrative or judicial action settle the action, then the parties may negotiate a separate settlement of attorneys' fees to be paid by the defendants or respondents above and beyond the amount recovered by the commissioner, the bureau or any its divisions. In the event that such a settlement of attorneys' fees is made, it must be submitted to the court or administrative law judge for approval.
          (D) Any attorney regularly employed by the bureau or by the office of the attorney general may not receive any remuneration for his or her services other than such attorney's regular salary. Any attorneys' fees awarded for such an employed attorney shall be payable to the commissioner;
          ~~(18)~~ (17) ~~With the approval of the compensation programs performance council created pursuant to section one, article three of this chapter, to~~ ~~promulgate~~ Promulgate rules under which agencies of this state shall not grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit whose account is in default with the commissioner with regard to the administration of this chapter ~~and with regard to the administration of chapter twenty-three of this code~~. The term 'agency' includes any unit of state government such as officers, agencies, divisions, departments, boards, commissions, authorities or public corporations. An employing unit is not in default if it has entered into a repayment ~~agreements~~ agreement with the ~~appropriate divisions~~ unemployment compensation division of the bureau and remains in compliance with its obligations under the repayment ~~agreements~~ agreement.
          The rules shall provide that, before granting, issuing or renewing any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit, the designated agencies shall review a list or lists provided by the ~~appropriate divisions of the~~ bureau of employers that are in default. If the employing unit's name is not on the list, the agency, unless it has actual knowledge that the employing unit is in default with ~~a division of~~ the bureau may grant, issue or renew the contract, license, permit, certificate or other authority to conduct a trade, profession or business. The list may be provided to the agency in the form of a computerized database or databases that the agency can access. Any objections to ~~such~~ the refusal to issue or renew shall be reviewed under the appropriate provisions of this chapter ~~or of chapter twenty-three of this code, or both, whichever is applicable~~. The rules provided for by this subdivision shall be promulgated pursuant to the provisions of ~~subdivisions (b) and (c), section seven, article three of this chapter as if they were rules being promulgated for the purposes of chapter twenty-three of this code~~ article three, chapter twenty-nine-a of this code. The prohibition against granting, issuing or renewing any contract, license, permit, certificate or other authority under this subdivision ~~are not operative~~ shall continue in full force and effect until the revised rules are promulgated and are in effect~~, except as provided in subdivision (6), section eight, article three, chapter twenty-two or otherwise by law~~.
          The rules may be promulgated or implemented in phases so that specific agencies or specific types of contracts, licenses, permits, certificates or other authority to conduct trades, professions or businesses will be subject to the rules beginning on different dates. The presumptions of ownership or control contained in the division of environmental protection's surface mining reclamation regulations promulgated under the provisions of article three, chapter twenty-two of this code are not applicable or controlling in determining the identity of employing units who are in default for the purposes of this subdivision. The rules shall also provide a procedure allowing any agency or interested person, after being covered under the rules for at least one year, to petition the ~~council~~ bureau of employment programs to be exempt from the provisions of the rules. Rules subjecting all applicable agencies and contracts, licenses, permits, certificates or other authority to conduct trades, professions or businesses to the requirements of this subdivision ~~shall be~~ that were promulgated ~~no later than~~ prior to the first day of ~~January~~ July, two thousand three, shall be revised and submitted for legislative review no later than the first day of January, two thousand four, to reflect the removal of the workers' compensation division from the bureau of employment programs and its replacement by the workers' compensation commission; ~~and~~
          ~~(19)~~ (18) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding any other provision of this code and to the extent allowed by federal law, all amounts of delinquent payments or overpayments, interest and penalties thereon, and attorneys' fees and costs collected under the provisions of this chapter ~~and chapter twenty-three of this code~~. The amounts collected shall not be treated by the auditor or treasurer as part of the general revenue of the state; and
__________(19) Enter into interagency agency agreements to assist in exchanging information and fulfilling the provisions of this article.
§21A-2-6c. Payment withholding and interception.
          (a) All state, county, district and municipal officers and agents making contracts on behalf of the state of West Virginia or any political subdivision thereof shall withhold payment in the final settlement of ~~such~~ contracts until the receipt of a certificate from the commissioner to the effect that all payments, interest and penalties thereon accrued against the contractor under this chapter ~~and under chapter twenty-three of this code~~ have been paid or that provisions satisfactory to the commissioner have been made for payment. Any official violating this subsection is guilty of a misdemeanor and, on conviction thereof, shall be fined not more than one thousand dollars or ~~county imprisoned~~ confined in a county or regional jail for not more than one year ~~in the jail~~, or both fined and ~~imprisoned~~ confined.
          (b) Any agency of the state, for the limited purpose of intercepting, pursuant to section sixteen, article five of this chapter and pursuant to section five-a, of article two, chapter twenty-three of this code, any payment by or through the state to an employer who is in default in payment of contributions, premiums, deposits, interest or penalties under the provisions of this chapter or of chapter twenty-three of this code, shall assist the commissioner in collecting the payment that is due. For this purpose, disclosure of joint delinquency and default lists of employers with respect to unemployment compensation and workers' compensation as provided in section one-c, article one, chapter twenty-three of this code contributions, premiums, interest, deposits or penalties is authorized. The bureau and the workers' compensation commission may enter into an interagency agreement to effectuate the provisions of this section. The lists may be in the form of a computerized database to be accessed by the auditor, the department of tax and revenue, the department of administration, the division of highways or any other appropriate state agency or officer.
§21A-2-13. Deputies.
          For the original determination of claims under this chapter ~~and chapter twenty-three of this code~~, the commissioner shall appoint a necessary number of deputies as his or her representatives.
ARTICLE 10. GENERAL PROVISIONS.           §21A-10-11. Reporting requirements and required information; use of information; libel and slander actions prohibited.
          (a) Each employer, including labor organizations as defined in subsection (i) of this section, shall, quarterly, submit certified reports on or before the last day of the month next following the calendar quarter, on forms to be prescribed by the commissioner. The reports shall contain:
          (1) The employer's assigned unemployment compensation registration number, the employer's name and the address at which the employer's payroll records are maintained;
          (2) Each employee's social security account number, name, and the gross wages paid to each employee, which shall include the first eight thousand dollars of remuneration and all amounts in excess of ~~such~~ that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter;
          (3) The total gross wages paid within the quarter for employment, which includes money wages and the cash value of other remuneration, and shall include the first eight thousand dollars of remuneration paid to each employee and all amounts in excess of ~~such~~ that amount, notwithstanding subdivision (1), subsection (b), section twenty-eight, article one-a of this chapter; and
          (4) Other information as that is reasonably connected with the administration of this chapter.
          (b) Information ~~thus~~ obtained may not be published or be open to public inspection ~~so as~~ to reveal the identity of the employing unit or the individual.
          (c) Notwithstanding the provisions of subsection (b) of this section, the commissioner may provide information ~~thus~~ obtained to the following governmental entities for purposes consistent with state and federal laws:
          (1) The United States department of agriculture;
          (2) The state agency responsible for enforcement of the medicaid program under Title XIX of the Social Security Act;
          (3) The United States department of health and human services or any state or federal program operating and approved under Title I, Title II, Title X, Title XIV or Title XVI of the Social Security Act;
          (4) Those agencies of state government responsible for economic and community development; secondary, post-secondary and vocational education; vocational rehabilitation, employment and training, including, but not limited to, the administration of the Perkins Act and the Job Training and Partnership Act;
          (5) The tax division, but only for the purposes of collection and enforcement;
          (6) The division of labor for purposes of enforcing the wage bond and the contractor licensing provisions of chapter twenty-one of this code;
          (7) Any agency of this or any other state, or any federal agency, charged with the administration of an unemployment compensation law or the maintenance of a system of public employment offices;
          (8) Any claimant for benefits or any other interested party to the extent necessary for the proper presentation or defense of a claim; and
          (9) The ~~division of~~ workers' compensation commission for purposes of collection and enforcement: Provided, That the ~~division of~~ workers' compensation commission shall provide similar information to the ~~other divisions of the~~ bureau of employment programs.
          (d) The agencies or organizations which receive information under subsection (c) of this section shall agree that the information shall remain confidential so as not to reveal the identity of the employing unit or the individual consistent with the provisions of this chapter.
          (e) The commissioner may, before furnishing any information permitted under this section, require that those who request the information shall reimburse the bureau of employment programs for any cost associated ~~therewith~~ for furnishing the information.
          (f) The commissioner may refuse to provide any information requested under this section if the agency or organization making the request does not certify that it will comply with the state and federal law protecting the confidentiality of the information.
          (g) A person who violates the confidentiality provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than two hundred dollars, or ~~imprisoned~~ confined in a county or regional jail not longer than ninety days, or both.
          (h) No action for slander or libel, either criminal or civil, shall be predicated upon information furnished by any employer or any employee to the commissioner in connection with the administration of any of the provisions of this chapter.
          (i) For purposes of subsection (a) of this section, the term 'labor organization' means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work. It includes any entity, also known as a hiring hall, which is used by the organization and an employer to carry out requirements described in 29 U. S. C. 158(f)(3) of an agreement between the organization and the employer.
CHAPTER 22. ENVIRONMENTAL RESOURCES.

ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.

§22-3-8. Prohibition of surface mining without a permit; permit requirements; successor in interest; duration of permits; proof of insurance; termination of permits; permit fees.

          No person may engage in surface-mining operations unless ~~such person~~ he or she has first obtained a permit from the director in accordance with the following:
          (1) All permits issued pursuant to the requirements of this article shall be issued for a term not to exceed five years: Provided, That if the applicant demonstrates that a specified longer term is reasonably needed to allow the applicant to obtain necessary financing for equipment and the opening of the operation, and if the application is full and complete for ~~such~~ the specified longer term, the director may extend a permit for ~~such~~ a longer term: Provided, however, That subject to the prior approval of the director, with ~~such~~ the approval being subject to the provisions of subsection (c), section eighteen of this article, a successor in interest to a permittee who applies for a new permit, or transfer of a permit, within thirty days of succeeding to ~~such~~ the interest, and who is able to obtain the bond coverage of the original permittee, may continue surface-mining and reclamation operations according to the approved mining and reclamation plan of the original permittee until ~~such~~ the successor's permit application or application for transfer is granted or denied.
          (2) Proof of insurance is required on an annual basis.
          (3) A permit terminates if the permittee has not commenced the surface-mining operations covered by ~~such~~ the permit within three years of the date the permit was issued: Provided, That the director may grant reasonable extensions of time upon a timely showing that ~~such~~ the extensions are necessary by reason of litigation precluding ~~such~~ commencement, or threatening substantial economic loss to the permittee, or by reason of conditions beyond the control and without the fault or negligence of the permittee: Provided, however, That with respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee shall be ~~deemed~~ considered to have commenced surface-mining operations at ~~such~~ the time as the construction of the synthetic fuel or generating facility is initiated.
          (4) Each application for a new surface-mining permit filed pursuant to this article shall be accompanied by a fee of one thousand dollars. All permit fees and renewal fees provided for in this section or elsewhere in this article shall be collected by the director and deposited with the treasurer of the state of West Virginia to the credit of the operating permit fees fund and shall be used, upon requisition of the director, for the administration of this article.
          (5) Prior to the issuance of any permit, the director shall ascertain from the commissioner of the division of labor whether the applicant is in compliance with section fourteen, article five, chapter twenty-one of this code. Upon issuance of the permit, the director shall forward a copy to the commissioner of the division of labor, who shall assure continued compliance under ~~such~~ the permit.
          (6) (A) Prior to the issuance of any permit the director shall ascertain from the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission whether the applicant is in compliance with the provisions of section six-c, article two, chapter twenty-one-a of this code and section five, article two, chapter twenty-three of this code with regard to any required subscription to the unemployment compensation fund or to the workers' compensation fund, the payment of premiums to the fund, the timely filing of payroll reports and the maintenance of an adequate premium deposit. If the applicant is delinquent or defaulted, or has been terminated by the bureau or the commission, ~~then~~ the permit shall not be issued until the applicant returns to compliance or is restored by the ~~workers' compensation division~~ bureau or the commission under a reinstatement agreement: Provided, That in all ~~such~~ inquiries the commissioner of the bureau of employment programs and the executive director of the workers' compensation commission shall make response to the division of environmental protection within fifteen calendar days; otherwise, failure to respond timely ~~shall be~~ is considered to indicate the applicant is in compliance and ~~such~~ the failure will not be used to preclude issuance of the permit.
          (B) It is a requirement of this article that each operator maintain continued compliance with the provisions of section five, article two, chapter twenty-three of this code and provide proof of compliance to the director on a ~~annual~~ quarterly basis.
CHAPTER 23. WORKERS' COMPENSATION.
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-1. Workers' compensation commission created; findings.
          (a) The commissioner of the bureau of employment programs appointed under the provisions of section one, article two, chapter twenty-one-a of this code, has the sole responsibility for the administration of this chapter except for such matters as are entrusted to the compensation programs performance council created pursuant to section one, article three, chapter twenty-one-a of this code. In the administration of this chapter, the commissioner shall exercise all the powers and duties described in this chapter and in article two, chapter twenty-one-a of this code.
          ~~(b) The commissioner is authorized to promulgate rules and regulations to implement the provisions of this chapter.~~
          (c) The commissioner shall have an official seal for the authentication of orders and proceedings, upon which seal shall be engraved the words 'West Virginia Commissioner of Employment Programs' and such other design as the commissioner may prescribe. The courts in this state shall take judicial notice of the seal of the commissioner and in all cases copies of orders, proceedings or records in the office of the West Virginia commissioner of employment programs shall be equal to the original in evidence.
          (d) Pursuant to the provisions of article ten, chapter four of this code, the commissioner of the bureau of employment programs shall continue to administer this chapter until the first day of July, two thousand four.
          ~~(e) The attorney general shall perform all legal services required by the commissioner under the provisions of this chapter:~~ ~~Provided,~~ That in any case in which an application for review is prosecuted from any final decision of the workers' compensation appeal board to the supreme court of appeals, as provided by section four, article five of this chapter, or in any court proceeding before the workers' compensation appeal board, or in any proceedings before the office of judges, or in any case in which a petition for an extraordinary writ is filed in the supreme court of appeals or in any circuit court, in which such representation shall appear to the commissioner to be desirable, the commissioner may designate a regular employee of this office, qualified to practice before such court to represent the commissioner upon such appeal or proceeding, and in no case shall the person so appearing for the commissioner before the court receive remuneration therefor other than such person's regular salary.
          (a) The Legislature hereby declares that one of its primary and most serious responsibilities is control over the state fisc. Through the budgetary process, the Legislature maintains adequate funding for programs, such as the workers' compensation system, to benefit all citizens of West Virginia. This duty requires vision beyond past performance and current expectations to encompass future needs.
__________The Legislature owes a duty to all citizens of West Virginia to provide a solvent and effective system for addressing past, current and future workplace injuries. The present financial state of the workers' compensation system causes grave concerns over the continued viability of the system as a whole. In light of these concerns and to assure the existence of a workers' compensation system in the future for the benefit of the citizens of West Virginia, a realignment of the existing system must be undertaken.
__________The Legislature finds that on a discounted basis a net deficit in excess of two billion four hundred fifty-five million dollars currently exists in the workers' compensation fund. The deficit occurs as a result of a myriad of contributing factors, including, but not limited to, decades of opportunistic behavior by affected entities, decades of inadequate rate-making decisions, a longstanding failure to maintain proper reserves within the fund, a cumbersome claims management and process procedure, a drastic increase in the number of persons filing for permanent total disability benefits to avoid benefit reductions in one thousand nine hundred ninety-five, a reduction in employers' rates in one thousand nine hundred ninety-eight, a rate freeze by the executive branch in two thousand two, improvident judicial interpretations of the actions of the Legislature as well as other state budgetary deficits and liabilities. These factors, and the deficit created thereby, constitute a budgetary crisis and a danger to the continued viability of the workers' compensation fund. Without immediate changes in two thousand three, the fiscal stability of the workers' compensation fund and the state of West Virginia will suffer irreparable harm.
__________The Legislature further finds that prior attempts to retire this deficit have been thwarted. The enormity of the deficit requires immediate legislative action, including, but not limited to, decreasing the amount of benefits payable to a claimant, increases in the rates paid by employers and a restructuring of the claims management and processing procedures. The duty to protect the public fisc requires the Legislature to act in the interests of preserving the workers' compensation system for the benefit of all present and future citizens of West Virginia.
__________The Legislature recognizes that the legislative and judicial branches of government are coequal. It is, however, the duty of the Legislature to craft the statutory conditions of the workers' compensation system. Previous judicial decisions have thwarted the ability of the Legislature to create a fiscally responsible workers' compensation system. The Legislature is again required to restructure the workers' compensation system in an effort to preserve the system as a whole for the good of all citizens in West Virginia. The greater public good requires these amendments without regard to prior enactments or expectations.
__________The Legislature further finds that addressing the workers' compensation crisis requires the efforts of all persons and entities involved. Modification to the rate system, alteration of the benefit structure, improvement of current management practices and changes in perception must be merged into a unified effort to make the workers' compensation system viable and solvent. No single person or entity caused the problems within the workers' compensation system and all involved in the system must compromise and sacrifice to successfully address the current workers' compensation fund crisis.
__________(b) The 'Workers' Compensation Division of the Bureau of Employment Programs' is, on or after the first day of July, two thousand three, reestablished, reconstituted and continued as the workers' compensation commission, an agency of the state. The purpose of the commission is to ensure the fair, efficient and financially stable administration of the workers' compensation system of the state of West Virginia. The powers and duties heretofore imposed upon the workers' compensation division and the commissioner of the bureau of employment programs as they relate to workers' compensation are hereby imposed upon the workers' compensation commission and its executive director in the manner prescribed by this chapter.
§23-1-1a. Board of managers; appointment; composition; qualifications; terms; chairperson; meetings and quorum; compensation and travel expenses; powers and duties.

          (a) The members of the board of managers shall be appointed by the governor, with the advice and consent of the Senate, from a list of candidates submitted by the nominating committee for each of the nine board positions. The nominating committee shall convene and select another candidate within two weeks of the governor's rejection of any candidate for a board position. The initial appointment shall be made no later than the first day of May, two thousand three. No appointed member shall be a candidate for or hold elected office. The initial appointees shall serve in their capacity as members of the board pending Senate confirmation. If a candidate for board member is not confirmed by the Senate, a new candidate shall be selected in accordance with the provisions of this section and section one-d of this article.
          (b) The board of managers will be composed of the following members, each of whom will be nominated with special reference to his or her demonstrated knowledge and experience to effectively accomplish the purposes of this chapter:
          (1) Two who are members of organized labor;
          (2) Two who, on account of his or her vocation, employment or affiliations, can be classed as a representative of the interests of employers;
          (3) A medical doctor, licensed in West Virginia, who by experience, board certification or university affiliation, has demonstrated expertise in occupational medicine within the context of the West Virginia workers' compensation system; and
          (4) Four members with demonstrated knowledge and experience in the area of workers' compensation, claims administration, public administration, administrative law, accounting, investments, finance, workplace safety or insurance administration. Persons appointed under this subdivision shall not be nominated based on specific affiliation with either the business or labor communities.
          (c) All members of the board of managers shall have a fiduciary responsibility to the commission and all workers' compensation funds and shall assure the proper administration of the fund in a fiscally responsible manner.
          (d) Of the initial appointments made to the board of managers, the employee and employer representatives shall serve one year each, the medical representative shall serve two years, two members of the remaining four will serve three years each, and two shall serve four years each. Thereafter, as each term expires, the vacancy created shall be filled by an appointee for a term of four years. Members may be reappointed no more than two full terms. Appointments to fill the unexpired term of a member shall be for the remainder of the term.
          (e) Members of the board of managers may only be removed by the governor for good cause shown.
          (f) The board of managers shall elect one member to serve as the chairperson of the board. The chairperson shall serve for a one year term and may serve more than one consecutive term. The board of managers shall hold meetings at the request of the chairperson or at the request of at least three of the members of the board of managers, but no less frequently than once every three months. The chairperson shall determine the date and time of each meeting. Six members of the board of managers constitute a quorum for the conduct of the business of the board of managers. No vacancy in the membership of the board shall impair the right of a quorum to exercise all the rights and perform all the duties of the board. No action shall be taken by the board of managers except upon the affirmative vote of at least six members. The executive director shall call an organizational meeting within thirty days of the initial appointment of the full board of managers at which time the board shall adopt bylaws governing its operation and elect a chairperson.
          (g) Notwithstanding the provisions of article seven, chapter six of this code, the board of managers shall establish the salary of the executive director, at a minimum of one hundred twenty thousand dollars, not to exceed one hundred eighty thousand dollars. The maximum salary may be adjusted by the board in accordance with generally accepted annual inflation indices. The board shall establish a set of performance measurements to evaluate the performance of the executive director in fulfilling his or her duties as prescribed in this chapter and shall annually rate the executive director's performance according to the established measurements and may adjust his or her annual salary in accordance with that performance rating.
          (h) In addition to actual travel expenses incurred in the performance of his or her duties, each member of the board of managers shall receive annual compensation of twelve thousand dollars per year.
          (i) Each member of the board shall be provided appropriate liability insurance, including, but not limited to, errors and omissions coverage, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.
          (j) The board of managers may:
          (1) Review and approve, reject or modify recommendations from the executive director for the development of overall policy for the administration of this chapter;
          (2) Upon recommendation of the executive director, propose legislation and establish operating guidelines and policies designed to ensure the effective administration and financial viability of the workers' compensation system of West Virginia;
          (3) Review and approve, reject or modify rules that are proposed by the executive director for operation of the workers' compensation system before the filing of the rules with the secretary of state. The rules adopted by the board of managers are not subject to sections nine through sixteen, article three, chapter twenty-nine-a of this code. The board of managers shall follow the remaining provisions of chapter twenty-nine-a of this code for giving notice to the public of their actions and for holding hearings and receiving public comments on the rules;
          (4) In accordance with the laws, rules and regulations of West Virginia and the United States government, establish and monitor performance measurements to ensure the timeliness and accuracy of activities performed under the workers' compensation laws and rules;
          (5) Review and approve, reject or modify all classifications of occupations or industries, premium rates and taxes, administrative charges, rules and systems of rating, rate revisions, deficit management assessments and merit rating for employers covered by this chapter. The executive director shall provide all information required for the board's review;
          (6) In conjunction with the executive director initiate, oversee and review all independent financial audits and actuarial reviews of the commission. The executive director shall provide access to records of the commission to facilitate the review required under this section;
          (7) Approve the allocation of sufficient administrative resources and funding to efficiently operate the workers' compensation system of West Virginia. To assure efficient operation, the board shall develop a plan for the collections performed under article five-a. The plan for collections shall maximize ration of dollars potentially realized by the collection proceeding to the dollars invested in collection activity;
          (8) Review and approve, reject or modify the budget prepared by the executive director for the operation of the commission. The budget shall include estimates of the costs and necessary expenditures of the commission in the discharge of all duties imposed by this chapter as well as the cost of providing offices, furniture, equipment and supplies to all commission officers and employees;
          (9) Approve the designation of health care providers to make decisions regarding appropriateness of medical services;
          (10) Require the workers' compensation commission to develop, maintain and use an effective program of return to work services for employers and workers;
          (11) Require the workers' compensation commission to develop, maintain and use thorough and efficient claims management procedures and processes and fund management in accordance with the generally accepted practices of the workers' compensation insurance industry;
          (12) Consider other matters regarding the workers' compensation system as the governor, executive director or any member of the board of managers may desire;
          (13) Review and approve, reject or modify standards recommended by the executive director to be considered by the commission in making decisions on all levels of disability awards. The standards should be established as an effective means to make prompt, appropriate decisions relating to medical care and methods to assist employees to return to work as quickly as possible;
          (14) Appoint a temporary executive director, if necessary, for a period not greater than six months; and
          (15) Employ sufficient professional and clerical staff to carry out the duties of the board. Employees of the board shall serve at the will and pleasure of the board. The board's employees are exempt from the salary schedule or pay plan adopted by the division of personnel. The board shall have the actuarial soundness of the workers' compensation funds and the deficit management funds evaluated annually to ensure that sufficient funds are available to meet obligations.

§23-1-1b. Executive director; qualifications; oath; seal; removal; powers and duties.

          (a) The executive director shall be hired by the board of managers for a term not to exceed five years and may be retained based on overall performance for additional terms. The position of executive director shall be full-time employment. Candidates for the position of executive director shall have a minimum of a bachelor of arts or science degree from an accredited four-year college or university in one or more of the following disciplines: Finance; economics; insurance administration; law; public administration; accounting; or business administration: Provided, That the board may substitute specialized education and training for a college degree. Candidates for the position of executive director will be considered based on their demonstrated education, knowledge and a minimum of ten years' experience in the areas of workers' compensation, insurance company management, administrative and management experience with an organization comparable in size to the workers' compensation commission, or any relevant experience which demonstrates an ability to effectively accomplish the purposes of this chapter.
          (b) The executive director shall not be a candidate for or hold any other public office or trust, nor shall he or she be a member of a political committee. If he or she becomes a candidate for a public office or becomes a member of a political committee, his or her office as executive director shall be immediately vacated.
          (c) The executive director, before entering upon the duties of his or her office, shall take and subscribe to the oath prescribed by section five, article IV of the state constitution. The oath shall be filed with the secretary of state.
          (d) The executive director shall have an official seal for the authentication of orders and proceedings, upon which seal shall be engraved the words 'West Virginia Workers' Compensation Commission' and any other design prescribed by the board of managers. The courts in this state shall take judicial notice of the seal of the commission and in all cases copies of orders, proceedings or records in the office of the West Virginia workers' compensation commission are equal to the original in evidence.
          (e) The executive director shall not be a member of the board of managers.
          (f) The executive director shall serve until the expiration of his or her term, resignation or until removed by a majority vote of the full board of managers. The board of managers and the executive director may, by agreement, terminate the term of employment at any time.
          (g) The executive director shall have overall management responsibility and administrative control and supervision within the workers' compensation commission and has the power and duty to:
          (1) Establish, with the approval of the board of managers, the overall administrative policy of the commission for the purposes of this chapter;
          (2) Employ, direct and supervise all employees required in connection with the performance of the duties assigned to the commission by this chapter and fix the compensation of the employees in accordance with the provisions of article six, chapter twenty-nine of this code;
          (3) Reorganize the work of the commission, its divisions, sections, departments and offices to the extent necessary to achieve the most efficient performance of its functions, and to that end may establish, reassign, change or abolish positions and assign and reassign duties and responsibilities of every employee of the commission. All persons employed by the workers' compensation division in positions that were formerly supervised and directed by the commissioner of the bureau of employment programs under chapter twenty-one-a of this code are hereby transferred to the workers' compensation commission in their respective classifications but subject to reassignment and reclassification of position and compensation as the executive director determines to be in the best interest of efficient administration and proper claims processing. Due to the emergency currently existing at the commission and the urgent need to develop fast, efficient claims processing, management and administration, the executive director is hereby granted extraordinary emergency authority for a period of two years to expire on the first day of July, two thousand five, to expedite all personnel changes relating to classification of employees, reassigning personnel and their duties and responsibilities, creating new positions and establishing pay grade and wage scales necessary for the commission to effectuate the purposes of this chapter. The division of personnel shall cooperate fully by assisting in the development of classifications, position descriptions and other materials necessary to expedite all changes for the commission. The executive director shall identify which members of the commission staff shall be exempted from the salary schedules or pay plan adopted by the state personnel board and further identify the staff members by job classification or designation. This information shall be filed by the executive director with the director of the division of personnel no later than the first day of January, two thousand four, and thereafter as necessary;
          (4) Provide offices, equipment, supplies and other facilities for the commission, including suitable office space for commission employees;
          (5) With the advice and approval of the board of managers, propose operating guidelines and policies to standardize administration, expedite commission business and promote the efficiency of the services provided by the commission;
          (6) Prepare and submit to the board of managers information the board requires for classifications of occupations or industries, for premium rates, taxes, surcharges and assessment for administrative charges, for rules and systems of rating, rate revisions and merit rating for employers covered by this chapter. The executive director shall obtain, prepare and submit any other information the board of managers requires for the prompt and efficient discharge of its duties;
          (7) Keep accurate and complete accounts and records necessary to the collection, administration and distribution of the workers' compensation funds;
          (8) Sign and execute in the name of the state, by 'The Workers' Compensation Commission', any contract or agreement;
          (9) Make recommendations and an annual report to the governor concerning the condition, operation and functioning of the commission;
          (10) Invoke any legal or special remedy for the enforcement of orders or the provisions of this chapter;
          (11) Prepare and submit for approval to the board of managers a budget for each fiscal year, including estimates of the costs and necessary expenditures of the commission in the discharge of all duties imposed by this chapter as well as the costs of furnishing office space to the officers and employees of the commission;
          (12) Ensure that all employees of the commission follow the orders, operating guidelines and policies of the commission as they relate to the commission's overall policy-making, management and adjudicatory duties under this chapter;
          (13) Delegate all powers and duties vested in the executive director to his or her appointees and employees; but the executive director is responsible for their acts;
          (14) Provide at commission expense a program of continuing professional, technical and specialized instruction for the personnel of the commission. The executive director shall consult with and report at least annually to the legislative oversight commission on workforce investment for economic development to obtain the most appropriate training using all available resources;
          (15) (A) Employ in-house counsel to perform all legal services for the commission including, but not limited to, representing the executive director, board of managers and commission in any administrative proceeding and in any state or federal court. Additionally, the commission may call upon the attorney general for legal assistance and representation as provided by law.
          (B) In addition to the authority granted by this section to the executive director and notwithstanding any provision to the contrary elsewhere in this code, use any attorney regularly employed by the commission or the office of the attorney general to represent the commission, the executive director or the board of managers in any matter arising from the performance of its duties or the execution of its powers under this chapter. In addition, the executive director, with the approval of the board of managers, may retain counsel for any purpose in the administration of this chapter relating to the collection of any amounts due from employers to the commission: Provided, That the allocation of resources for the purpose of any collections shall be pursuant to the plan developed by the board of managers. The board of managers shall solicit proposals from counsel who are interested in representing the commission under the terms of this subdivision. Thereafter, the board of managers shall select any attorneys it determines necessary to pursue the collection objectives of this subdivision:
          (i) Payment to retained counsel may either be hourly or by other fixed fee, or as determined by the court or administrative law judge as provided for in this section. A contingency fee payable from the amount recovered by judgment or settlement for the commission is only permitted, to the extent not prohibited by federal law, when the assets of a defendant or respondent are depleted so that a full recovery plus attorneys' fees is not possible;
          (ii) In the event that any collections action, other than a collections action against a claimant, initiated either by retained counsel or other counsel on behalf of the commission results in a judgment or settlement in favor of the commission, the court or, if there was no judicial component to the action, the administrative law judge, shall determine the amount of attorneys' fees that shall be paid by the defendants or respondents to the retained or other counsel representing the commission. If the court is to determine the amount of attorneys' fees, it shall include in its determination the amount of fee that should be paid for the representation of the commission in pursuing the administrative component, if any, of the action. The amount so paid shall be fixed by the court or the administrative law judge in an amount no less than twenty percent of its recovery. Any additional amount of attorneys' fees shall be determined by use of the following factors:
          (I) The counsel's normal hourly rate or, if the counsel is an employee of the commission or is an employee of the office of the attorney general, an hourly rate the court or the administrative law judge determines to be customary based upon the attorney's experience and skill level;
          (II) The number of hours actually expended on the action;
          (III) The complexity of the issues involved in the action;
          (IV) The degree of risk involved in the case with regard to the probability of success or failure;
          (V) The overhead costs incurred by counsel with regard to the use of paralegals and other office staff, experts and investigators; and
          (VI) The public purpose served or public objective achieved by the attorney in obtaining the judgment or settlement on behalf of the commission.
          (iii) Notwithstanding the provisions of paragraph (B) of this subdivision, if the commission and the defendants or respondents to any administrative or judicial action settle the action, the parties may negotiate a separate settlement of attorneys' fees to be paid by the defendants or respondents above and beyond the amount recovered by the commission. In the event that a settlement of attorneys' fees is made, it must be submitted to the court or administrative law judge for approval;
          (iv) Any attorney regularly employed by the commission or by the office of the attorney general may not receive any remuneration for his or her services other than the attorney's regular salary. Any attorneys' fees awarded for an employed attorney are payable to the commission;
          (16) With the approval of the board of managers, promulgate rules under which agencies of this state shall revoke or refuse to grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit whose account is in default with the commission with regard to the administration of this chapter. The term 'agency' includes any unit of state government such as officers, agencies, divisions, departments, boards, commissions, authorities or public corporations. An employing unit is not in default if it has entered into a repayment agreement with the commission and remains in compliance with its obligations under the repayment agreements.
          (A) The rules shall provide that, before granting, issuing or renewing any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employing unit, the designated agencies shall review a list or lists provided by the commission of employers that are in default. If the employing unit's name is not on the list, the agency, unless it has actual knowledge that the employing unit is in default with the commission, may grant, issue or renew the contract, license, permit, certificate or other authority to conduct a trade, profession or business. The list may be provided to the agency in the form of a computerized database or databases that the agency can access. Any objections to the refusal to issue or renew shall be reviewed under the appropriate provisions of this chapter. The prohibition against granting, issuing or renewing any contract, license, permit, certificate or other authority under this subdivision shall remain in full force and effect as promulgated by the bureau of employment programs until the rules required by this subsection are promulgated and in effect.
          (B) The rules shall also provide a procedure allowing any agency or interested person, after being covered under the rules for at least one year, to petition the commission to be exempt from the provisions of the rules;
          (17) Deposit to the credit of the appropriate special revenue account or fund, notwithstanding any other provision of this code and to the extent allowed by federal law, all amounts of delinquent payments or overpayments, interest and penalties thereon, and attorneys' fees and costs collected under the provisions of this chapter. The amounts collected shall not be treated by the auditor or treasurer as part of the general revenue of the state;
          (18) Recommend for approval of the board, rules for the administration of claims management by self-insured employers and third-party administrators including regulation and sanctions for the rejection of claims and for maintaining claim records and ensuring access to all claim records by interested claimants, claimant representatives, the commission and the office of judges;
          (19) Recommend for approval of the board of managers, rules to eliminate the ability of an employer to avoid an experience modification factor by virtue of a reorganization of a business;
          (20) Submit for approval of the board, rules setting forth procedures for auditing and investigating employers, including programs of self-insured employers and third-party administrators, employees, health care providers and medical and vocational rehabilitation service providers wherever a formal substantive complaint has been filed. Audits and investigations shall be conducted whenever the commission has grounds for believing that the person, persons, organization or group is not in full compliance with the commission's rules or this chapter;
          (21) Regularly audit and monitor programs established by self-insured or third-party administrators under this chapter to ensure compliance with the commission's rules and the law;
          (22) Establish and maintain an investigation and fraud unit;
          (23) Enter into interagency agreements to assist in exchanging information and fulfilling the default provisions of this chapter;
          (24) Notwithstanding any provision of this code to the contrary, the executive director, under emergency authorization, expend up to fifty thousand dollars for purchases of and contract for goods and services without securing competitive bids. This emergency spending authority expires on the first day of July, two thousand five; and
          (25) Establish an employer violator system to identify individuals and employers who are in default or are delinquent on any premium, assessment, surcharge, tax or penalty owed to the commission. The employer violator system shall prohibit violators who own, control or have an ownership interest, as defined by the commission, in a company from obtaining or maintaining any license or permit issued by the state until the violator has paid all monies owed to the commission or has entered into and fulfilled a repayment agreement.
§23-1-1c. Payment withholding; interception; penalty.
          (a) All state, county, district and municipal officers and agents making contracts on behalf of the state of West Virginia or any political subdivision thereof shall withhold payment in the final settlement of contracts until the receipt of a certificate from the commission to the effect that all payments, interest and penalties thereon accrued against the contractor under this chapter have been paid or that provisions satisfactory to the commission have been made for payment. Any official violating this subsection is guilty of a misdemeanor and, on conviction thereof, shall be fined not more than one thousand dollars or confined in the county or regional jail for not more than one year, or both fined and confined.
          (b) Any agency of the state, for the limited purpose of intercepting, pursuant to section five- a, article two, chapter twenty-three of this code, any payment by or through the state to an employer who is in default in payment of contributions, premiums, deposits, interest or penalties under the provisions of this chapter, shall assist the commission in collecting the payment that is due. For this purpose, disclosure of joint delinquency and default lists of employers with respect to unemployment compensation as provided in section six-c, article one, chapter twenty-one-a of this code and workers' compensation contributions, premiums, interest, deposits or penalties is authorized. The commission and the bureau of employment programs may enter into an interagency agreement to effectuate the provisions of this section. The lists may be in the form of a computerized database to be accessed by the auditor, the department of tax and revenue, the department of administration, the division of highways or other appropriate state agency or officer.

§23-1-1d. Workers' compensation nominating committee; composition; responsibilities.

          (a) There is hereby created the workers' compensation nominating committee which shall consist of the following members:
          (1) The chair of the West Virginia state bar workers' compensation committee, who shall serve as the chair of the nominating committee;
          (2) The commissioner, West Virginia department of labor;
          (3) The chair of the West Virginia investment management board;
          (4) The chair of the West Virginia state board of risk and insurance management;
          (5) The president of the West Virginia AFL-CIO or his or her designee;
          (6) The president of the West Virginia chamber of commerce or his or her designee;
          (7) The president of the West Virginia medical association or his or her designee;
          (8) The president of the West Virginia safety council or his or her designee; and
          (9) The executive director of the West Virginia development office.
          (b) The nominating committee shall be responsible for reviewing and evaluating candidates for possible appointment to the board of managers of the workers' compensation commission as provided in subsection (a), section one-a, of this article and subsection (a), section one-b of this article. In reviewing candidates, the nominating committee may accept comments from and request information from any person or source.
          (c) Each member of the nominating committee may submit three names of qualified candidates for each position on the board of managers. After careful review of the candidates, the committee shall select a candidate for each position on the board. Those names shall be submitted to the governor for consideration. In the event the governor rejects a candidate, the nominating committee shall promptly select and submit the name of another qualified candidate for the position.
          (d) No later than the first day of April, two thousand three, the nominating committee shall present to the governor its list of candidates for the initial board of managers. The governor shall appoint the initial full board no later than the first day of May, two thousand three. Thereafter, the nominating committee shall meet at the request of the governor or as the nominating committee determines necessary in order to make timely recommendations to the governor for new appointees as the initial and subsequent terms expire; the commendations to be submitted no later than thirty days prior to the expiration of any term.
§23-1-1e. Rules of former division of workers' compensation.
          Except as otherwise provided for in this chapter, all rules applicable to the former workers' compensation division of the bureau of employment programs are hereby adopted and made effective as to the operation of the workers' compensation commission under this chapter to the extent that they are not in conflict with the current law. The board of managers shall review and approve, modify or replace all existing rules no later than the first day of July, two thousand six.
§23-1-1f. Transfer of assets and contracts.
          With the establishment of the workers' compensation commission, all assets and contracts, along with rights and obligations thereunder, obtained or signed on behalf of the workers' compensation division of the bureau of employment programs in furtherance of the purposes of this chapter, are hereby transferred and assigned to the workers' compensation commission.

§23-1-1g. Continuation.

The workers' compensation division shall continue to exist pursuant to article ten, chapter four of this code, until the first day of July, two thousand three, at which time all powers and duties are transferred to the workers' compensation commission. The workers' compensation commission shall continue to exist, pursuant to said article until the first day of July, two thousand four, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.

§23-1-2. Oversight of the workers' compensation commission.

          All expenses peculiar to the administration of this chapter, and, when on official business, the traveling and incidental expenses of the commissioner and salaries or other compensation, traveling and other expenses of all officers or employees of the commissioner, and all expenses for furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all organizations pertaining to workers' compensation or safety in which the commissioner considers it advisable to maintain membership, shall be paid out of the workers' compensation fund.
          (a) In addition to any other oversight of the commission exercised by the Legislature, the commission shall report at least quarterly to the governor, the joint commission on economic development and the joint committee on government and finance. The commission shall collect data and report on claims and injuries and on the costs and outcomes of injuries by standard codes for medical treatment, vocation rehabilitation services, return to work services and other benefits payable to or on behalf of employees. The workers' compensation commission shall provide to the joint commission on economic development an action plan for improving the workers' compensation system. This plan shall include detail on any administrative changes undertaken by the commission, a report on the anticipated outcome of the changes, a cost-benefit analysis of the changes and time frames for commencement and completion of these changes. Subsequent reports to the joint commission on economic development shall report on the progress of these changes. The administrative changes shall include, but are not limited to, claims processing, reorganization, staff development and training, return-to-work programs, workplace alternatives for injured workers, safety programs and medical and vocational services.
__________(b) The commission shall further provide detailed analysis in each report to the Legislature of the current status of the deficit management fund. This analysis shall include the current balance in the fund, revenue generated and expended in relationship to the deficit management fund and estimates of debt reduction relative to the deficit management fund over the next reporting period.
__________(c) The commission shall also report on the current status of the workers' compensation fund and the occupational pneumoconiosis fund. This analysis shall include the current balances in the fund and revenue generated and expended in relationship to the liabilities and assets of the funds.
__________(d) The commission shall further report to the Legislature on legislative action that may be required to further improve the operation of the commission.
__________(e) The commission shall further report to the legislative committees specified in this section at the legislative interim committee meetings the total number of fraud and abuse cases the commission has investigated, including whether the investigation resulted in prosecution or restitution to the workers' compensation fund. The report shall give the status of each case and a breakdown by category of investigations and prosecutions of claimants, employers, health care providers and rehabilitation service providers.
§23-1-3. Payment of salaries and expenses generally; manner; limitation.

          (a) All expenses peculiar to the administration of this chapter, and, when on official business, the travel and incidental expenses of the commissioner and salaries or other compensation, traveling and other expenses of all officers or employees of the commission, and all expenses for furniture, books, maps, stationery, appliances, property of all kinds and dues for membership in all organizations pertaining to workers' compensation, safety maintenance of professional designation in which the executive director considers it advisable to maintain membership, shall be paid out of the workers' compensation fund.
__________(b) All payments of salaries and expenses in the administration of this chapter shall be made by the state treasurer upon requisition signed by the executive director, directed to the auditor of the state, who shall draw his or her warrant therefor, and ~~any such~~ the payment shall be charged to the workers' compensation fund: Provided, That the total charges against ~~such~~ the fund under this section for any one fiscal year shall not exceed the amount appropriated ~~therefor~~ for the administration of this chapter.

§23-1-4. Office hours; records; confidentiality; exceptions; associate director.

          (a) The offices of the workers' compensation ~~division~~ commission shall be open for the transaction of business between the hours of eight-thirty o'clock a.m., and five o'clock p.m., of each and every day, excepting Saturdays, Sundays and legal holidays, and be open upon ~~such~~ any additional days and at ~~such~~ any additional times as elected by the ~~division may elect~~ commission. As the chief executive officer of the ~~bureau of employment programs~~ workers' compensation commission, the ~~commissioner~~ executive director shall designate an ~~executive~~ associate director to serve as the chief operating officer for the daily operations of the workers' compensation ~~division:~~ ~~Provided,~~ ~~That in any instance in this chapter which refers to the commissioner's secretary, such reference shall be taken to mean the executive director~~ commission. The associate director shall serve at the will and pleasure of the executive director.
          (b) Except as expressly provided for in this subsection, information obtained regarding employers and claimants pursuant to this chapter for the purposes of its administration ~~shall~~ is not be subject to the provisions of chapter twenty-nine-b of this code unless ~~such~~ the provisions are hereafter specifically made applicable, in whole or in part. ~~Such~~ The information ~~as may be~~ that is reasonably necessary may be released in formal orders or opinions of any tribunal or court which is presented with an issue arising under this chapter as well as in the presentations of the parties before ~~any such~~ the tribunal or court. Similarly, claimants or other interested parties to an issue arising under this chapter may, upon request, obtain information from the ~~division's~~ commission's records to the extent necessary for the proper presentation or defense of a claim or other matter. Information may be released pursuant to the provisions of chapter twenty-nine-b of this code only if all identifying information has first been eliminated from the records. Nothing in this subsection shall prevent the release of information to another agency of the state or of the federal government for the legitimate purposes of those agencies: Provided, That ~~any such~~ the agency shall guarantee the confidentiality of the information so provided to the fullest extent possible in keeping with its own statutory and regulatory mandates. Nothing in this section shall prevent the ~~division~~ commission from complying with any subpoena duces tecum: Provided, however, That the issuing tribunal or court shall take such actions as ~~may be~~ proper to maintain the confidentiality of the information.
          The ~~division~~ commission may release, pursuant to a proper request under the provisions of chapter twenty-nine-b of this code, the following information:
          (1) The base premium tax rate for a specific employer;
          (2) Whether or not a specific employer has obtained coverage under the provisions of this chapter;
          (3) Whether or not a specific employer is in good standing or is delinquent or in default according to the ~~division's~~ commission's records and the time periods thereof; and
          (4) If a specific employer is delinquent or in default, what the payments due the ~~division~~ commission are and what the components of that payment are including the time periods affected.
§23-1-4a. Bond for executive director and associate director.
          (a) The executive director and associate director of the workers' compensation commission shall give bond in an amount determined by the board of managers conditioned for the faithful management of the fund and performance of their duties. The bond shall be approved by the attorney general as to form. The surety of the bond may be a bonding or surety company, in which case the premium shall be paid out of the workers' compensation fund.
          (b) The executive director and associate director shall be provided appropriate insurance, including, but not limited to, errors and omission coverage, without additional premium, by the state board of risk and insurance management established pursuant to article twelve, chapter twenty-nine of this code.

§23-1-5. Office of executive director; hearings.

The ~~commissioner~~ executive director shall keep and maintain his or her office at the seat of government and shall provide a suitable room or rooms, necessary office furniture, supplies, books, periodicals, maps and other equipment. After due notice, showing the time and place, the ~~commissioner~~ executive director may hold hearings anywhere within the state, or elsewhere by agreement of claimant and employer, with the approval of the ~~commissioner~~ executive director.
§23-1-6. Employment of associate director and other assistants; compensation and travel expenses.

(a) The ~~commissioner~~ executive director may employ ~~a secretary~~ an associate director, actuary, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants, and fix their compensation, which shall be paid as provided in ~~sections two and~~ section three of this article. The associate director shall be hired with the advice and consent of the board of managers.
__________(b) The ~~commissioner, secretary~~ associate director, chief, supervisory officers, actuaries, accountants, inspectors, examiners, experts, clerks, stenographers and other assistants who may be employed ~~shall be~~ are entitled to receive from the workers' compensation fund their ~~actual and~~ necessary expense while traveling on business of the ~~commissioner Such~~ commission. Travel reimbursement shall be paid in accordance with the travel guidelines established by the department of administration. All expenses shall be itemized and sworn to by the person who incurred the expense, and ~~shall be~~ are subject to the approval of the ~~commissioner~~ executive director: Provided, That the expenses of the executive director shall be subject to the approval of the board of managers.

§23-1-7. Associate director to act during executive director's absence or inability to act and in case of vacancy; bond of associate director.

Whenever it ~~shall appear~~ appears that the ~~commissioner~~ executive director will be absent or unable to act for one week or more, the ~~secretary~~ associate director of the ~~commissioner~~ commission may be designated by the ~~commissioner~~ executive director to act during his or her absence or inability to act, and during ~~such~~ that period he or she shall have all the duties and powers of the commissioner. The secretary shall give bond in the penalty of twenty-five thousand dollars conditioned for the faithful performance of the duties of his office, which bond shall be approved by the attorney general as to form and by the governor as to sufficiency. The surety of such bond may be a bonding or surety company, in which case the premium shall be paid out of the appropriation made for the administration of this chapter. executive director. In the event a vacancy occurs in the office of ~~commissioner~~ executive director, the ~~secretary of the commissioner~~ associate director shall have all the duties and powers of the ~~commissioner~~ executive director until ~~a commissioner is appointed by the governor in accordance with section one of this article~~ an executive director or a temporary executive director is hired by the board of managers. The board of managers shall determine the amount of additional compensation the associate director may receive as acting executive director.

§23-1-8. Authority of executive director and employees as to oaths and evidence.

The ~~commissioner, secretary~~ executive director, associate director and ~~every inspector or examiner~~ other employees appointed by the ~~commissioner shall~~ executive director may, for the purpose contemplated by this chapter, ~~have power to~~ administer oaths, certify official acts, take depositions, issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounts, papers, records, documents and testimony.
§23-1-9. Compelling compliance with order or subpoena.
In case of failure or refusal of any person to comply with the order of the ~~commissioner~~ executive director, or subpoena issued by him or her, ~~his~~ ~~secretary~~ the associate director, or ~~one of his inspectors or examiners~~ duly appointed employee, or on the refusal of a witness to testify to any matter regarding which he or she may be lawfully interrogated, or refusal to permit an inspection as aforesaid, the circuit judge of the county in which the person resides, on application of the ~~commissioner~~ executive director, associate director or any ~~inspector or examiner~~ duly appointed ~~by him~~ employee, shall compel obedience by attachment proceedings as for contempt, as in the case of disobedience of the requirements of a subpoena issued from ~~such~~ the court on a refusal to testify ~~therein~~ in the court.

§23-1-10. Fee of officer serving subpoena; fees and mileage of witnesses.

          Each officer who serves ~~such~~ subpoenas on behalf of the commission shall receive the same fee as a sheriff, and each witness who appears in obedience to a subpoena before the ~~commissioner~~ executive director, associate director or ~~an inspector, or an examiner~~ duly appointed employee, shall receive for his or her attendance the fees and mileage provided for witnesses in civil cases in the circuit court, which shall be audited and paid out of the workers' compensation fund in the same manner as other expenses are audited and paid, if ~~such~~ the witness was subpoenaed without the request of either claimant or employer at the instance of the ~~commissioner~~ executive director, associate director or ~~an inspector or an examiner~~ duly appointed employee. The witness fees and mileage of any witness subpoenaed by, or at the instance of, either claimant or employer shall be paid by the party who subpoenas ~~such~~ the witness.
§23-1-11. Depositions; investigations.
          (a) In an investigation into any matter arising under this article and articles two through five, inclusive, of this chapter, the ~~division~~ commission may cause depositions of witnesses residing within or without the state to be taken in the manner prescribed by law for like depositions in the circuit court, but ~~such~~ the depositions shall be upon reasonable notice to claimant and employer or other affected persons or their respective attorneys. The ~~division~~ commission shall designate the person to represent it for the taking of ~~any such~~ the deposition.
          (b) The ~~division shall~~ commission also ~~have~~ has discretion to accept and consider depositions taken within or without the state by either the claimant or employer or other affected person, provided due and reasonable notice of the taking of ~~such~~ the depositions was given to the other parties or their attorneys, if any: Provided, That the ~~division~~ commission, upon due notice to the parties, ~~shall have~~ has authority to refuse or permit the taking of ~~such~~ depositions or to reject ~~such~~ the depositions after ~~the taking thereof~~ they are taken, if they were taken at ~~such~~ a place or under ~~such~~ circumstances as which imposed an undue burden or hardship upon the other parties.~~, and the division's~~ The commission's discretion to accept, refuse to approve or reject ~~such~~ the depositions ~~shall be~~ is binding in the absence of abuse of ~~such~~ the discretion.
§23-1-12. Copies of proceedings as evidence.
          A transcribed copy of the evidence and proceedings, or any specific part thereof, on any investigation or hearing, taken by a stenographer appointed by the ~~commissioner~~ executive director and certified and sworn to by ~~such~~ the stenographer to be a true and correct transcript of the testimony in the investigation or hearing, or of a particular witness, or of a specific part thereof, or to be a correct transcript of the proceedings had on ~~such~~ the investigation or hearing so purporting to be taken and subscribed, may be received in evidence by the ~~commissioner~~ executive director with the same effect as if ~~such~~ the stenographer were present and testified to the facts certified. A copy of ~~such~~ the transcript shall be furnished on demand to any party upon payment of the fee prescribed ~~therefor~~ in the rules and ~~regulations~~ policies of the ~~commissioner~~ commission. ~~such~~ The fee shall not to exceed that prescribed for transcripts in the circuit court.

§23-1-13. Rules of procedure and evidence; persons authorized to appear in proceedings; withholding of psychiatric and psychological reports and providing summaries thereof.

          (a) The workers' compensation ~~division~~ commission shall adopt reasonable and proper rules of procedure, regulate and provide for the kind and character of notices, and the service ~~thereof~~ of the notices, in cases of accident and injury to employees, the nature and extent of the proofs and evidence, the method of taking and furnishing ~~the same~~ of evidence to establish the rights to benefits or compensation from the fund hereinafter provided for, or directly from employers as hereinafter provided, as the case may require, and the method of making investigations, physical examinations and inspections, and prescribe the time within which adjudications and awards shall be made.
          (b) At hearings and other proceedings before the ~~division~~ commission or before the duly authorized representative of the ~~division~~ commission, an employer who is a natural person may appear, and a claimant may appear, only as follows:
          (1) By an attorney duly licensed and admitted to the practice of law in this state;
          (2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in another state or country or in the District of Columbia who has complied with the provisions of rule 8.0--admission pro hac vice, West Virginia supreme court rules for admission to the practice of law, as amended;
          (3) By a representative from a labor organization who has been recognized by the ~~division~~ commission as being qualified to represent a claimant or who is an individual otherwise found to be qualified by the ~~division~~ commission to act as a representative. ~~Such~~ The representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to ~~such~~ the facts and figures; or
          (4) Pro se.
          (c) At hearings and other proceedings before the ~~division~~ commission or before the duly authorized representative of the ~~division~~ commission, an employer who is not a natural person may appear only as follows:
          (1) By an attorney duly licensed and admitted to the practice of law in this state;
          (2) By a nonresident attorney duly licensed and admitted to practice before a court of record of general jurisdiction in another state or country or in the District of Columbia who has complied with the provisions of rule 8.0--admission pro hac vice, West Virginia supreme court rules for admission to the practice of law, as amended;
          (3) By a member of the board of directors of a corporation or by an officer of the corporation for purposes of representing the interest of the corporation in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to ~~such~~ the facts and figures; or
          (4) By a representative from an employer service company who has been recognized by the ~~division~~ commission as being qualified to represent an employer or who is an individual otherwise found to be qualified by the ~~division~~ commission to act as a representative. ~~Such~~ The representative shall participate in the presentation of facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to ~~such~~ the facts and figures.
          (d) The ~~division~~ commission or its representative may require an individual appearing on behalf of a natural person or corporation to produce satisfactory evidence that he or she is properly qualified and authorized to so appear pursuant to this section.
          (e) Subsections (b), (c) and (d) of this section shall not be construed as being applicable to proceedings before the office of judges pursuant to the provisions of article five of this chapter.
          (f) At the direction of a treating or evaluating psychiatrist or clinical doctoral level psychologist, a psychiatric or psychological report concerning a claimant who is receiving treatment or is being evaluated for psychiatric or psychological problems may be withheld from the claimant. In that event, a summary of the report shall be compiled by the reporting psychiatrist or clinical doctoral level psychologist ~~which~~. The summary shall be provided to the claimant upon his or her request. Any representative or attorney of the claimant must agree to provide ~~such a~~ the claimant with only the summary before the full report ~~shall be~~ is provided to the representative or attorney for his or her use in preparing the claimant's case. ~~Such a~~ The report shall only be withheld from the claimant in those instances where the treating or evaluating psychiatrist or clinical doctoral level psychologist certifies that exposure to the contents of the full report is likely to cause serious harm to the claimant or is likely to cause the claimant to pose a serious threat of harm to a third party.
          (g) In any matter arising under this article and articles two through five, inclusive, of this chapter in which the ~~division~~ commission is required to give notice to a party, if a party is represented by an attorney or other representative, then notice to the attorney or other representative ~~shall be~~ is sufficient notice to the party so represented.
§23-1-14. Forms.
          The ~~commissioner~~ commission shall prepare and furnish free of cost ~~blank~~ forms (and provide in his or her rules for their distribution so that ~~the same~~ they may be readily available) of applications for benefits for compensation from the workers' compensation fund, or directly from employers, as the case may be, notices to employers, proofs of injury or death, of medical attendance, of employment and wage earnings, and ~~such~~ any other ~~blanks~~ forms ~~as may be deemed~~ considered proper and advisable. ~~and it shall be~~ It is the duty of employers to constantly keep on hand a sufficient supply of ~~such blanks~~ the forms.
§23-1-15. Procedure before commission.
          The ~~commissioner shall~~ commission is not be bound by the usual common-law or statutory rules of evidence, but shall adopt formal rules of practice and procedure as herein provided, and may make investigations in ~~such~~ a manner as that in his or her judgment is best calculated to ascertain the substantial rights of the parties and to carry out the provisions of this chapter.

§23-1-17. Annual report by commission and occupational pneumoconiosis board.

Annually, on or about the fifteenth day of September in each year, the ~~commissioner~~ executive director and the occupational pneumoconiosis board shall make a report as of the thirtieth day of June addressed to the governor, which shall include a statement of the causes of the injuries for which the awards were made, an explanation of the diagnostic techniques used by the occupational pneumoconiosis board and all examining physicians to determine the presence of disease, the extent of impairment attributable thereto, a description of the scientific support for ~~such~~ the diagnostic techniques and a summary of public and private research relating to problems and prevention of occupational diseases. The report shall include a detailed statement of all disbursements, and the condition of the fund, together with any specific recommendations for improvements in the workers' compensation law and for more efficient and responsive administration ~~thereof~~ of the workers' compensation law, which the ~~commissioner may consider~~ executive director considers appropriate. Copies of all annual reports shall be filed with the secretary of state and shall be made available to the Legislature and to the public at large.

§23-1-18. Commission employees not subject to subpoena for workers' compensation hearings.

No employee of the workers' compensation ~~division~~ commission shall be compelled to testify as to the basis, findings or reasons for any decision or order rendered by the employee under this chapter in any hearing conducted pursuant to article five of this chapter.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.

§23-2-1. Employers subject to chapter; elections not to provide certain coverages; notices; filing of business registration certificates.

          (a) The state of West Virginia and all governmental agencies or departments created by it, including county boards of education, political subdivisions of the state, any volunteer fire department or company and other emergency service organizations as defined by article five, chapter fifteen of this code, and all persons, firms, associations and corporations regularly employing another person or persons for the purpose of carrying on any form of industry, service or business in this state, are employers within the meaning of this chapter and are ~~hereby~~ required to subscribe to and pay premium taxes into the workers' compensation fund for the protection of their employees and ~~shall be~~ are subject to all requirements of this chapter and all rules ~~and regulations~~ prescribed by the workers' compensation ~~division~~ commission with reference to rate, classification and premium payment: Provided, That ~~such~~ rates will be adjusted by the ~~division~~ commission to reflect the demand on the compensation fund by the covered employer.
          (b) The following employers are not required to subscribe to the fund, but may elect to do so:
          (1) Employers of employees in domestic services; or
          (2) Employers of five or fewer full-time employees in agricultural service; or
          (3) Employers of employees while ~~said~~ the employees are employed without the state except in cases of temporary employment without the state; or
          (4) Casual employers. An employer is ~~deemed to be~~ a casual employer when the number of his or her employees does not exceed three and the period of employment is temporary, intermittent and sporadic in nature and does not exceed ten calendar days in any calendar quarter; or
          (5) Churches; or
          (6) Employers engaged in organized professional sports activities, including employers of trainers and jockeys engaged in thoroughbred horse racing; or
          (7) Any volunteer rescue squad or volunteer police auxiliary unit organized under the auspices of a county commission, municipality or other government entity or political subdivision; volunteer organizations created or sponsored by government entities, political subdivisions or, area or regional emergency medical services boards of directors in furtherance of the purposes of the emergency medical services act of article four-c, chapter sixteen of this code: Provided, That ~~should~~ if any of the employers described in this subdivision have paid employees ~~then~~ to the extent of those paid employees, the employer ~~must~~ shall subscribe to and pay premium taxes into the workers' compensation fund based upon the gross wages of the paid employees but with regard to the volunteers, ~~such~~ the coverage remains optional; or
__________(8) Elected officials of a municipality in which the elected officials salary from the municipality is less than the minimum level of benefits.
          (c) Notwithstanding any other provision of this chapter to the contrary, whenever there are churches in a circuit which employ one individual clergyman and the payments to ~~such~~ the clergyman from ~~such~~ the churches constitute his or her full salary, such circuit or group of churches may elect to be considered a single employer for the purpose of premium payment into the workers' compensation fund.
          (d) Employers who are not required to subscribe to the workers' compensation fund may voluntarily choose to subscribe to and pay premiums into the fund for the protection of their employees and in ~~such~~ that case ~~shall be~~ are subject to all requirements of this chapter and all rules and regulations prescribed by the ~~division~~ commission with reference to rates, classifications and premium payments and shall afford to them the protection of this chapter, including section six of this article, but the failure of ~~such~~ the employers to choose to subscribe to and to pay premiums into the fund shall not impose any liability upon them other than ~~such~~ any liability as that would exist notwithstanding the provisions of this chapter.
          (e) Any foreign corporation employer whose employment in this state is to be for a definite or limited period which could not be considered 'regularly employing' within the meaning of this section may choose to pay into the workers' compensation fund the premiums ~~herein~~ provided for in this section, and at the time of making application to the workers' compensation ~~division such~~ commission, the employer shall furnish a statement under oath showing the probable length of time the employment will continue in this state, the character of the work, an estimate of the monthly payroll and any other information which may be required by the ~~division~~ commission. At the time of making application ~~such~~ the employer shall deposit with the ~~division~~ commission to the credit of the workers' compensation fund the amount required by section five of this article~~, which~~. That amount shall be returned to the employer if the employer's application be is rejected by the ~~division~~ commission. Upon notice to ~~such~~ the employer of the acceptance of his or her application by the ~~division~~ commission, he or she ~~shall be~~ is an employer within the meaning of this chapter and subject to all of its provisions.
          (f) Any foreign corporation employer choosing to comply with the provisions of this chapter and to receive the benefits ~~hereunder~~ under this chapter shall, at the time of making application to the ~~division~~ commission in addition to other requirements of this chapter, furnish the ~~division~~ commission with a certificate from the secretary of state, where ~~such~~ the certificate is necessary, showing that it has complied with all the requirements necessary to enable it legally to do business in this state and no application of ~~such~~ a foreign corporation employer shall be accepted by the ~~division~~ commission until ~~such~~ the certificate is filed.
          (g) The following employers may elect not to provide coverage to certain of their employees under the provisions of this chapter:
          (1) Employers of employees who are officers of and stockholders in a corporation qualifying for special tax treatment under subchapter S of the Internal Revenue Code of the United States may elect not to provide coverage to such employees; or
          ~~(2)~~ If an employer is a partnership, sole proprietorship, association or corporation, ~~such~~ the employer may elect not to include as an 'employee' within this chapter, any member of ~~such~~ the partnership, the owner of the sole proprietorship or any corporate officer or member of the board of directors of the association or corporation. The officers of a corporation or an association ~~shall consist~~ consist of a president, a vice president, a secretary and a treasurer, each of whom ~~shall be~~ is elected by the board of directors at ~~such~~ the time and in ~~such~~ the manner ~~as may be~~ prescribed by the bylaws. ~~Such other~~ Other officers and assistant officers ~~as may be deemed~~ that are considered necessary may be elected or appointed by the board of directors or chosen in ~~such~~ any other manner ~~as may be~~ prescribed by the bylaws and, if so elected, appointed or chosen, ~~such~~ the employer may elect not to include ~~any such~~ the officer or assistant officer as an 'employee' within the meaning of this chapter: Provided, That except for those persons who are members of the board of directors or who are the corporation's or association's president, vice president, secretary and treasurer and who may be excluded by reason of their ~~aforementioned~~ positions from the benefits of this chapter even though their duties, responsibilities, activities or actions may have a dual capacity of work which is ordinarily performed by an officer and also of work which is ordinarily performed by a worker, an administrator or an employee who is not an officer, no ~~such~~ other officer or assistant officer who is elected or appointed shall be excluded by election from coverage or be denied the benefits of this chapter merely because he or she is ~~such~~ an officer or assistant officer if, as a matter of fact:
          (A) He or she is engaged in a dual capacity of having the duties and responsibilities for work ordinarily performed by an officer and also having duties and work ordinarily performed by a worker, administrator or employee who is not an officer;
          (B) He or she is engaged ordinarily in performing the duties of a worker, an administrator or an employee who is not an officer and receives pay ~~therefor~~ for performing the duties in the capacity of an employee; or
          (C) If He or she is engaged in an employment palpably separate and distinct from his or her official duties as an officer of the association or corporation.
          (h) In the event of election under subsection (g) of this section, the employer shall serve upon the ~~division~~ commission written notice naming the positions not to be covered and shall not include ~~such~~ the 'employee's' remuneration for premium purposes in all future payroll reports, and ~~such~~ the partner, proprietor or corporate or executive officer ~~shall~~ is not ~~be deemed~~ considered an employee within the meaning of this chapter after ~~such~~ the notice has been served. Notwithstanding the provisions of subsection (g), section five of this article, if an employer has not subscribed to the fund even though it is obligated to do so under the provisions of this article, ~~then~~ any ~~such~~ partner, proprietor or corporate or executive officer shall not be covered and shall not receive the benefits of this chapter.
          (i) 'Regularly employing' or 'regular employment' ~~shall mean~~ means employment by an employer which is not a casual employer under this section.

§23-2-1c. Extraterritorial coverage; approval and change of agreements.

          (a) Whenever, with respect to an employee of an employer who is a subscriber in good standing to the workers' compensation fund or an employer who has elected to pay compensation directly, as provided in section nine of this article, there is a possibility of conflict with respect to the application of workers' compensation laws because the contract of employment is entered into and all or some portion of the work is performed or is to be performed in a state or states other than this state, the employer and the employee may agree to be bound by the laws of this state or by the laws of ~~such~~ any other state in which all or some portion of the work of the employee is to be performed: Provided, That the ~~commissioner shall have the authority to~~ executive director may review and accept or reject ~~any such~~ the agreement. ~~Any such~~ The review shall be conducted in keeping with the ~~commissioner's~~ executive director's fiduciary obligations to the workers' compensation fund which may include, among other things, the nexus of the employer and the employee to the state: Provided, however, That nothing in this section shall be construed so as to require ~~such~~ an agreement in those instances where subdivision (3), subsection (b), section one of this article or subdivision (1), subsection (a), section one-a of this article are applicable. ~~Such agreement shall~~ All agreements shall be in writing and filed with the ~~commissioner~~ executive director within ten days after execution ~~thereof~~ of the agreement but shall not become effective until approved by the ~~commissioner~~ executive director and shall, thereafter, remain in effect until terminated or modified by agreement of the parties similarly filed or by order of the ~~commissioner~~ executive director. If the parties agree to be bound by the laws of this state, an employee injured within the terms and provisions of this chapter ~~shall be~~ is entitled to benefits under this chapter regardless of the situs of the injury or exposure to occupational pneumoconiosis or other occupational disease, and the rights of the employee and his or her dependents under the laws of this state shall be the exclusive remedy against the employer on account of injury, disease or death in the course of and as a result of the employment.
          (b) If the parties agree to be bound by the laws of another state and the employer has complied with the laws of that state, the rights of the employee and his or her dependents under the laws of that state shall be the exclusive remedy against the employer on account of injury, disease or death in the course of and as a result of the employment without regard to the situs of the injury or exposure to occupational pneumoconiosis or other occupational disease.
          (c) If the employee is a resident of a state other than this state and is subject to the terms and provisions of the workers' compensation law or similar laws of a state other than this state, ~~such~~ the employee and his or her dependents ~~shall not be~~ are not entitled to the benefits payable under this chapter on account of injury, disease or death in the course of and as a result of employment temporarily within this state, and the rights of ~~such~~ the employee and his or her dependents under the laws of ~~such~~ the other state shall be the exclusive remedy against the employer on account of ~~such~~ any injury, disease or death.
          (d) If any employee or his or her dependents be are awarded workers' compensation benefits or recover damages from the employer under the laws of another state for an injury received in the course of and resulting from the employment, the amount so awarded or recovered, whether paid or to be paid in future installments, shall be credited against the amount of any benefits payable under this chapter for the same injury.

§23-2-1d. Primary contractor liability; definitions; applications and exceptions; certificates of good standing; reimbursement and indemnification; termination of contracts; effective date; collections efforts.

          (a) For the exclusive purposes of this section, the term 'employer' as defined in section one of this article ~~shall include~~ includes any primary contractor who regularly subcontracts with other employers for the performance of any work arising from or as a result of the primary contractor's own contract: Provided, That a subcontractor ~~shall~~ does not include one providing goods rather than services. For purposes of this subsection, extraction of natural resources is a provision of services. In the event that ~~such~~ a subcontracting employer defaults on its obligations to make payments to the ~~commissioner~~ commission, then ~~such~~ the primary contractor ~~shall be~~ is liable for ~~such~~ the payments. ~~Notwithstanding the foregoing~~ However, nothing contained in this section shall extend or except to ~~such~~ a primary contractor or subcontractors the provisions of section six, six-a or eight of this article. This section is applicable only with regard to subcontractors with whom the primary contractor has a contract for any work or services for a period longer than thirty days: Provided, however, That this section ~~shall also be~~ is also applicable to contracts for consecutive periods of work that total more than thirty days. It is not applicable to the primary contractor with regard to sub-subcontractors. However, a subcontractor for the purposes of a contract with the primary contractor can itself become a primary contractor with regard to other employers with whom it subcontracts. It is the intent of the Legislature that no contractor, whether a primary contractor, subcontractor or sub-subcontractor escape or avoid liability for any workers' compensation premium, assessment or tax. The executive director shall promulgate a rule to effectuate this purpose on or before the thirty-first day of December, two thousand three.
          (b) A primary contractor may avoid initial liability under subsection (a) of this section if it obtains from the ~~commissioner~~ executive director, prior to the initial performance of any work by the subcontractor's employees, a certificate that the subcontractor is in good standing with the workers' compensation fund.
          (1) Failure to obtain the certificate of good standing prior to the initial performance of any work by the subcontractor ~~shall result~~ results in the primary contractor being equally liable with the subcontractor for all delinquent and defaulted premium taxes, premium deposits, interest and other penalties arising during the life of the contract or due to work performed in furtherance of the contract: Provided, That the ~~division~~ ~~shall be~~ commission is entitled to collect only once for the amount of premiums, premium deposits and interest due to the default, but the ~~division~~ commission may impose other penalties on the primary contractor or on the subcontractor, or both.
          (2) In order to continue avoiding liability under this section, the primary contractor shall request that the ~~commissioner of the bureau of employment programs~~ commission inform the primary contractor of any subsequent default by the subcontractor. In the event that the subcontractor does default, the ~~commissioner~~ commission shall ~~then~~ notify the primary contractor of the default by placing a notice in the first-class United States mail, postage prepaid, and addressed to the primary contractor at the address furnished to the ~~commissioner~~ commission by the primary contractor. ~~Such~~ The mailing ~~shall be~~ is good and sufficient notice to the primary contractor of the subcontractor's default. However, the primary contractor ~~shall~~ is not ~~become~~ liable under this section until the first day of the calendar quarter following the calendar quarter in which the notice is given and then ~~such~~ the liability ~~shall~~ is only be for that following calendar quarter and thereafter and only if the subcontract has not been terminated: Provided, That the ~~commissioner shall be~~ commission is entitled to collect only once for the amount of premiums, premium deposits and interest due to the default, but the ~~commissioner~~ commission may impose other penalties on the primary contractor or on the subcontractor, or both.
          (c) In any situation where a subcontractor defaults with regard to its payment obligations under this chapter or fails to provide a certificate of good standing as provided for in this section, ~~such~~ the default or failure ~~shall be~~ is good and sufficient cause for a primary contractor to hold the subcontractor responsible and to seek reimbursement or indemnification for any amounts paid on behalf of the subcontractor to avoid or cure a workers' compensation default, plus related costs including reasonable attorneys' fees, and to terminate its subcontract with the subcontractor notwithstanding any provision to the contrary in the contract.
          (d) The provisions of this section are applicable only to those contracts entered into or extended on or after the first day of January, one thousand nine hundred ninety-four.
          (e) The ~~division~~ commission may take any action authorized by section five-a of this article in furtherance of its efforts to collect amounts due from the primary contractor under this section.

§23-2-2. Commission to be furnished information by employers, state tax commissioner and division of unemployment compensation; secrecy of information; examination of employers, etc.; violation a misdemeanor.

          (a) Every employer shall furnish the ~~commissioner~~ executive director, upon request, all information required by him or her to carry out the purposes of this chapter. The ~~commissioner~~ executive director, or any person employed by the ~~commissioner~~ commission for that purpose, ~~shall have the right to~~ may examine under oath any employer or officer, agent or employee of any employer.
          (b) Notwithstanding the provisions of any other statute, specifically, but not exclusively, sections five and five-b, article ten, chapter eleven of this code, and section eleven, article ten, chapter twenty-one-a of this code the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission may receive the following information:
          (1) Upon written request to the state tax commissioner: The names, addresses, places of business and other identifying information of all businesses receiving a business franchise registration certificate and the dates thereof; and the names and social security numbers or other tax identification numbers of the businesses and of the businesses' workers and employees, if otherwise collected, and the quarterly and annual gross wages or other compensation paid to the workers and employees of ~~such~~ businesses reported pursuant to the requirement of withholding of tax on income.
          (2) Upon written application to the division of unemployment compensation: In addition to the information that may be released to the ~~division of~~ workers' compensation commission for the purposes of this chapter under the provisions of chapter twenty-one-a of this code, the names, addresses and other identifying information of all employing units filing reports and information pursuant to section eleven, article ten, chapter twenty-one-a of this code as well as information contained in those reports regarding the number and names, addresses and social security numbers of employees employed and the gross quarterly wages paid by each employing unit to each identified employee.
          (c) All information acquired by the ~~division of~~ workers' compensation commission pursuant to subsection (b) of this section shall be used only for auditing premium payments, assisting in the determination of employment status and registering businesses under the single point of registration program as defined in section two, article one, chapter eleven of this code. The ~~division of~~ workers' compensation commission, upon receiving the business franchise registration certificate information made available pursuant to subsection (b) of this section, shall contact all businesses receiving a business franchise registration certificate and provide all necessary forms to register the business under the provisions of this article. Any officer or employee of this state who uses the ~~aforementioned~~ information obtained under this section in any manner other than the one stated ~~herein~~ in this section or elsewhere authorized in this code, or who divulges or makes known in any manner any of the ~~aforementioned~~ information obtained under this section, ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or ~~imprisoned~~ incarcerated in the county or regional jail for not more than one year, or both, together with cost of prosecution.
          (d) Reasonable costs of compilation and production of any information made available pursuant to subsection (b) of this section shall be charged to the ~~division of~~ workers' compensation commission.
          (e) Information acquired by the ~~commissioner~~ commission pursuant to subsection (b) of this section ~~shall~~ is not be subject to disclosure under the provisions of chapter twenty-nine-b of this code.
§23-2-3. Report forms and other forms for use of employers.
          The ~~division~~ commission shall prepare and furnish report forms for the use of employers subject to this chapter. Every employer receiving from the ~~division~~ commission any form or forms with direction for completion and returning to the ~~division~~ commission shall return the ~~same~~ form, within the period fixed by the ~~division~~ commission, completed so as to answer fully and correctly all pertinent questions ~~therein propounded~~ in the form, and if unable to do so, shall give good and sufficient reasons for ~~such~~ the failure. Every employer subject to the provisions of this chapter, shall make application to the ~~division~~ commission on the forms prescribed by the ~~division~~ commission for ~~such~~ that purpose; and any employer who ~~shall terminate~~ terminates his or her business or for any other reason is no longer subject to this chapter shall so notify the ~~division~~ commission on forms to be furnished by the ~~division~~ commission for that purpose.

§23-2-4. Classification of industries; rate of premiums; authority to adopt various systems; accounts.

          (a) The ~~commissioner in conjunction with the compensation programs performance council is authorized to,~~ executive director with approval of the board of managers is authorized to establish by rule a system for determining the classification and distribution into classes of employers subject to this chapter, a system for determining rates of premium taxes applicable to employers subject to this chapter, a system of multiple policy options with criteria for subscription ~~thereto~~ and criteria for an annual employer's statement providing both benefits liability information and rate determination information.
          (1) In addition, the rule shall provide for, but not be limited to:
          (A) Rate adjustments by industry or individual employer, including merit rate adjustments;
          (B) Notification regarding rate adjustments prior to the quarter in which the rate adjustments will be in effect;
          (C) Chargeability of claims; and
          (D) ~~Such~~ Any further matters that are necessary and consistent with the goals of this chapter;
          (2) The rule shall be consistent with the duty of the ~~commissioner and the compensation programs performance council~~ executive director and the board of managers to fix and maintain the lowest possible rates of premium taxes consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in ~~such~~ the fund and in keeping with their fiduciary obligations to the fund;
          (3) The rule shall be consistent with generally accepted accounting principles;
          (4) The rule shall be consistent with classification and rate-making methodologies found in the insurance industry; and
          (5) The rule shall be consistent with the principles of promoting more effective workplace health and safety programs as contained in article two-b of this chapter.
          (b) Notwithstanding any other provision of this chapter to the contrary, the compensation programs performance council may elect to premise its premium tax determination methodology on the aggregate number of hours worked by employees of the employer rather than upon the gross wages of the employer. Such an election may apply to all industrial classifications or to less than all. If this election is made, then in all instances in which this chapter refers to gross wage reports for the purpose of premium tax determination such references shall be taken to mean a report of the number of hours so worked.
          (c) The rule authorized by subsection (a) of this section shall be promulgated on or before the first day of July, one thousand nine hundred ninety-six. Until the rule is finally promulgated, the prior provisions of this section, as found in chapter one hundred seventy-one of the acts of the Legislature, one thousand nine hundred ninety-three, shall remain in effect.
          ~~(d)~~ (b) In accordance with generally accepted accounting principles, the workers' compensation ~~division~~ commission shall keep an accurate accounting of all money or moneys earned, due and received by the workers' compensation fund and of the liability incurred and disbursements made against the ~~same~~ fund; and an accurate account of all money or moneys earned, due and received from each individual subscriber and of the liability incurred and disbursements made against the same.
          (c) Prospective rates set in accordance with the provisions of this article shall at all times be financially sound in accordance with generally accepted accounting principles and fully fund the prospective claim obligations for the year in which the rates were made. Rates, surcharges or assessments for payments required on claims transferred to the deficit management fund shall be fair and equitable, financially sound in accordance with generally accepted accounting principles and sufficient to meet the payment obligations of the fund.
__________(d) On or after the first day of July, two thousand three, the board of managers may use the moneys in the deficit management fund created pursuant to section one-b, article three of this chapter to offset employer premiums surcharges or assessments that would otherwise be required: Provided, That if the fund balance reaches three hundred million dollars on or before the first day of July, two thousand four, any offset of premiums, surcharges or assessments previously computed into the rate-making process shall cease and premiums, surcharges or assessments shall be adjusted as needed: Provided, however, That the moneys in the deficit management fund shall not be fully expended prior to the first day of July, two thousand eight.
__________(e) Effective the first day of July, two thousand three, and for a period not to exceed two years thereafter, rates shall not be increased more than fifteen percent per year without prior approval of the Legislature's joint committee on government and finance.

§23-2-5. Application; payment of premium taxes; gross wages; payroll report; deposits; delinquency; default; reinstatement; payment of benefits; notice to employees; criminal provisions; penalties.

          (a) For the purpose of creating a workers' compensation fund, each employer who is required to subscribe to the fund or who elects to subscribe to the fund shall pay premium taxes calculated as a percentage of the employer's gross wages payroll at the rate determined by the ~~workers' compensation division~~ commission and then in effect. At the time each employer subscribes to the fund, the application required by the ~~division~~ commission shall be filed and a premium deposit equal to the first quarter's estimated premium tax payment shall be remitted. The minimum quarterly premium to be paid by any employer ~~shall be~~ is twenty-five dollars.
          (1) Thereafter, premium taxes shall be paid quarterly on or before the last day of the month following the end of the quarter, and shall be the prescribed percentage of the entire gross wages of all employees, from which net payroll is calculated and paid, during the preceding quarter. The ~~division~~ commission may ~~permit~~ require employers~~, who qualify under~~ in accordance with the provisions of rules promulgated by the ~~compensation programs performance council~~ executive director, to report gross wages and pay premium taxes at other intervals.
          (2) Every subscribing employer shall make a gross wages payroll report to the ~~division~~ commission for the preceding reporting period. The report shall be on the form or forms prescribed by the ~~division~~ commission and shall contain all information required by the ~~division~~ commission.
          (3) After subscribing to the fund, each employer shall remit with each premium tax payment an amount calculated to be sufficient to maintain a premium deposit equal to the premium payment for the previous reporting period. The ~~division~~ commission may reduce the amount of the premium deposit required from seasonal employers for those quarters during which employment is significantly reduced. If the employer pays premium tax on a basis other than quarterly, the ~~division~~ commission may require the deposit to be based upon some other time period. The premium deposit shall be credited to the employer's account on the books of the ~~division~~ commission and used to pay premium taxes and any other sums due the fund when an employer becomes delinquent or in default as provided in this article.
          (4) All premium taxes and premium deposits required by this article to be paid shall be paid by the employers to the ~~division~~ commission, which shall maintain a record of all sums so received. Any ~~such~~ sum mailed to the ~~division shall be deemed~~ commission is considered to be received on the date the envelope transmitting it is postmarked by the United States postal service. All sums received by the ~~division~~ commission shall be deposited in the state treasury to the credit of the workers' compensation ~~division~~ commission in the manner now prescribed by law.
          (5) The ~~division may~~ commission shall encourage employer efforts to create and maintain safe workplaces, to encourage loss prevention programs and to encourage employer-provided wellness programs, through the normal operation of the experience rating formula, seminars and other public presentations, the development of model safety programs and other initiatives as may be determined by the ~~commissioner and the compensation programs performance council~~ executive director and the board of managers.
          (b) Failure of an employer to timely pay premium taxes, to timely file a payroll report or to maintain an adequate premium deposit shall cause the employer's account to become delinquent. No employer will be declared delinquent or be assessed any penalty ~~therefor~~ for the delinquency if the ~~division~~ commission determines that ~~such~~ the delinquency has been caused by delays in the administration of the fund. The ~~division~~ commission shall, in writing, within sixty days of the end of each quarter notify all delinquent employers of their failure to timely pay premium taxes, to timely file a payroll report or to maintain an adequate premium deposit. Each employer who ~~shall fail~~ fails to timely file any quarterly payroll report or timely pay the premium tax due with ~~such~~ the report, or both, for any quarter commencing on and after the first day of July, one thousand nine hundred ninety-five, shall pay a late reporting or payment penalty of the greater of fifty dollars or a sum obtained by multiplying the premium tax due with ~~such~~ the report by the penalty rate applicable to that quarter. The penalty rate to be used in a workers' compensation ~~division's~~ commission's fiscal year ~~shall be~~ is calculated annually on the first day of each fiscal year. The penalty rate used to calculate the penalty for each quarter in a fiscal year is the quotient, rounded to the nearest higher whole number percentage rate, obtained by dividing the sum of the prime rate plus four percent by four. The prime rate ~~shall be~~ is the rate published in the Wall Street Journal on the last business day of the ~~division's~~ commission's prior fiscal year reflecting the base rate on corporate loans posted by at least seventy-five percent of the nation's thirty largest banks. ~~Such~~ The late penalty shall be paid with the most recent quarter's report and payment and is due when that quarter's report and payment are filed. If ~~such~~ the late penalty is not paid when due, ~~the same~~ it may be charged to and collected by the ~~division~~ commission from the employer's premium deposit account or otherwise as provided for by law. The notification shall demand the filing of the delinquent payroll report and payment of delinquent premium taxes, the penalty for late reporting or payment of premium taxes or premium deposit, the interest penalty and an amount sufficient to maintain the premium deposit before the end of the third month following the end of the preceding quarter. Interest shall accrue and be charged on the delinquent premium payment and premium deposit pursuant to section thirteen of this article.
          (c) Whenever the ~~division~~ commission notifies an employer of the delinquent status of its account, the notification shall explain the legal consequence of subsequent default by an employer required to subscribe to the fund and the legal consequences of termination of an electing employer's account.
          (d) Failure by the employer, who is required to subscribe to the fund and who fails to resolve the delinquency within the prescribed period, shall place the account in default and shall deprive ~~such~~ the default employer of the benefits and protection afforded by this chapter, including section six of this article, and the employer ~~shall be~~ is liable as provided in section eight of this article. The default employer's liability under ~~said~~ these sections ~~shall be~~ is retroactive to midnight of the last day of the month following the end of the quarter for which the delinquency occurs. The ~~division~~ commission shall notify the default employer of the method by which the employer may be reinstated with the fund. The ~~division~~ commission shall also notify the employees of ~~such~~ the employer by written notice as hereinafter provided for in this section.
          (e) Failure by any employer, who voluntarily elects to subscribe, to resolve the delinquency within the prescribed period shall place the account in default and shall automatically terminate the election of ~~such~~ the employer to pay into the workers' compensation fund and shall deprive ~~such~~ the employer and the employees of the default elective employer of the benefits and protection afforded by this chapter, including section six of this article, and ~~such~~ the employer ~~shall be~~ is liable as provided in section eight of this article. The default employer's liability under ~~said~~ that section ~~shall be~~ is retroactive to midnight of the last day of the month following the end of the quarter for which the delinquency occurs. Employees who were the subject of the default employer's voluntary election to provide them the benefits afforded by this chapter shall have ~~such~~ the protection terminated at the time of their employer's default.
          (f)(1) Except as provided for in subdivision (3) of this subsection, any employer who is required to subscribe to the fund and who is in default on the effective date of this section or who subsequently defaults, and any employer who has elected to subscribe to the fund and who defaults and whose account is terminated prior to the effective date of this section or whose account is subsequently terminated, shall be restored immediately to the benefits and protection of this chapter only upon the filing of all delinquent payroll and other reports required by the ~~division~~ commission and payment into the fund of all unpaid premiums, an adequate premium deposit, accrued interest and the penalty for late reporting and payment. Interest ~~shall be~~ is calculated as provided for by section thirteen of this article.
          The ~~division shall not have the authority to~~ commission may waive either premium or accrued interest. The provisions of section seventeen of this article apply to any action or decision of the ~~division~~ commission under this section.
          (2) The ~~division shall have the authority to~~ commission may restore a defaulted or terminated employer through a reinstatement agreement. ~~Such~~ The reinstatement agreement shall require the payment in full of all premium taxes, premium deposits, the penalty for late reporting and payment, past accrued interest and future interest calculated pursuant to the provisions of section thirteen of this article. Notwithstanding the filing of a reinstatement application or the entering into of a reinstatement agreement, the ~~division~~ commission is authorized to file a lien against the employer as provided by section five-a of this article. In addition, entry into a reinstatement agreement is discretionary with the ~~division~~ commission. ~~Such~~ Its discretion shall be exercised in keeping with the fiduciary obligations owed to the workers' compensation fund. ~~Should~~ If the ~~division decline~~ commission declines to enter into a reinstatement agreement and ~~should~~ if the employer does not comply with the provisions of subdivision (1) of this subsection, ~~then~~ the ~~division~~ commission may proceed with any of the collection efforts provided for by section five-a of this article or as otherwise provided for by this code. Applications for reinstatement shall: (A) Be made upon forms prescribed by the ~~division~~ commission; (B) include a report of the gross wages payroll of the employer which had not been reported to the ~~division~~ commission during the entire period of delinquency and default~~, which~~ . The gross wages information shall be certified by the employer or its authorized agent; and (C) include a payment of a portion of the liability equal to one half of one percent of the gross payroll during the period of delinquency and default or equal to another portion of the liability ~~as may be~~ determined~~, from time to time,~~ by rule but not to exceed the amount of the entire liability due and owing for the period of delinquency and default. An employer who applies for reinstatement ~~shall be~~ is entitled to the benefits and protection of this chapter on the day a properly completed and acceptable application which is accompanied by the application payment is received by the ~~division~~ commission: Provided, That if the ~~division~~ commission reinstates an employer subject to the terms of a reinstatement agreement, the subsequent failure of the employer to make scheduled payments or to pay accrued or future interest in accordance with the reinstatement agreement or to timely file current quarterly reports and to pay current quarterly premiums within the month following the end of the quarter for which the report and payment are due, or to otherwise maintain its account in good standing or, if the reinstatement agreement does not require earlier restoration of the premium deposit, to restore the premium deposit to the required amount by the end of the repayment period shall cause the reinstatement application and the reinstatement agreement to be null, void and of no effect, and the employer ~~shall be~~ is denied the benefits and protection of this chapter effective from the date that ~~such~~ the employer's account originally became delinquent.
          (3) Any employer who fails to maintain its account in good standing with regard to subsequent premium taxes and premium deposits after filing an application for reinstatement and prior to the final resolution of an application for reinstatement by entering into a reinstatement agreement or by payment of the liability in full as provided for in subdivision (1) of this subsection shall cause the reinstatement application to be null, void and of no effect, and the employer shall be denied the benefits and protection of this chapter effective from the date that ~~such~~ the employer's account originally became delinquent.
          (4) Following any failure of an employer to comply with the provisions of a reinstatement agreement, the ~~division~~ commission may make and continue with any of the collection efforts provided for by this chapter or elsewhere in this code even if the employer files another reinstatement application.
          (g) With the exception noted in subsection (h), section one of this article, no employee of an employer required by this chapter to subscribe to the workers' compensation fund shall be denied benefits provided by this chapter because the employer failed to subscribe or because the employer's account is either delinquent or in default.
          (h)(1) The provisions of this section shall not deprive any individual of any cause of action which has accrued as a result of an injury or death which occurred during any period of delinquency not resolved in accordance with the provisions of this article, or subsequent failure to comply with the terms of the repayment agreement.
          (2) Upon withdrawal from the fund or termination of election of any employer, the employer shall be refunded the balance due the employer of its deposit, after deducting all amounts owed by the employer to the workers' compensation fund and other agencies of this state, and the ~~division~~ commission shall notify the employees of ~~such~~ the employer of ~~said~~ the termination in ~~such~~ the manner as the ~~division~~ commission may ~~deem~~ consider best and sufficient.
          (3) Notice to employees ~~in this section~~ provided for in this section shall be given by posting written notice that the employer is defaulted under the compensation law of West Virginia, and in the case of employers required by this chapter to subscribe and pay premiums to the fund, that the defaulted employer is liable to its employees for injury or death, both in workers' compensation benefits and in damages at common law or by statute; and in the case of employers not required by this chapter to subscribe and pay premiums to the fund, but voluntarily electing to do so as ~~herein~~ provided in this article, that neither the employer nor the employees ~~of such employer~~ are protected by ~~said laws~~ the law as to any injury or death sustained after the date specified in ~~said~~ the notice. ~~Such~~ The notice shall be in the form prescribed by the ~~division~~ commission and shall be posted in a conspicuous place at the chief works of the employer, as ~~the same appear~~ it appears in records of the ~~division~~ commission. If ~~said~~ the chief works of the employer cannot be found or identified, ~~then said~~ the notices shall be posted at the front door of the courthouse of the county in which ~~said~~ the chief works are located, according to the ~~division's~~ commission's records. Any person who shall, prior to the reinstatement of ~~said~~ the employer, as ~~hereinbefore~~ provided for in this section, or prior to sixty days after the posting of ~~said~~ the notice, whichever shall first occur, remove, deface or render illegible ~~said~~ the notice, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined one thousand dollars~~, and said~~. The notice shall state this provision upon its face. The ~~division~~ commission may require any sheriff, deputy sheriff, constable or other official of the state of West Virginia, ~~who may be~~ authorized to serve civil process, to post ~~such~~ the notice and to make return thereof of the fact of ~~such~~ the posting to the ~~division~~ commission.~~, and any~~ Any failure of ~~such~~ the officer to post any notice within ten days after he or she ~~shall have~~ has received the ~~same~~ notice from the ~~division~~ commission, without just cause or excuse, ~~shall constitute~~ constitutes a willful failure or refusal to perform a duty required of him or her by law within the meaning of section twenty-eight, article five, chapter sixty-one of this code. Any person actually injured by reason of ~~such~~ the failure ~~shall have~~ has an action against ~~said~~ the official, and upon any official bond he or she may have given, for ~~such~~ the damages as ~~such~~ the person may actually have incurred, but not to exceed, in the case of any surety upon ~~said~~ the bond, the amount of the penalty of ~~said~~ the bond. Any official posting ~~said~~ the notice as ~~herein~~ required ~~shall be~~ in this subdivision is entitled to the same fee as is now or may hereafter be provided for the service of process in suits instituted in courts of record in the state of West Virginia.~~, which~~ The fee shall be paid by the ~~division~~ commission out of any funds at its disposal, but shall be charged by the ~~division~~ commission against the account of the employer to whose delinquency ~~such~~ the notice relates.

§23-2-5a. Collection of premiums from defaulting employers; interest and penalties; civil remedies; creation and enforcement of lien against employer and purchaser; duty of secretary of state to register liens; distraint powers; insolvency proceedings; secretary of state to withhold certificates of dissolution; injunctive relief; bond; attorney fees and costs.

§23-2-5c. Statute of limitations; effective date for new payments; previous payments due not affected.

          For payments due after the effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three, every action or process to collect any premium, premium deposit, interest or penalty due from an employer pursuant to this article by the ~~commissioner~~ executive director shall be brought or issued within ~~five~~ ten years next after the date on which the employer is required by the section imposing the premium, premium deposit, interest or penalty to file a report and pay the amount due thereunder. The limitation provided by this section shall ~~likewise~~ also apply to enforcement of the lien, if any, securing the payment of ~~such~~ the premium, premium deposit, interest or penalty, but shall not apply in the event of fraud or in the event the employer wholly fails to file the report required by the section imposing the premium, premium deposit, interest or penalty. For payments that were due prior to the effective date of this section, there ~~shall continue~~ continues to be no limitation on when actions or processes may be brought or issued.
§23-2-5d. Uncollectible receivables; write-offs
          Notwithstanding any other provision to the contrary, ~~the division, with the approval of the compensation programs performance council,~~ the executive director, with the approval of the board of managers, may write-off any uncollected receivable due under the provisions of this article which ~~the division and the compensation programs performance council deem to be~~ the executive director and the board of managers determine uncollectible.
§23-2-6. Exemption of contributing employers from liability.
          Any employer subject to this chapter who ~~shall subscribe and pay~~ subscribes and pays into the workers' compensation fund the premiums provided by this chapter or who ~~shall elect~~ elects to make direct payments of compensation as ~~herein~~ provided ~~shall~~ in this section is not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing, and during any period in which ~~such~~ the employer ~~shall~~ is not be in default in the payment of ~~such~~ the premiums or direct payments and ~~shall have~~ has complied fully with all other provisions of this chapter. ~~The continuation~~ Continuation in the service of ~~such~~ the employer shall be considered a waiver by the employee and by the parents of any minor employee of the right of action as aforesaid, which the employee or his or her parents would otherwise have: Provided, That in case of employers not required by this chapter to subscribe and pay premiums into the workers' compensation fund, the injured employee has remained in ~~such~~ the employer's service with notice that his or her employer has elected to pay into the workers' compensation fund the premiums provided by this chapter, or has elected to make direct payments as aforesaid.

§23-2-9. Election of employer or employers' group to be self-insured and to provide own system of compensation; exceptions; catastrophe coverage; self administration; rules; penalties; regulation of self-insurers.

          (a) Notwithstanding any provisions of this chapter to the contrary, the following types of employers or employers' groups may apply for permission to self-insure their workers' compensation risk including their risk of catastrophic injuries. ~~Except as provided for in subsection (e) of this section, no employer may self-insure its second injury risk.~~
          (1) The types of employers are:
          (A) Any employer who is of sufficient capability and financial responsibility to ensure the payment to injured employees and the dependents of fatally injured employees of benefits provided for in this chapter at least equal in value to the compensation provided for in this chapter; or
          (B) Any employer of such capability and financial responsibility who maintains its own benefit fund or system of compensation to which its employees are not required or permitted to contribute and whose benefits are at least equal in value to those provided for in this chapter; or
__________(C) Any group of employers who are subject to the same collective bargaining agreement or who are in a collective bargaining group may apply to the commission to collectively self-insure their obligations under this chapter. The employers' group must individually and collectively meet the conditions set forth in paragraph (A) or (B) of this subdivision. There shall be joint and several liability for all groups of employers who choose to self-insure under the provisions of this article.
          (2) In order to be approved for self-insurance status, the employer ~~must~~ shall:
          (A) Have an effective health and safety program at its workplaces; and
          (B) Provide security or bond in an amount and form ~~to be~~ determined by the ~~compensation programs performance council~~ executive director with the approval of the board of managers which shall balance the employer's financial condition based upon an analysis of its audited financial statements and the full accrued value of current liability for future claim payments based upon generally accepted actuarial and accounting principles of the employer's existing and expected liability~~; and~~
          (C) Security or bond which may be in such form as the commissioner and the compensation programs performance council created pursuant to section one, article three, chapter twenty-one-a of this code permits.
          (3) Any employer whose record upon the books of the ~~division~~ commission shows a liability, as determined on an accrued basis against the workers' compensation fund incurred on account of injury to or death of any of the employer's employees, in excess of premiums paid by ~~such~~ the employer, shall not be granted the right, individually and directly or from ~~such~~ the benefit funds or system of compensation, to be self-insured until the employer has paid into the workers' compensation fund the amount of ~~such~~ the excess of liability over premiums paid, including the employer's proper proportion of the liability incurred on account of catastrophes ~~or second injuries~~ as defined in section one, article three of this chapter and charged against ~~such~~ that fund.
          (4) Upon a finding that the employer has met all of the requirements of this section, the employer may be permitted self-insurance status. An annual review of each self-insurer's continuing ability to meet its obligations and the requirements of this section shall be made by the workers' compensation ~~division~~ commission. This review shall include a redetermination of the amount of security or bond which shall be provided by the employer. Failure to provide any new amount or form of security or bond may~~, in the division's discretion,~~ cause the employer's self-insurance status to be terminated by the workers' compensation commission. The security or bond provided by employers prior to the second day of February, one thousand nine hundred ninety-five, shall continue in full force and effect until the performance of the employer's annual review and the entry of any appropriate decision on the amount or form of the employer's security or bond.
          (5) Whenever a self-insured employer ~~shall furnish~~ furnishes security or bond, including replacement and amended bonds and other securities, as ~~security~~ surety to ensure the employer's or guarantor's payment of all obligations under this chapter for which the security or bond was furnished, ~~such~~ the security or bond shall be in the most current form or forms approved and authorized by the ~~division~~ commission for use by the employer or its guarantors, surety companies, banks, financial institutions or others in its behalf for ~~such~~ that purpose.
          (b) An employer or employers' group who self-insures its risk and self-administers its claims shall exercise all authority and responsibility granted to the commission in this chapter and to provide notices of action taken in effectuating the purposes of this chapter to provide benefits to persons who have suffered injuries or diseases covered by this chapter. An employer granted permission to self-insure and self-administer its obligations under this chapter shall at all times be bound and shall comply fully with all of the provisions of this chapter. Furthermore, all of the provisions contained in article four of this chapter pertaining to disability and death benefits are binding on and shall be strictly adhered to by the self-insured employer in its administration of claims presented by employees of the self-insured employer. Claim notices currently generated by the commission on behalf of self-insured employers must be generated and sent by the self-insured employer or its third-party administrator.
__________~~(b)~~ (c) Each self-insured employer shall, on or before the last day of the first month of each quarter, file with the ~~division~~ commission a certified statement of the total gross wages and earnings of all of the employer's employees subject to this chapter for the preceding quarter. Each self- insured employer shall pay into the workers' compensation fund as portions of its self-insured premium tax:
          (1) A sum sufficient to pay the employer's proper portion of the expense of the administration of this chapter;
          (2) A sum sufficient to pay the employer's proper portion of the expense of claims for those employers who are in default in the payment of premium taxes or other obligations;
          (3) A sum sufficient to pay the employer's fair portion of the expenses of the disabled workers' relief fund; ~~and~~
          (4) A sum sufficient to maintain as an advance deposit an amount equal to the previous quarter's payment of each of the foregoing three sums; and
__________(5) A sum as determined by the commission to be sufficient to pay the employer's portion of deficit management fund claim payments.
__________~~(c)~~ (d) Effective the first day of July, two thousand three, and for a period not to exceed two years thereafter, rates shall not be increased more than fifteen percent per year without prior approval of the Legislature's joint committee on government and finance.
__________(e) The required payments to the employer's injured employees or dependents of fatally injured employees as benefits provided for by this chapter including ~~second injury benefits and~~ catastrophic injury benefits, if applicable, ~~shall~~ constitute the remaining portion of the self-insurer's premium tax. Any employer previously self-insured for second injury benefits shall continue to be responsible for payment of those benefits.
          (1) If an employer defaults in the payment of any portion of its self-insured premium taxes, surcharges or assessments, the ~~division~~ commission may, in an appropriate case, determine the full accrued value based upon generally accepted actuarial and accounting principles of the employer's liability including the costs of all awarded claims and of all incurred but not reported claims. The amount so determined may, in an appropriate case, be assessed against the employer. ~~and the division~~ The commission may demand and collect the present value of ~~such~~ the defaulted tax liability. Interest shall accrue upon the demanded amount as provided for in section thirteen of this article until the premium tax is fully paid. Payment of all amounts then due to the ~~division~~ commission and to the employer's employees is a sufficient basis for reinstating the employer to good standing with the fund.
          (2) ~~Such premium~~ Premium tax assessments are special revenue taxes under and according to the provisions of state workers' compensation law and are ~~deemed~~ considered to be tax claims, as priority claims or administrative expense claims according to those provisions under the law provided in the United States bankruptcy code, Title 11 of the United States Code. In addition, as the same was previously intended by the prior provisions of this section, this amendment and reenactment is for the purpose of clarification of the taxing authority of the workers' compensation ~~division~~ commission.
          ~~(d)~~ (f) Each self-insured employer shall elect whether or not to self-insure its catastrophic injury risk as defined in subsection (c), section one, article three of this chapter. A self-insured employer who elects to insure its catastrophic risk through a policy of excess insurance obtained through a private insurance carrier approved by the commission shall provide a copy of the policy to the commission.
          (1) If the employer does not elect to self-insure its catastrophic risk, ~~then~~ the employer shall pay premium taxes for this coverage in the same manner as is provided for in section four of this article and in rules adopted to implement ~~said~~ that section. Until such rules are adopted, the employer's premium taxes shall be determined in accordance with the provisions of chapter one hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one. If the employees of ~~such an~~ that employer suffer injury or death from a catastrophe, ~~then~~ the payment of the resulting benefits shall be made from the catastrophe reserve of the surplus fund provided for in subsection (b), section one, article three of this chapter. ~~Such an~~ An employer's catastrophic liability shall not be included in the liabilities upon which the employer's security or bond is determined in subsection (a) of this section.
          (2) If an otherwise self-insured employer elects not to self-insure its catastrophic risk, ~~then~~ the security or bond required in subsection (a) of this section shall include the liability for the catastrophic risk.
          (e) (1) Any self-insured employer who was, prior to the second day of February, one thousand nine hundred ninety-five, permitted to self-insure its second injury risk as defined in subsection (d), section one, article three of this chapter, may elect to continue to self-insure its second injury risk for so long as it meets the requirements of this chapter. Any employer which was previously permitted to self-insure its second injury risk who then elects to terminate that self- insurance status shall not thereafter be permitted to self-insure its second injury risk.
          ~~(2)~~ (e) For those employers previously permitted to self-insure their second injury risks, the amount of the security or bond required in subsection (a) of this section shall include the liability for that risk. All benefits provided for by this chapter which are awarded to the employer's employees which constitute second injury life awards shall ~~then~~ be paid by the employer and not the ~~division~~ commission.
          (3) (A) For those employers which do not self-insure their second injury risk, the premium tax for second injury coverage shall be determined by the rules which implement section four of this article. Such rules may provide for merit rate adjustments of the amount of premium tax to be paid based upon the accrued costs to be determined under generally accepted accounting principles of second injury benefits paid and to be paid to the employer's employees. Until such rules are adopted, the employer's premium taxes shall be determined in accordance with the provisions of chapter one hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one.
          (B) In case there is a second injury to an employee of any employer making such second injury premium tax payments, the employer shall be liable to pay compensation or expenses arising from or necessitated by the second injury and such compensation and expenses shall be charged against the employer. After the completion of these payments, the employee shall be paid the remainder of the compensation and expenses that would be due for permanent total disability from the second injury reserve of the surplus fund. Such additional compensation and expenses shall not be charged against such employer.
          (f) The ~~compensation programs performance council~~ commission may create, implement, establish and administer a perpetual self-insurance security risk pool of funds, sureties, securities, insurance provided by private insurance carriers or other states' programs, and other property, of both real and personal properties, to secure the payment of obligations of self-insured employers. If ~~such~~ a pool is created, the ~~compensation programs performance council~~ commission shall adopt rules for the organizational plan, participation, contributions and other payments which may be required of self-insured employers under this section. The ~~council, in order to create and fund such a risk pool,~~ executive director, with approval of the board of managers, may adopt a rule authorizing the ~~division~~ commission to assess each self-insured employer in proportion according to each employer's portion of the unsecured obligation and liability or to assess according to some other method provided for by rule which shall properly create and fund ~~such~~ the risk pool to serve the needs of employees, employers and the workers' compensation fund by providing adequate security. The ~~council~~ commission, in ~~funding such~~ establishing a security risk pool, may authorize the ~~division~~ commission to use any assessments, premium ~~tax assessments~~ taxes and revenues and appropriations as may be made available to the ~~division~~ commission.
          (g) Any self-insured employer which has had a period of inactivity due to the nonemployment of employees which results in its reporting of no wages on quarterly reports to the ~~division~~ commission for a period of four or more consecutive quarters shall have its status at the ~~division~~ commission inactivated and shall ~~be required to~~ apply for reactivation to status as a self- insured employer prior to its reemployment of employees. Despite ~~such~~ the inactivation, the self- insured employer shall continue to make payments on all awards for which it is responsible. Upon application for reactivation of its status as an operating self-insured employer, the employer ~~must~~ shall document that it meets the eligibility requirements needed to maintain self-insured status under this section and any rules adopted to implement it. If the employer is unable to requalify and obtain approval for reactivation, the employer shall, effective with the date of employment of any employee, become a subscriber to the workers' compensation fund, but shall continue to be a self- insurer as to the prior period of active status and to furnish security or bond and meet its prior self- insurance obligations.
          (h) In any case under the provisions of this section that ~~shall~~ require the payment of compensation or benefits by an employer in periodical payments and the nature of the case makes it possible to compute the present value of all future payments, ~~then~~ the ~~division~~ commission may, in its discretion, at any time compute and permit to be paid into the workers' compensation fund an amount equal to the present value of all unpaid future payments on the award or awards for which liability exists in trust. Thereafter, ~~such~~ the employer shall be discharged from any further portion of premium tax liability upon ~~such~~ the award or awards and payment of the award or awards shall be assumed by the ~~division~~ commission.
          (i) Any employer subject to this chapter, who ~~shall elect~~ elects to carry the employer's own risk by being self-insured and who has complied with the requirements of this section and of any applicable rules, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after ~~such~~ the election's approval and during the period that the employer is allowed to carry the employer's own risk.
          (j) An employer may not hire any person or group to self-administer claims under this chapter as a third-party administrator unless the person or group has been determined to be qualified to be a third-party administrator by the commission pursuant to rules adopted by the board of managers. Any person or group whose status as a third-party administrator has been revoked, suspended or terminated by the commission shall immediately cease administration of claims and shall not administer claims unless subsequently authorized by the commission.
§23-2-10. Application of chapter to interstate commerce.
          (a) In case any employer within the meaning of this chapter is also engaged in interstate or foreign commerce, and for whom a rule of liability or method of compensation has been established by the Congress of the United States, this chapter ~~shall apply~~ applies to him or her only to the extent that his or her mutual connection with work in this state is clearly separable and distinguishable from his or her interstate work, and to the extent that ~~such~~ the work in this state is clearly separable and distinguishable from his or her interstate work, ~~such~~ the employer ~~shall be~~ is subject to the terms and provisions of this chapter in like manner as all other employers ~~hereunder~~ under this chapter. Payments of premiums shall be on the basis of the payroll of those employees who perform work in this state only.
          (b) Unless and until the Congress of the United States has by appropriate legislation established a rule of liability or method of compensation governing employers and employees engaged in commerce within the purview of the commerce clause of the United States Constitution (article I, section 8), section one of this article ~~shall apply~~ applies without regard to the interstate or intrastate character or nature of the work or business engaged in.
§23-2-11. Partial invalidity of chapter.
          If any employer ~~shall be~~ is adjudicated to be outside the lawful scope of this chapter, the chapter shall not apply to him or her or his or her employee; or if any employee ~~shall be~~ is adjudicated to be outside the lawful scope of this chapter, because of remoteness of his or her work from the hazard of his or her employer's work, ~~any such~~ the adjudication shall not impair the validity of this chapter in other respects, and in every ~~such~~ case an accounting in accordance with the justice of the case shall be had of moneys received. If the provisions of this chapter for the creation of the workers' compensation fund, or the provisions of this chapter making the compensation to the employee provided in it exclusive of any other remedy on the part of the employee, ~~shall be~~ is held invalid, the entire chapter shall be ~~thereby~~ invalidated and an accounting according to the justice of the case shall be had of money received. In other respects an adjudication of invalidity of any part of this chapter shall not affect the validity of the chapter as a whole or any part ~~thereof~~ of this chapter.

§23-2-12. Effect of repeal or invalidity of chapter on action for damages.

§23-2-13. Interest on past-due payments; reinstatement agreements.

Effective the first day of July, one thousand nine hundred ninety-nine, payments unpaid on the date on which due and payable shall immediately begin bearing interest as specified ~~hereinafter~~ in this section. The interest rate per annum for each fiscal year shall be calculated as the greater of the ~~division's~~ commission's current discount rate or the prime rate plus four percent, each rounded to the nearest whole percent. The discount rate shall be determined by the ~~compensation programs performance council~~ board of managers on an annual basis. The prime rate shall be the rate published in the Wall Street Journal on the last business day of the ~~division's~~ commission's prior fiscal year reflecting the base rate on corporate loans posted by at least seventy-five percent of the nation's thirty largest banks. This same rate of interest shall be applicable to all reinstatement agreements entered into by the ~~commissioner~~ commission pursuant to section five of this article on and after the effective date of this section: Provided, That if an employer enters into a subsequent reinstatement agreement within seven years of the date of the first agreement, the interest rate shall be eighteen percent per annum. Interest shall be compounded quarterly until payment plus accrued interest is received by the ~~commissioner~~ commission: Provided, however, That on and after the date of execution of a reinstatement agreement, for determining future interest on any past-due premium, premium deposit, and past compounded interest thereon, any reinstatement agreement entered into by the ~~commissioner~~ commission shall provide for a simple rate of interest, determined in accordance with the provisions of this section which ~~shall~~ is not be subject to change during the life of the reinstatement agreement for ~~such~~ the future interest. Interest collected pursuant to this section shall be paid into the workers' compensation fund: Provided further, That in no event shall the rate of interest charged a political subdivision of the state or a volunteer fire department pursuant to this section exceed ten percent per annum.

§23-2-14. Sale or transfer of business; attachment of lien for premium, etc., payments due; criminal penalties for failure to pay; creation and avoidance or elimination of lien; enforcement of lien; successor liability.

          (a) If any employer ~~shall sell~~ sells or otherwise ~~transfer~~ transfers substantially all of the employer's assets, so as to give up substantially all of the employer's capacity and ability to continue in the business in which the employer has previously engaged ~~then~~:
          (1) ~~Such~~ The employer's premium taxes, premium deposits, interest and other payments owed to the ~~division shall be~~ commission are due and owing to the ~~division~~ commission upon the execution of the agreement of sale or other transfer;
          (2) Any repayment agreement entered into by the employer with the ~~division~~ commission pursuant to section five of this article ~~shall terminate~~ terminates upon the execution of the ~~aforesaid~~ agreement of sale or other transfer and all amounts owed to the ~~division~~ commission but not yet paid ~~shall~~ become due; and
          (3) Upon execution of an agreement of sale or other transfer, as aforesaid, the ~~division~~ commission shall continue to have a lien, as provided for in section five-a of this article, against all of the remaining property of the employer as well as all of the sold or transferred assets~~, which~~. The lien ~~shall constitute~~ constitutes a personal obligation of the employer.
          (b) Notwithstanding any provisions of section five-a of this article to the contrary, in the event that a new employer acquires by sale or other transfer or assumes all or substantially all of a predecessor employer's assets ~~then~~:
          (1) Any liens for payments owed to the ~~division~~ commission for premium taxes, premium deposits, interest or other payments owed to the ~~division~~ commission by the predecessor employer shall be extended to the successor employer;
          (2) Any liens held by the ~~division~~ commission against the predecessor employer's property shall be extended to all of the assets of the successor employer; and
          (3) Liens acquired in the manner described in subdivisions (1) and (2) of this subsection ~~shall be~~ are enforceable by the ~~division~~ commission to the same extent as provided for the enforcement of liens against the predecessor employer in section five-a of this article.
          (c) Notwithstanding the provisions of section five-a of this article to the contrary, if any employer as described in subsection (a) of this section shall ~~sell~~ sells or otherwise ~~transfer~~ transfers a portion of the employer's assets so as to affect the employer's capacity to do business ~~then~~:
          (1) ~~Such~~ The employer's premium taxes, premium deposits, interest and other payments owed to the ~~division shall be~~ commission are due and owing to the ~~division~~ commission upon the execution of the agreement of sale or other transfer;
          (2) Any repayment agreement entered into by the employer with the ~~division~~ commission pursuant to section five of the article ~~shall terminate~~ terminates upon the execution of the aforesaid agreement of sale or other transfer and all amounts owed to the ~~division~~ commission but not yet paid shall become due; and
          (3) Upon execution of an agreement of sale or other transfer, as aforesaid, the ~~division~~ commission shall continue to have a lien, as provided for in section five-a of this article, against all of the remaining property of the employer as well as all the sold or transferred assets~~, which~~. The lien ~~shall constitute~~ constitutes a personal obligation of the employer.
          (d) If an employer subject to subsection (a), (b) or (c) of this section pays to the ~~division~~ commission, prior to the execution of an agreement of sale or other transfer, a sum sufficient to retire all of the indebtedness that the employer would owe at the time of the execution, ~~then~~ the ~~division~~ commission shall issue a certificate to the employer stating that the employer's account is in good standing with the ~~division~~ commission and that the assets may be sold or otherwise transferred without the attachment of the ~~division's~~ commission's lien. An agreement of sale or other transfer may provide for the creation of an escrow account into which the employers shall pay the full amount owed to the ~~division~~ commission. The subsequent timely payment of that full amount to the ~~division shall operate~~ commission operates to place both employers in good standing with the ~~division~~ commission to the extent of the predecessor employer's liabilities retroactive to the date of sale or other transfer. In the event that the employer would not owe any sum to the ~~division~~ commission on the aforesaid date of execution, ~~then~~ a certificate shall also be issued to the employer upon the employer's request stating that the employer's account is in good standing with the ~~division~~ commission and that the assets may be sold or otherwise transferred without the attachment of the ~~division's~~ commission's lien.
          (e) As used in this article, the term 'assets' means all property of whatever type in which the employer has an interest including, but not limited to, good will, business assets, customers, clients, contracts, access to leases such as the right to sublease, assignment of contracts for the sale of products, operations, stock of goods or inventory, accounts receivable, equipment or transfer of substantially all of its employees.
          (f) The transfer of any assets of the employer ~~shall be~~ are presumed to be a transfer of all or substantially all of the assets if the transfer affects the employer's capacity to do business. The presumption can be overcome upon petition presented and an administrative hearing in accordance with section fifteen of this article and in consideration of the factors ~~thereunder~~ under that section.
          (g) The ~~foregoing~~ provisions of this section are expressly intended to impose upon ~~such~~ successor employers the duty of obtaining from the ~~division~~ commission or predecessor employer, prior to the date of ~~such~~ the acquisition, a valid 'certificate of good standing to transfer a business or business assets' to verify that the predecessor employer's account with the ~~division~~ commission is in good standing.

§23-2-15. Liabilities of successor employer; waiver of payment by commission; assignment of predecessor employer's premium rate to successor.

          (a) At any time prior to or following the acquisition described in subsection (a), (b) or (c), section fourteen of this article, the buyer or other recipient may file a certified petition with the ~~division~~ commission requesting that the ~~division~~ commission waive the payment by the buyer or other recipient of premiums, premium deposits, interest and imposition of the modified rate of premiums attributable to the predecessor employer or other penalty, or any combination thereof. The ~~division~~ commission shall review the petition by considering the following seven factors ~~set forth below~~:
          (1) The exact nature of the default;
          (2) The amount owed to the ~~division~~ commission;
          (3) The solvency of the fund;
          (4) The financial condition of the buyer or other recipient;
          (5) The equities exhibited towards the fund by the buyer or other recipient during the acquisition process;
          (6) The potential economic impact upon the state and the specific geographic area in which the buyer or other recipient is to be or is located, if the acquisition were not to occur; and
          (7) Whether the assets are purchased in an arms-length transaction.
          Unless requested by a party or by the ~~division~~ commission, no hearing need be held on the petition. However, any decision made by the ~~division~~ commission on the petition shall be in writing and shall include appropriate findings of fact and conclusions of law. ~~Such~~ The decision shall be effective ten days following notice to the public of the decision unless an objection is filed in the manner ~~herein~~ provided in this section. ~~Such notice~~ Notice shall be given by the ~~division's~~ commission's filing with the secretary of state, for publication in the state register, of a notice of the decision. At the time of filing the notice of its decision, the ~~division~~ commission shall also file with the secretary of state a true copy of the decision. The publication shall include a statement advising that any person objecting to the decision must file, within ten days after publication of the notice, a verified response with the ~~division~~ commission setting forth the objection and the basis ~~therefor~~ for this objection. If any ~~such~~ objection is filed, the ~~division~~ commission shall hold an administrative hearing, conducted pursuant to article five, chapter twenty-nine-a of this code, within fifteen days of receiving the response unless the buyer or other recipient consents to a later hearing. Nothing in this subsection shall be construed to be applicable to the seller or other transferor or to affect in any way a proceeding under sections five and five-a of this article.
          (b) In the factual situations set forth in subsection (a), (b) or (c), section fourteen of this article, if the predecessor's modified rate of premium tax, as calculated in accordance with section four of this article, is greater than the manual rate of premium tax, as calculated in accordance with ~~said~~ that section, for other employers in the same class or group, ~~then,~~ and if the new employer does not already have a modified rate of premium, it shall also assume the predecessor employer's modified rates for the payment of premiums as determined under sections four and five of this article until sufficient time has elapsed for the new employer's experience record to be combined with the experience record of the predecessor employer so as to calculate the new employer's own modified rate of premium tax.
§23-2-16. Acceptance or assignment of premium rate.
          (a) If a new corporate employer which is not subject to the provisions of section fifteen of this article is created by the officers or shareholders of a preexisting corporate employer and if the new corporate employer and the preexisting corporate employer ~~are~~: (1) ~~Managed~~ Are managed by the same, or substantially the same, management personnel; ~~and~~ (2) have a common ownership by at least forty percent of each corporation's shareholders; ~~and~~ (3) is are in the same class or group as determined by the ~~commissioner~~ executive director under the provisions of section four of this article; and (4) if the preexisting corporate employer's account is in good standing with the ~~commissioner~~ commission, ~~then,~~ at the time the new corporate employer registers with the ~~commissioner~~ commission, the new corporate employer may request that the ~~commissioner~~ commission assign to it the same rate of payment of premiums as that assigned to the preexisting corporate employer. If the ~~commissioner~~ executive director decides that the granting of ~~such a~~ the request is in keeping with his or her fiduciary obligations to the workers' compensation fund, ~~then~~ the ~~commissioner~~ executive director may grant the request of the employer.
          (b) If a new corporate employer which is not subject to the provisions of section fifteen of this article is created by the officers or shareholders of a preexisting corporate employer and if the new corporate employer and the preexisting corporate employer ~~are~~: (1) ~~Managed~~ Are managed by the same, or substantially the same, management personnel; ~~and~~ (2) have a common ownership by at least forty percent of each corporation's shareholders; and (3) is are in the same class or group as determined by the ~~commissioner~~ executive director under the provisions of section four of this article, ~~then,~~ at any time within one year of the new corporate employer's registration with the ~~commissioner~~ commission, the ~~commissioner~~ executive director may decide that, in keeping with his or her fiduciary obligations to the workers' compensation fund, the new corporate employer shall be assigned the same rate of payment of premiums as that assigned to the preexisting corporate employer at any time within the aforesaid one-year period: Provided, That if the new corporate employer fails to reveal to the ~~commissioner~~ commission on the forms provided by the ~~commissioner~~ commission that its situation meets the factual requirements of this section, ~~then~~ the ~~commissioner~~ commission may demand payment from the new corporate employer in an amount sufficient to eliminate the deficiency in payments by the new corporate employer from the date of registration to the date of discovery plus interest thereon as provided for by section thirteen of this article. The ~~commissioner~~ commission may ~~utilize the~~ use its powers ~~given to the commissioner in~~ pursuant to section five-a of this article to collect the amount due.

§23-2-17. Employer right to hearing; content of petition; appeal.

          Notwithstanding any provision in this chapter to the contrary and notwithstanding any provision in section five, article five, chapter twenty-nine-a of this code to the contrary, in any situation where an employer objects to a decision or action of the ~~commissioner~~ executive director made under the provisions of this article, ~~then such~~ the employer ~~shall be~~ is entitled to file a petition demanding a hearing upon ~~such~~ the decision or action ~~which~~. The petition must be filed within thirty days of the employer's receipt of notice of the disputed ~~commissioner's~~ executive director's decision or action or, in the absence of such receipt, within sixty days of the date of the ~~commissioner's~~ executive director's making ~~such~~ the disputed decision or taking ~~such~~ the disputed action, ~~such~~ the time limitations being hereby declared to be a condition of the right to litigate ~~such~~ the decision or action and ~~hence~~ therefor jurisdictional.
          The employer's petition shall clearly identify the decision or action disputed and the bases upon which the employer disputes the decision or action. Upon receipt of ~~such~~ a petition, the ~~commissioner~~ executive director shall schedule a hearing which shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. An appeal from a final decision of the ~~commissioner~~ executive director shall be taken in accord with the provisions of articles five and six of ~~said~~ that chapter: Provided, That all ~~such~~ appeals shall be taken to the circuit court of Kanawha County.
ARTICLE 2A. SUBROGATION.
§23-2A-1. Subrogation; limitations; effective date.
          (a) Where a compensable injury or death is caused, in whole or in part, by the act or omission of a third party, the injured worker or, if he or she is deceased or physically or mentally incompetent, his or her dependents or personal representative ~~shall be~~ are entitled to compensation under the provisions of this chapter and shall not by having received ~~same~~ compensation be precluded from making claim against ~~said~~ the third party.
          (b) Notwithstanding the provisions of subsection (a) of this section, if an injured worker, his or her dependents or his or her personal representative makes a claim against ~~said~~ the third party and recovers any sum ~~thereby~~ for the claim, the ~~commissioner~~ commission or a self-insured employer shall be allowed statutory subrogation with regard to medical benefits paid as of the date of the recovery.: ~~Provided~~, That under no circumstances shall any moneys received by the commissioner or self-insured employer as subrogation to medical benefits expended on behalf of the injured or deceased worker exceed fifty percent of the amount received from the third party as a result of the claim made by the injured worker, his or her dependents or personal representative, after payment of attorney's fees and costs, if such exist. The commission or self-insured employer shall permit the deduction from the amount received a reasonable attorney's fee. It is the duty of the injured worker, his or her dependents, his or her personal representative, or his or her attorney to notify the commission and the employer when the claim is filed against the third party.
          (c) In the event that an injured worker, his or her dependents or personal representative makes a claim against a third party, there shall be, and there is hereby created, a statutory subrogation lien upon ~~such~~ the moneys received which shall exist in favor of the ~~commissioner~~ commission or self-insured employer. Any injured worker, his or her dependents or personal representative who receives moneys in settlement in any manner of a claim against a third party ~~shall remain~~ remains subject to the subrogation lien until payment in full of the amount permitted to be subrogated under subsection (b) of this section is paid.
          (d) The right of subrogation granted by the provisions of this section shall not attach to any claim arising from a right of action which arose or accrued, in whole or in part, prior to the effective date of ~~this article~~ the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three.
ARTICLE 2B. OCCUPATIONAL SAFETY AND HEALTH PROGRAMS.

§23-2B-1. Occupational safety and health activities; voluntary compliance; consultative services.

          In order to carry out the purposes of this chapter and to encourage voluntary compliance with occupational safety and health laws, regulations, rules and standards and to promote more effective workplace health and safety programs, the ~~commissioner~~ executive director acting in conjunction with the ~~performance council created pursuant to section one, article three, chapter twenty-one-a of this code,~~ board of managers shall:
          (a) Develop greater knowledge and interest in the causes and prevention of industrial accidents, occupational diseases and related subjects through:
          (1) Research, conferences, lectures and the use of public communications media;
          (2) The collection and dissemination of accident and disease statistics; and
          (3) The publication and distribution of training and accident prevention materials, including audio and visual aids;
          (b) Provide consultative services for employers on safety and health matters and prescribe procedures which will permit any employer to request a special inspection or investigation, focused on specific problems or hazards in the place of employment of the employer or to request assistance in developing a plan to correct such problems or hazards, which will not directly result in a citation and civil penalty; and
          (c) Place emphasis, in the research, education and consultation program, on development of a model for providing services to groups of small employers in particular industries and their employees and for all employers whose experience modification factor for rate-setting purposes is in excess of the criteria established by the ~~compensation programs performance council~~ board of managers.

§23-2B-2. Mandatory programs; safety committees; requirements; rules; exceptions.

          (a) Based upon and to the extent authorized by criteria established by the ~~compensation programs performance council~~ executive director, the ~~commissioner~~ commission is authorized to conduct special inspections or investigations focused on specific problems or hazards in the workplace with or without the agreement of the employer. The ~~commissioner~~ executive director shall issue a report on his or her findings and shall furnish a copy of the report to the employer and to any bargaining unit representing the employees of the employer. The ~~commissioner~~ executive director may share information obtained or developed pursuant to this article with other governmental agencies.
          (b) For any employer whose experience modification factor exceeds the criteria established by the ~~compensation programs performance council~~ board of managers, the ~~commissioner~~ executive director may require the employer to establish a safety committee composed of representatives of the employer and the employees of the employer.
          (c) In carrying out the provisions of this article, the ~~commissioner and the compensation programs performance council~~ executive director shall promulgate rules which shall include, but are not limited to, the following provisions:
          (1) Prescribing the membership of the committees, training, frequency of meetings, recordkeeping and compensation of employee representatives on safety committees; and
          (2) Prescribing the duties and functions of safety committees which include, but are not limited to:
          (A) Establishing procedures for workplace safety inspections; and for investigating job- related accidents, illnesses and deaths; and
          (B) Evaluating accident and illness prevention programs.
          (d) An employer that is a member of a multiemployer group operating under a collective bargaining agreement that contains provisions regulating the formation and operation of a safety committee that meets or exceeds the minimum requirements of this section ~~shall be~~ is considered to have met the requirements of this section.
          (e) It is not the purpose of this article to either supercede the federal Occupational Health and Safety Act program, federal Mine Safety and Health Act program or to create a state counterpart to ~~this program~~ these programs.

§23-2B-3. Premium rate credits; qualified loss management program; loss management firms; penalties; rules.

          (a) The ~~commissioner, in conjunction with the compensation programs performance council, is authorized to~~ executive director may establish by rule a premium credit program for certain employers. The program ~~shall be~~ is applicable solely to regular subscribers to the workers' compensation fund and not to self-insurers. Participation in any premium credit program ~~shall be~~ is voluntary and no employer ~~shall be~~ is required to participate.
          (b) The program ~~shall apply~~ applies a prospective credit to the premium rate of a subscribing employer who participates in a qualified loss management program. The prospective credit ~~shall be~~ is given for a period of up to three years: Provided, That the employer remains in the program for a corresponding period of time.
          (c) The rule shall specify the requirements of a qualified loss management program and shall include a requirement that a recognized loss management firm participate in the program. A loss management firm shall be recognized if it has demonstrated an ability to significantly reduce workers' compensation losses for its client employers by implementing a loss control management program. The amount of credit against premium rates that may be allowed by the ~~commissioner~~ executive director shall vary from firm to firm and shall be primarily determined by the loss reduction success experienced by all of the subscribing employers of the sponsoring loss management firm over a period of time to be determined by the ~~commissioner~~ executive director.
          (d) A credit ~~shall be~~ is applied to the employer's premium rate for up to three years. The amount of the credit applied to the first year is based on the credit factor assigned to the loss management firm on the date the employer subscribes to the program. The amount of the credit applied to the second and third years shall be based on the credit factor assigned to the loss management firm and in effect on each first day of July of the pertinent year: Provided, That the applicable credit is halved in the third year.
          (e) The employer may terminate participation in the program upon three years of continuous participation in the program without penalty. Sooner termination may result in a penalty being applied to the employer's premium rate.
          (f) An employer who has subscribed to an existing program of a qualified loss management firm prior to the effective date of this section ~~shall be~~ is subject to a reduction in credit as follows:
          (1) Participation for one year or less shall result in credit for the full three years;
          (2) Participation for more than one year but less than two years shall result in a credit for two years;
          (3) Participation for two years or more but less than three years shall result in a credit for one year; and
          (4) Participation for three years or more shall result in no credit.
          (g) This section shall not become effective until the ~~commissioner, in conjunction with the compensation programs performance council,~~ executive director promulgates an appropriate rule to implement the section's provisions.
ARTICLE 3. WORKERS' COMPENSATION FUND.

§23-3-1. Compensation fund; surplus fund; catastrophe and catastrophe payment defined; compensation by employers.

          (a) The ~~commissioner~~ commission shall establish a workers' compensation fund from the premiums and other funds paid thereto by employers, as ~~herein~~ provided in this section, for the benefit of employees of employers who have paid the premiums applicable to ~~such~~ the employers and have otherwise complied fully with the provisions of section five, article two of this chapter, and for the benefit, to the extent elsewhere in this chapter set out, of employees of employers who have elected, under section nine, article two of this chapter, to make payments into the surplus fund ~~hereinafter~~ provided for in this section, and for the benefit of the dependents of all ~~such~~ the employees, and for the payment of the administration expenses of this chapter.
          (b) A portion of all premiums that ~~shall be~~ are paid into the workers' compensation fund by subscribers not electing to carry their own risk under section nine, article two of this chapter ~~shall be~~ are set aside to create and maintain a surplus fund to cover the catastrophe hazard ~~the second injury hazard~~ and all losses not otherwise specifically provided for in this chapter. The percentage to be set aside ~~shall be~~ is determined pursuant to the rules adopted to implement section four, article two of this chapter and shall be in an amount sufficient to maintain a solvent surplus fund. All interest earned on investments by the workers' compensation fund, which is attributable to the surplus fund, ~~shall be~~ is credited to the surplus fund.
          (c) A catastrophe is hereby defined as an accident in which three or more employees are killed or receive injuries, which, in the case of each individual, consist of: Loss of both eyes or the sight thereof; or loss of both hands or the use thereof; or loss of both feet or the use thereof; or loss of one hand and one foot or the use thereof. The aggregate of all medical and hospital bills and other costs and all benefits payable on account of a catastrophe is ~~hereby~~ defined as 'catastrophe payment'. In case of a catastrophe to the employees of an employer who is an ordinary premium- paying subscriber to the fund, or to the employees of an employer who, having elected to carry the employer's own risk under section nine, article two of this chapter, has ~~heretofore~~ previously elected, or may ~~hereafter~~ later elect, to pay into the catastrophe reserve of the surplus fund under the provisions of that section, ~~then~~ the catastrophe payment arising from ~~such~~ the catastrophe shall not be charged against, or paid by, ~~such~~ the employer but shall be paid from the catastrophe reserve of the surplus fund.
          (d) ~~(1) If~~ For all awards made on or after the effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, the following provisions relating to second injury are not applicable. For awards made before the date specified in this section, if an employee who has a definitely ascertainable physical impairment, caused by a previous occupational injury, occupational pneumoconiosis or occupational disease, irrespective of its compensability, becomes permanently and totally disabled through the combined effect of ~~such~~ the previous injury and a second injury received in the course of and as a result of his or her employment, the employer shall be chargeable only for the compensation payable for ~~such~~ the second injury: Provided, That in addition to ~~such~~ the compensation, and after the completion of the payments ~~therefor~~, for the employee shall be paid the remainder of the compensation that would be due for permanent total disability out of a special reserve of the surplus fund ~~known as the second injury reserve~~ created in the manner ~~hereinbefore~~ previously set forth. The procedure by which the claimant's request for a permanent total disability award under this section is ruled upon shall require that the issue of the claimant's degree of permanent disability first be determined. Thereafter, by means of a separate order, a decision shall be made as to whether the award ~~shall be~~ is a second injury award under this subsection or a permanent total disability award to be charged to the employer's account or to be paid directly by the employer if the employer has elected to be self-insured under the provisions of section nine, article two of this chapter.
          (2) If an employee of an employer, where the employer has elected to carry his or her own risk under section nine, article two of this chapter, and is permitted not to make payments into the second injury reserve of surplus fund under the provisions of said section, has a definitely ascertainable physical impairment caused by a previous occupational injury, occupational pneumoconiosis or occupational disease, irrespective of its compensability, and becomes permanently and totally disabled from the combined effect of such previous injury and a second injury received in the course of and as a result of his or her employment, the employee shall be granted an award of total permanent disability and his or her employer shall, upon order of the division, compensate the said employee in the same manner as if the total permanent disability of the employee had resulted from a single injury while in the employ of such employer.
          (e) Employers electing, as ~~herein~~ provided in this chapter, to compensate individually and directly their injured employees and their fatally injured employees' dependents shall do so in the manner prescribed by the ~~division~~ commission and shall make all reports and execute all blanks, forms and papers as directed by the ~~division~~ commission, and as provided in this chapter.

§23-3-1a. Transfer of silicosis fund to workers' compensation fund; claims under former article six.

          Ten percent of the funds collected and held as the workers' compensation silicosis fund under the provisions of former article six of this chapter, shall be transferred to and made a part of the workers' compensation fund provided for in the preceding section, and the balance ~~thereof~~ of the silicosis fund shall be refunded to the subscribers ~~thereto~~ to the fund in proportion to their contributions to the ~~same~~ fund under the provisions of ~~said~~ former article six; and all awards ~~heretofore~~ previously made under the provisions of article six shall be paid from the workers' compensation fund, or directly by the employer, under order of the ~~commissioner~~ executive director, if the employer has elected to carry his or her own risk under the provisions of section nine, article two of this chapter: Provided, That notwithstanding the repeal of ~~said~~ article six, the provisions ~~thereof shall be~~ of the article are applicable in all cases of the disease or death, because of silicosis, or an employee whose last exposure to silicon dioxide dust has occurred prior to the effective date of this section, whose claim or application for compensation benefits for silicosis, or that of his or her dependent, has not been filed prior to ~~said~~ that date, and whose employer, at the time of ~~such~~ the exposure, was subject to the provisions of ~~said~~ article six of this chapter.
§23-3-1b. Workers' compensation deficit management fund.
          (a) The Legislature hereby finds and declares that there is a substantial actuarial deficit in the workers' compensation fund in excess of two billion four hundred million dollars on a discounted value basis. The Legislature further finds and declares that this deficit endangers the current financial viability of the workers' compensation system and the ability of the system to deliver benefits and services in the future.
          The Legislature further declares that it is the purpose of this section to identify and segregate the deficit existing in the workers' compensation fund as of the effective date of this section and provide for a separate funding mechanism to retire the claim liability transferred to the deficit management fund.
          (b) There is hereby created in the state treasury a special revenue fund known as the 'Workers' Compensation Deficit Management Fund'. The fund shall operate as a special fund whereby all deposits and payments thereto do not expire to the general revenue fund, but remain in the fund and be available for expenditure in succeeding fiscal years. Moneys in the fund shall be expended for the purpose of management and ultimately the elimination of the workers' compensation actuarial deficit. This fund shall consist of moneys transferred from the workers' compensation funds including the coal-workers' pneumoconiosis fund provided for in section eight, article four-b of this chapter, and all moneys, less the premium deposits of regular subscribing employers, that exists as of the first day of July, two thousand three, in the workers' compensation fund and the catastrophe fund established under section one, article three of this chapter, revenue from any addition premium, surcharges or assessments provided for in section four, article two of this chapter, and any other moneys or funds given, appropriated or otherwise designated or accruing to it and all earnings.
          (c) All liabilities related to claims awarded for all years prior to the first day of July, two thousand three, shall be paid out of the deficit management fund. The deficit management fund shall exist solely for the purpose of receiving funds and making payments related to liabilities on claims awarded prior to the first day of July, two thousand three. The assets contained in and assessment income received by the fund shall not be used for any other purposes: Provided, That the commission is permitted to borrow from the deficit management fund sufficient funds to meet the short-term obligations on claims filed on or after the first day of July, two thousand three: Provided, however, That the funds borrowed shall be repaid to the deficit management fund with interest accrued at the simple rate of six percent per annum by no later than the thirtieth day of June, two thousand four. All liabilities transferred to the deficit management fund cease to be an obligation and liability of the workers' compensation fund and become the obligation of the deficit management fund.
          (d) As payments of any type become due on claims awarded prior to the first day of July, two thousand three, the executive director shall request payment of the same out of the deficit management fund account. Upon request of the executive director, the investment management board shall provide the commission an accounting of the income, to include investment income.
          (e) The commission shall administer the deficit management fund and may establish rules for the operation of the fund to ensure proper and timely delivery of payments in claims transferred to the fund for payment. The rules shall be promulgated on or before the first day of August, two thousand three.
§23-3-2. Custody, investment and disbursement of funds.
          The state treasurer ~~shall be~~ is the custodian of the workers' compensation fund and the workers' compensation deficit management fund and all premiums, deposits or other moneys ~~paid thereto~~ payable to each fund shall be deposited in the state treasury to the credit of the ~~workers' compensation~~ fund for which it was assessed, transferred or collected in the manner prescribed in section five, article two of this chapter. The workers' compensation fund shall consist of the premiums and deposits provided by this chapter and ~~all interest accruing thereto upon investments and deposits in the state depositories, and~~ any other moneys or funds ~~which may be~~ given, appropriated or otherwise designated or accruing ~~thereto~~ to it and all earnings. ~~Said~~ The fund shall be a separate and distinct fund ~~and shall be so kept~~ upon the books and records of the auditor and treasurer and the state depositories in which any part is deposited. Disbursements therefrom shall be made upon requisitions signed by the ~~secretary and approved by the commissioner of the bureau of employment programs~~ executive director. The deficit management fund shall consist of the transfers provided for in section one-b of this article, revenue from any premium, surcharges or assessments provided for in section four, article two of this chapter and any other moneys or funds which may be given, appropriated or otherwise designated or accruing to it and all earnings. The fund shall be a separate and distinct fund upon the books and records of the auditor and treasurer and the state depositories in which any part is deposited. Disbursements therefrom shall be made upon requisitions signed by the executive director.
__________The board of investments shall have authority to invest the surplus, reserve or other moneys belonging to the fund in the bonds of the United States, notes or bonds of this state, bridge revenue bonds of this state issued prior to the first day of January, one thousand nine hundred thirty-nine, or any bonds issued to refund the same, bonds of any county, city, town, village or school district of the state. No such investment shall be made, nor any investment sold or otherwise disposed of without the concurrence of a majority of all members of the board of investments. It shall be the duty of every county, school district or municipality issuing any bonds, to offer the same in writing to the board of investments, prior to advertising the same for sale, and the board of investments shall, within fifteen days after receipt of such offer, accept the same and purchase such bonds, or any portion thereof at par and accrued interest, or reject such offer. All securities purchased by the board of investments for investment for the workers' compensation fund shall be placed in the hands of the state treasurer as the custodian thereof, and shall be his duty to keep and account for the same as he keeps and accounts for other securities of the state, and to collect the interest thereon as the same becomes due and payable and the principal when the same is due. No notes, bonds or other securities shall be purchased by the board of investments until and unless the attorney general shall investigate the issuance of such notes, bonds or securities and shall give a written opinion to the board that the same have been regularly issued according to the constitution and the laws of this state, which opinion, if such notes, bonds or securities be purchased, shall be filed with the treasurer with such bonds or securities.
          The deficit management fund and the workers' compensation fund are participant plans as defined in section one, article six, chapter twelve of this code and as such are subject to the provisions of section nine-a of said article and shall be invested by the investment management board in accordance with said article.
§23-3-3. Investment of surplus funds required.
          Whenever there ~~shall be~~ is in the state treasury any funds belonging to the workers' compensation fund or the deficit management fund not likely, in the opinion of the ~~commissioner~~ commission, to be required for immediate use, it ~~shall be~~ is the duty of the ~~board of investments~~ investment management board to invest the ~~same~~ funds as prescribed in ~~the preceding~~ section two of this article. Whenever it ~~may become~~ becomes necessary or expedient to use any of the invested funds ~~so invested~~, the ~~board of investments~~ investment management board, at the direction of the ~~commissioner~~ commission, shall collect, sell or otherwise realize upon any investment to the amount considered necessary or expedient to use.

§23-3-5. Authorization to require the electronic invoices and transfers.

§23-4-1. To whom compensation fund disbursed; occupational pneumoconiosis and other occupational diseases included in 'injury' and 'personal injury'; definition of occupational pneumoconiosis and other occupational diseases.

          (a) Subject to the provisions and limitations elsewhere in this chapter ~~set forth~~, the ~~commissioner~~ commission shall disburse the workers' compensation fund to the employees of employers subject to this chapter, ~~which employees~~ who have received personal injuries in the course of and resulting from their covered employment or to the dependents, if any, of ~~such~~ the employees in case death has ensued, according to the provisions hereinafter made; and also for the expenses of the administration of this chapter, as provided in section two, article one of this chapter: Provided, That in the case of any employees of the state and its political subdivisions, including: Counties; municipalities; cities; towns; any separate corporation or instrumentality established by one or more counties, cities or towns as permitted by law; any corporation or instrumentality supported in most part by counties, cities or towns; any public corporation charged by law with the performance of a governmental function and whose jurisdiction is coextensive with one or more counties, cities or towns; any agency or organization established by the department of mental health for the provision of community health or mental retardation services and which is supported, in whole or in part, by state, county or municipal funds; board, agency, commission, department or spending unit, including any agency created by rule of the supreme court of appeals, who have received personal injuries in the course of and resulting from their covered employment, ~~such~~ the employees are ineligible to receive compensation while ~~such~~ the employees are at the same time and for the same reason drawing sick leave benefits. ~~Such~~ The state employees may only use sick leave for nonjob-related absences consistent with sick leave ~~utilization~~ use and may draw workers' compensation benefits only where there is a job-related injury. This proviso shall not apply to permanent benefits: Provided, however, That ~~such~~ the employees may collect sick leave benefits until receiving temporary total disability benefits. The division of personnel shall promulgate rules pursuant to chapter of this code relating to use of sick leave benefits by employees receiving personal injuries in the course of and resulting from covered employment: Provided further, That in the event an employee is injured in the course of and resulting from covered employment and ~~such~~ the injury results in lost time from work, and ~~such~~ the employee for whatever reason uses or obtains sick leave benefits and subsequently receives temporary total disability benefits for the same time period, ~~such~~ the employee may be restored sick leave time taken by him or her as a result of the compensable injury by paying to his or her employer the temporary total disability benefits received or an amount equal to the temporary total disability benefits received. ~~Such~~ The employee shall be restored sick leave time on a day-for-day basis which corresponds to temporary total disability benefits paid to the employer: And provided further, That since the intent of this ~~paragraph~~ subsection is to prevent an employee of the state or any of its political subdivisions from collecting both temporary total disability benefits and sick leave benefits for the same time period, nothing ~~herein may be construed to prevent~~ in this subsection prevents an employee of the state or any of its political subdivisions from electing to receive either sick leave benefits or temporary total disability benefits but not both.
          (b) For the purposes of this chapter, the terms 'injury' and 'personal injury' shall ~~include~~ includes occupational pneumoconiosis and any other occupational disease, as hereinafter defined, and the ~~commissioner~~ commission shall ~~likewise~~ also disburse the workers' compensation fund to the employees of ~~such~~ the employers in whose employment ~~such~~ the employees have been exposed to the hazards of occupational pneumoconiosis or other occupational disease and in this state have contracted occupational pneumoconiosis or other occupational disease, or have suffered a perceptible aggravation of an existing pneumoconiosis or other occupational disease, or to the dependents, if any, of ~~such~~ the employees, in case death has ensued, according to the provisions hereinafter made: Provided, That compensation shall not be payable for the disease of occupational pneumoconiosis, or death resulting ~~therefrom~~ from the disease, unless the employee has been exposed to the hazards of occupational pneumoconiosis in the state of West Virginia over a continuous period of not less than two years during the ten years immediately preceding the date of his or her last exposure to such hazards, or for any five of the fifteen years immediately preceding the date of ~~such~~ his or her last exposure. An application for benefits on account of occupational pneumoconiosis shall set forth the name of the employer or employers and the time worked for each~~, and the commissioner~~. The commission may allocate to and divide any charges resulting from such claim among the employers by whom the claimant was employed for as much as sixty days during the period of three years immediately preceding the date of last exposure to the hazards of occupational pneumoconiosis. The allocation shall be based upon the time and degree of exposure with each employer.
          (c) For the purposes of this chapter, disability or death resulting from occupational pneumoconiosis, as defined in ~~the immediately succeeding sentence,~~ subsection (d) of this section shall be treated and compensated as an injury by accident.
          (d) Occupational pneumoconiosis is a disease of the lungs caused by the inhalation of minute particles of dust over a period of time due to causes and conditions arising out of and in the course of the employment. The term 'occupational pneumoconiosis' ~~shall include~~ includes, but ~~shall~~ is not be limited to, such diseases as silicosis, anthracosilicosis, coal worker's pneumoconiosis, commonly known as black lung or miner's asthma, silico-tuberculosis (silicosis accompanied by active tuberculosis of the lungs), coal worker's pneumoconiosis accompanied by active tuberculosis of the lungs, asbestosis, siderosis, anthrax and any and all other dust diseases of the lungs and conditions and diseases caused by occupational pneumoconiosis which are not specifically designated ~~herein~~ in this section meeting the definition of occupational pneumoconiosis set forth in ~~the immediately preceding sentence~~ this subsection.
          (e) In determining the presence of occupational pneumoconiosis, X-ray evidence may be considered but shall not be accorded greater weight than any other type of evidence demonstrating occupational pneumoconiosis.
          (f) For the purposes of this chapter, occupational disease means a disease incurred in the course of and resulting from employment. No ordinary disease of life to which the general public is exposed outside of the employment ~~shall be~~ is compensable except when it follows as an incident of occupational disease as defined in this chapter. Except in the case of occupational pneumoconiosis, a disease shall be ~~deemed~~ considered to have been incurred in the course of or to have resulted from the employment only if it is apparent to the rational mind, upon consideration of all the circumstances: (1) That there is a direct causal connection between the conditions under which work is performed and the occupational disease; (2) that it can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it does not come from a hazard to which workmen would have been equally exposed outside of the employment; (5) that it is incidental to the character of the business and not independent of the relation of employer and employee; and (6) that it ~~must appear~~ appears to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.
          (g) No award shall be made under the provisions of this chapter for any occupational disease contracted prior to the first day of July, one thousand nine hundred forty-nine. An employee shall be ~~deemed~~ considered to have contracted an occupational disease within the meaning of this ~~paragraph~~ subsection if the disease or condition has developed to such an extent that it can be diagnosed as an occupational disease.
          (h) Claims for occupational disease as ~~hereinbefore~~ defined in subsection (g) of this section, except occupational pneumoconiosis, shall be processed in like manner as claims for all other personal injuries.
§23-4-1a. Report of injuries by employee.
          Every employee who sustains an injury subject to this chapter, or his or her representative, shall immediately on the occurrence of ~~such~~ the injury or as soon thereafter as practicable give or cause to be given to the employer or any of the employer's agents a written notice of the occurrence of ~~such~~ the injury, with like notice or a copy ~~thereof~~ of the notice to the workers' compensation ~~division~~ commission stating in ordinary language the name and address of the employer, the name and address of the employee, the time, place, nature and cause of the injury, and whether temporary total disability has resulted ~~therefrom~~ from the injury. ~~Such~~ The notice shall be given personally to the employer or any of the employer's agents, or may be sent by certified mail addressed to the employer at the employer's last known residence or place of business. ~~Such~~ The notice may be given to the workers' compensation ~~division~~ commission by mail.
§23-4-1b. Report of injuries by employers.
          It ~~shall be~~ is the duty of every employer to report to the ~~commissioner~~ commission every injury sustained by any person in his or her employ. ~~Such~~ The report shall be on forms prescribed by the ~~commissioner~~ commission; and shall be made within five days of the employer's receipt of the employee's notice of injury, required by section one-a of this article, or within five days after the employer has been notified by the ~~commissioner~~ commission that a claim for benefits has been filed on account of such injury, whichever is sooner, and, notwithstanding any other provision of this chapter to the contrary, ~~such~~ the five-day period may not be extended by the ~~commissioner~~ commission, but the employer ~~shall have~~ has the right to file a supplemental report at a later date. The employer's report of injury shall include a statement as to whether or not, on the basis of the information ~~then~~ available, the employer disputes the compensability of the injury or objects to the payment of temporary total disability benefits in connection ~~therewith~~ with the injury. ~~Such~~ The statements by the employer shall not prejudice the employer's right thereafter to contest the compensability of the injury, or to object to any subsequent finding or award, in accordance with article five of this chapter; but an employer's failure to make timely report of an injury as required ~~herein~~ in this section, or statements in ~~such~~ the report to the effect that the employer does not dispute the compensability of the injury or object to the payment of temporary total disability benefits for ~~such~~ the injury, shall be ~~deemed~~ considered to be a waiver of the employer's right to object to any interim payment of temporary total disability benefits paid by the ~~commissioner~~ commission with respect to any period from the date of injury to the date of the ~~commissioner's~~ commission's receipt of any objection made ~~thereto~~ to the interim payments by the employer.

§23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of medical benefits; payments of benefits during protest; right of commission to collect payments improperly made.

          (a) In any instance when the employer, including self-insured employers, has objected to compensability or the commission questions compensability of any claim, the commission shall conduct an investigation of the facts and circumstances surrounding the injury. No later than fifteen days from submission of the report of injury, the commission shall make a decision on the compensability of the injury. If the investigation is not completed within the fifteen-day period, the commission shall make a determination on the compensability of the claim based on the information available. In any claim for benefits under this chapter, the workers' compensation ~~division~~ commission shall determine whether the claimant has sustained a compensable injury within the meaning of section one of this article and ~~the division shall~~ enter an order giving all parties immediate notice of ~~such~~ the decision.
          (1) The ~~division~~ commission may enter an order conditionally approving the claimant's application if the ~~division~~ commission finds that obtaining additional medical evidence or evaluations or other evidence related to the issue of compensability would aid the ~~division~~ commission in making a correct final decision. Benefits shall be paid during the period of conditional approval; however, if the final decision is one that rejects the claim, ~~then~~ any ~~such~~ the payments shall be considered an overpayment. The ~~division~~ commission or self-insured employer may only recover the amount of ~~such an~~ the overpayment as provided for in subsection (i) of this section.
          (2) In making a determination regarding the compensability of a newly filed claim or upon a filing for the reopening of a prior claim pursuant to the provisions of section sixteen of this article based upon an allegation of recurrence, reinjury, aggravation or progression of the previous compensable injury or in the case of a filing of a request for any other benefits under the provisions of this chapter, the ~~division~~ commission shall consider the date of the filing of the claim for benefits for a determination of the following:
          (A) Whether the claimant had a scheduled shutdown beginning within one week of the date of the filing; or
          (B) Whether the claimant received notice within sixty days of the filing that his or her employment position was to be eliminated, including, but not limited to, the claimant's worksite, a layoff or the elimination of the claimant's employment position; or
          (C) Whether the claimant is receiving unemployment compensation benefits at the time of the filing; or
          (D) Whether the claimant has received unemployment compensation benefits within sixty days of the filing.
          In the event of an affirmative finding upon any of these four factors, ~~then~~ ~~such~~ the finding shall be given probative weight in the overall determination of the compensability of the claim or of the merits of the reopening request.
          (3) Any party ~~shall have the right to~~ may object to the order of the ~~division~~ commission and obtain an evidentiary hearing as provided in section one, article five of this chapter.
          (b) Where it appears from the employer's report, or from proper medical evidence, that a compensable injury will result in a disability which will last longer than three days as provided in section five of this article, the ~~division~~ commission may immediately enter an order commencing the payment of temporary total disability benefits to the claimant in the amounts provided for in sections six and fourteen of this article, and the payment of the expenses provided for in subsection (a), section three of this article, relating to ~~said~~ the injury, without waiting for the expiration of the thirty-day period during which objections may be filed to ~~such~~ the findings as provided in section one, article five of this chapter. The ~~division~~ commission shall enter an order commencing the payment of temporary total disability or medical benefits within fifteen days of receipt of either the employee's or employer's report of injury, whichever is received sooner, and also upon receipt of either a proper physician's report or any other information necessary for a determination. The ~~division~~ commission shall give to the parties immediate notice of any order granting temporary total disability or medical benefits. Any order of compensability or reopening of the claim shall provide to the claimant and subscriber employer notice of any medical or vocational evaluation of the claimant and may identify by name, address and telephone number any return-to-work specialist who may work independently with the claimant, employer or other professional in having the claimant return to work as soon as reasonably possible in light of the claimant's injury, skills, employment history and ability to safely return to work.
          (c) The ~~division~~ commission may enter orders granting temporary total disability benefits upon receipt of medical evidence justifying the payment of ~~such~~ the benefits. ~~In no claim shall~~ The ~~division~~ commission may not enter an order granting prospective temporary total disability benefits for a period of more than ninety days: Provided, That when the ~~division~~ commission determines that the claimant remains disabled beyond the period specified in the prior order granting temporary total disability benefits, the ~~division~~ commission shall enter an order continuing the payment of temporary total disability benefits for an additional period not to exceed ninety days and shall give immediate notice to all parties of ~~such~~ the decision.
          (d) Upon receipt of the first report of injury in claim, the ~~division~~ commission shall request from the employer or employers any wage information necessary for determining the rate of benefits to which the employee is entitled. If an employer does not furnish the ~~division~~ commission with this information within fifteen days from the date the ~~division~~ commission received the first report of injury in the case, the employee shall be paid temporary total disability benefits for lost time at the rate the ~~division~~ commission obtains from reports made pursuant to ~~section eleven, article ten, chapter twenty-one-a of this code~~ subsection (b), section two, article two of this chapter. If no ~~such~~ the wages have been reported, ~~then~~ the ~~division~~ commission shall make ~~such~~ the payments at the rate the ~~division~~ commission finds would be justified by the usual rate of pay for the occupation of the injured employee. The ~~division~~ commission shall adjust the rate of benefits both retroactively and prospectively upon receipt of proper wage information. The ~~division~~ commission shall have access to all wage information in the possession of any state agency.
          (e) Subject to the limitations set forth in section sixteen of this article, upon a finding of the ~~division~~ commission or a self-insured employer that a claimant who has sustained a previous compensable injury which has been closed, ~~by any order of the division,~~ or by the claimant's return to work, suffers further temporary total disability or requires further medical or hospital treatment resulting from the compensable injury, the ~~division~~ commission or the self-insured employer shall immediately ~~enter an order commencing~~ commence the payment of temporary total disability benefits to the claimant in the amount provided for in sections six and fourteen of this article, and the expenses provided for in subsection (a), section three of this article, relating to ~~said~~ the disability, without waiting for the expiration of the thirty-day period during which objections may be filed ~~to such findings as provided in section one, article five of this chapter~~. The ~~division~~ commission or self-insured employer shall give immediate notice to the parties of its order.
          (f) Where the employer is a subscriber to the workers' compensation fund under the provisions of article three of this chapter, and upon the findings aforesaid, the ~~division~~ commission shall mail all workers' compensation checks paying temporary total disability benefits directly to the claimant and not to the employer for delivery to the claimant.
          (g) Where the employer has elected to carry its own risk under section nine, article two of this chapter, and upon the findings aforesaid, the ~~division~~ commission or self-insured employer shall immediately ~~issue a pay order directing the employer to~~ pay ~~such~~ the amounts ~~as are~~ due the claimant for temporary total disability benefits. A copy of the order or notice shall be sent to the claimant. The self-insured employer shall commence such payments by mailing or delivering the payments directly to the employee within ten days of the date of the receipt of the pay order by the employer. If the self-insured employer believes that its employee is entitled to benefits, the employer may start payments before receiving a pay order from the division.
          (h) In the event that an employer files a timely objection to any order of the division with respect to compensability, or any order denying an application for modification with respect to temporary total disability benefits, or with respect to those expenses outlined in subsection (a), section three of this article, the division shall continue to pay to the claimant such benefits and expenses during the period of such disability. Where it is subsequently found by the division that the claimant was not entitled to receive such temporary total disability benefits or expenses, or any part thereof, so paid, the division shall, when the employer is a subscriber to the fund, credit said employer's account with the amount of the overpayment; and, when the employer has elected to carry its own risk, the division shall refund to such employer the amount of the overpayment. The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division to the surplus fund created in section one, article three of this chapter.
          ~~(i)~~ (h) When the employer has protested the compensability or applied for modification of a temporary total disability benefit award or expenses and the final decision in ~~such~~ that case determines that the claimant was not entitled to ~~such~~ the benefits or expenses, the amount of ~~such~~ benefits or expenses ~~shall be~~ are considered overpaid. The ~~division~~ commission or self-insured employer may only recover the amount of ~~such~~ overpaid benefits or expenses by withholding, in whole or in part, ~~as determined by the division~~ future ~~permanent partial~~ disability benefits payable to the individual in the same or other claims and credit ~~such~~ the amount against the overpayment until it is repaid in full.
          ~~(j)~~ (i) In the event that the ~~division~~ commission finds that, based upon the employer's report of injury, the claim is not compensable, the ~~division~~ commission shall provide a copy of ~~such~~ the employer's report to the claimant in addition to the order denying the claim.
          (j) If a claimant is receiving benefits paid through a wage replacement plan, salary continuation plan or other benefit plan provided by the employer to which the employee has not contributed, and that plan does not provide an offset for a temporary total disability benefits to which the claimant is also entitled under this chapter as a result of the same injury or disease, the employer shall notify the commission of the duplication of the benefits paid to the claimant. Upon receipt of the notice, the commission shall reduce the temporary total disability benefits provided under this chapter, by an amount sufficient to ensure that the claimant does not receive monthly benefits in excess of the amount provided by the employer's plan or the temporary total disability benefit, whichever is greater: Provided, That this subsection does not apply to benefits being paid under the terms and conditions of a collective bargaining agreement.
§23-4-1d. Method and time of payments for permanent disability.
          (a) If the ~~division~~ commission makes an award for permanent partial or permanent total disability, the ~~division~~ commission or self-insured employer shall start payment of benefits by mailing or delivering the amount due directly to the employee within fifteen days from the date of the award: Provided, That the ~~division~~ commission may withhold payment of the portion of the award that is the subject of the ~~following~~ subsection (b) of this section until seventy-seven days have expired without an objection being filed.
          (b) ~~On and after the first day of July, one thousand nine hundred ninety-five, whenever~~ Whenever the ~~division~~ commission, self-insured employer or the office of judges or the workers' compensation appeal board enters an order granting the claimant a permanent total disability award and an objection or petition for appeal is ~~then~~ filed by the employer or the ~~division~~ commission, the ~~division~~ commission or self-insured employer shall begin the payment of monthly permanent total disability benefits. However, any payment for a back period of benefits from the onset date of total permanent disability to the date of the award shall be limited to a period of twelve months of benefits. If, after all litigation is completed and the time for the filing of any further objections or appeals to the award has expired, and the award of permanent total disability benefits is upheld, ~~then~~ the claimant shall receive the remainder of benefits due to him or her based upon the onset date of permanent total disability that was finally determined.
          (c) If the claimant is ~~then~~ owed any additional payment of back permanent total disability benefits, ~~then~~ the ~~division~~ commission of sel-insured employer shall not only pay the claimant the sum owed but shall also add thereto interest at the simple rate of six percent per annum from the date of the initial award granting the total permanent disability to the date of the final order upholding the award. In the event that an intermediate order directed an earlier onset date of permanent total disability than was found in the initial award, the interest-earning period for that additional period shall begin upon the date of the intermediate award. Any interest payable shall be charged to the account of the employer or shall be paid by the employer if it has elected to carry its own risk.
          (d) If a timely protest to the award is filed, as provided in section one or nine, article five of this chapter, the ~~division~~ commission or self-insured employer shall continue to pay to the claimant ~~such~~ benefits during the period of ~~such~~ the disability unless it is subsequently found that the claimant was not entitled to receive the benefits, or any part thereof, ~~so paid,~~ in which event the ~~division~~ commission shall, where the employer is a subscriber to the fund, credit ~~said~~ the employer's account with the amount of the overpayment; and, where the employer has elected to carry the employer's own risk, the ~~division~~ commission shall refund to ~~such~~ the employer the amount of the overpayment. The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the ~~division~~ commission to the surplus fund created by section one, article three of this chapter. If the final decision in any case determines that a claimant was not lawfully entitled to benefits paid to him or her pursuant to a prior decision, ~~such~~ the amount of ~~benefits so~~ benefit paid shall be ~~deemed~~ considered overpaid. The ~~division~~ commission may only recover ~~such~~ that amount by withholding, in whole or in part, as determined by the ~~division~~ commission, future permanent partial disability benefits payable to the individual in the same or other claims and credit ~~such~~ the amount against the overpayment until it is repaid in full.
          (e) An award for permanent partial disability shall be made as expeditiously as possible and in accordance with the time frame requirements promulgated by the board of managers.
__________(f) If a claimant is receiving benefits paid through a retirement plan, wage replacement plan, salary continuation plan or other benefit plan provided by the employer to which the employee has not contributed, and that plan does not provide an offset for a permanent total disability benefits to which the claimant is also entitled under this chapter as a result of the same injury or disease, the employer shall notify the commission of the duplication of the benefits paid to the claimant. Upon receipt of the notice, the commission shall reduce the permanent total disability benefits provided under this chapter, by an amount sufficient to ensure that the claimant does not receive monthly benefits in excess of the amount provided by the employer's plan or the permanent total disability benefit, whichever is greater: Provided, That this subsection does not apply to benefits being paid under the terms and conditions of a collective bargaining agreement.

§23-4-1e. Temporary total disability benefits not to be paid for periods of penitentiary or jail confinement; denial of workers' compensation benefits for injuries or disease incurred while confined.

(a) Notwithstanding any provision of this code to the contrary, no person shall be jurisdictionally entitled to temporary total disability benefits for that period of time in excess of three days during which ~~such~~ that person is ~~incarcerated~~ confined in a penitentiary or state correctional center, county or regional jail: Provided, That ~~incarceration~~ confinement shall not affect the claimant's eligibility for payment of expenses: Provided, however, That this subsection is applicable only to injuries and diseases incurred prior to any period of ~~incarceration~~ confinement. Upon release from confinement, the payment of benefits for the remaining period of temporary total disability shall be made if justified by the evidence and authorized by order of the ~~commissioner~~ commission.
(b) Notwithstanding any provision of this code to the contrary, no person ~~incarcerated~~ confined in a ~~penitentiary or~~ state correctional center, county or regional jail who suffers injury or a disease in the course of and resulting from his or her work during ~~such~~ the period of ~~incarceration~~ confinement which work is imposed by the administration of the ~~penitentiary or~~ state correctional center, county or regional jail and is not suffered during ~~such~~ the person's usual employment with his or her usual employer when not ~~incarcerated~~ confined shall receive benefits under the provisions of this chapter for ~~such~~ the injury or disease.

§23-4-1g. Weighing of evidence; rule of liberality.

          (a) Resolution of any issue raised in administering this chapter, for all awards made on or after the effective date of the amendment and re-enactment of this section during the regular session of the Legislature in the year two thousand three, shall be based on a weighing of all evidence pertaining to the issue and a finding that a preponderance of the evidence supports the chosen manner of resolution. The process of weighing evidence shall include, but not be limited to, an assessment of the relevance, credibility, materiality and reliability that the evidence possesses in the context of the issue presented. Under no circumstances will an issue be resolved by allowing certain evidence to be dispositive simply because it is reliable and is most favorable to a party's interests or position. There is a rule of liberality requiring that if after weighing all of the evidence regarding an issue in which a claimant has an interest, there is a finding that an equal amount of evidentiary weight exists favoring conflicting matters for resolution, the resolution that is most consistent with the claimant's position will be adopted.
          (b) The number of witnesses or physicians' statements for or against a party is not alone the test of credibility or weight of the evidence. If warranted by the evidence, a fact finder may believe one witness against a number of witnesses testifying differently. The tests are: How truthful is the witness and how convincing is his or her evidence, and which witnesses and which evidence appears to the fact finder as being the most accurate and otherwise trustworthy in light of all the evidence and circumstances shown.
          (c) In no case shall the rule of liberality be used in the application of law to the facts of a case nor in determining the constitutionality of this act.

§23-4-2. Disbursement where injury is self-inflicted or intentionally caused by employer; legislative declarations and findings; 'deliberate intention' defined.

          (a) Notwithstanding anything ~~hereinbefore or hereinafter~~ contained in this chapter, no employee or dependent of any employee is entitled to receive any sum from the workers' compensation fund ~~or to direct compensation from any employer making the election and receiving the permission mentioned in section nine, article two of this chapter~~, from a self-insured employer, or otherwise under the provisions of this chapter, on account of any personal injury to or death to any employee caused by a self-inflicted injury or the intoxication of ~~such~~ the employee.
          (b) For the purpose of this chapter, the ~~commissioner~~ commission may cooperate with the office of miners' health, safety and training and the state division of labor in promoting general safety programs and in formulating rules to govern hazardous employments.
          ~~(b)~~ (c) If injury or death result to any employee from the deliberate intention of his or her employer to produce ~~such~~ the injury or death, the employee, the widow, widower, child or dependent of the employee has the privilege to take under this chapter, and has a cause of action against the employer, as if this chapter had not been enacted, for any excess of damages over the amount received or receivable under this chapter.
          ~~(c)~~ (d) (1) It is declared that enactment of this chapter and the establishment of the workers' compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as ~~herein~~ expressly provided in this chapter, and to establish a system which compensates even though the injury or death of an employee may be caused by his or her own fault or the fault of a coemployee; that the immunity established in sections six and six-a, article two of this chapter is an essential aspect of this workers' compensation system; that the intent of the Legislature in providing immunity from common lawsuit was and is to protect those so immunized from litigation outside the workers' compensation system except as ~~herein~~ expressly provided in this chapter; that, in enacting the immunity provisions of this chapter, the Legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of willful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter.
          (2) The immunity from suit provided under this section and under section six-a, article two of this chapter may be lost only if the employer or person against whom liability is asserted acted with 'deliberate intention'. This requirement may be satisfied only if:
          (i) It is proved that ~~such~~ the employer or person against whom liability is asserted acted with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee. This standard requires a showing of an actual, specific intent and may not be satisfied by allegation or proof of: (A) Conduct which produces a result that was not specifically intended; (B) conduct which constitutes negligence, no matter how gross or aggravated; or (C) willful, wanton or reckless misconduct; or
          (ii) The trier of fact determines, either through specific findings of fact made by the court in a trial without a jury, or through special interrogatories to the jury in a jury trial, that all of the following facts are proven:
          (A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
          (B) That the employer had a subjective realization and an appreciation of the existence of ~~such~~ the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by ~~such~~ the specific unsafe working condition;
          (C) That ~~such~~ the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of ~~such~~ the employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
          (D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, ~~such~~ the employer nevertheless thereafter exposed an employee to ~~such~~ the specific unsafe working condition intentionally; and
          (E) That ~~such employee so exposed~~ the employee exposed suffered serious injury or death as a direct and proximate result of ~~such~~ the specific unsafe working condition.
          (iii) In cases alleging liability under the provisions of paragraph (ii) of this subdivision:
          (A) No punitive or exemplary damages shall be awarded to the employee or other plaintiff;
          (B) Notwithstanding any other provision of law or rule to the contrary, and consistent with the legislative findings of intent to promote prompt judicial resolution of issues of immunity from litigation under this chapter, the court shall dismiss the action upon motion for summary judgment if it finds, pursuant to rule 56 of the rules of civil procedure that one or more of the facts required to be proved by the provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this subdivision do not exist, and the court shall dismiss the action upon a timely motion for a directed verdict against the plaintiff if after considering all the evidence and every inference legitimately and reasonably raised thereby most favorably to the plaintiff, the court determines that there is not sufficient evidence to find each and every one of the facts required to be proven by the provisions of subparagraphs (A) through (E), inclusive, paragraph (ii) of this subdivision; and
          (C) The provisions of this paragraph and of each subparagraph thereof are severable from the provisions of each other subparagraph, subsection, section, article or chapter of this code so that if any provision of a subparagraph of this paragraph is held void, the remaining provisions of this act and this code remain valid.
          ~~(d)~~ (e) The reenactment of this section in the regular session of the Legislature during the year one thousand nine hundred eighty-three does not in any way affect the right of any person to bring an action with respect to or upon any cause of action which arose or accrued prior to the effective date of ~~such~~ the reenactment.

§23-4-3. Schedule of maximum disbursements for medical, surgical, dental and hospital treatment; legislative approval; guidelines; preferred provider agreements; charges in excess of scheduled amounts not to be made; required disclosure of financial interest in sale or rental of medically related mechanical appliances or devices; promulgation of rules to enforce requirement; consequences of failure to disclose; contract by employer with hospital, physician, etc., prohibited; criminal penalties for violation; payments to certain providers prohibited; medical cost and care programs; payments; interlocutory orders.

          (a) The workers' compensation ~~division~~ commission shall establish and alter from, time to time, as the ~~division may determine to be~~ commission determines appropriate, a schedule of the maximum reasonable amounts to be paid to health care providers, providers of rehabilitation services, providers of durable medical and other goods and providers of other supplies and medically related items or other persons, firms or corporations for the rendering of treatment or services to injured employees under this chapter. The ~~division~~ commission also, on the first day of each regular session and also from time to time, as the ~~division~~ commission may consider appropriate, shall submit the schedule, with any changes thereto, to the Legislature. ~~The promulgation of the schedule is not subject to the legislative rule-making review procedures established in sections nine through sixteen, article three, chapter twenty-nine-a of this code.~~
          The ~~division~~ commission shall disburse and pay from the fund for ~~such~~ personal injuries to ~~such~~ the employees ~~as may be~~ who are entitled ~~thereto hereunder~~ to the benefits under this chapter as follows:
          (1) ~~Such sums~~ Sums for health care services, rehabilitation services, durable medical and other goods and other supplies and medically related items as may be reasonably required. The ~~division~~ commission shall determine that which is reasonably required within the meaning of this section in accordance with the guidelines developed by the health care advisory panel pursuant to section three-b of this article: Provided, That nothing ~~herein~~ in this section shall prevent the implementation of guidelines applicable to a particular type of treatment or service or to a particular type of injury before guidelines have been developed for other types of treatment or services or injuries: Provided, however, That any guidelines for utilization review which are developed in addition to the guidelines provided for in said section may be ~~utilized~~ use by the ~~division~~ commission until superseded by guidelines developed by the health care advisory panel pursuant to said section. Each health care provider who seeks to provide services or treatment which are not within any ~~such~~ guideline shall submit to the ~~division~~ commission specific justification for the need for ~~such~~ the additional services in the particular case and the ~~division~~ commission shall have the justification reviewed by a health care professional before authorizing ~~any such~~ the additional services. The ~~division is authorized to~~ commission may enter into preferred provider and managed care agreements.
          (2) Payment for health care services, rehabilitation services, durable medical and other goods and other supplies and medically related items authorized under this subsection may be made to the injured employee or to the person, firm or corporation who or which has rendered ~~such~~ the treatment or furnished health care services, rehabilitation services, durable medical or other goods or other supplies and items, or who has advanced payment for ~~same~~ them, as the ~~division may deem~~ commission considers proper, but no ~~such~~ payments or disbursements shall be made or awarded by the ~~division~~ commission unless duly verified statements on forms prescribed by the ~~division shall be~~ commission have been filed with the ~~division~~ commission within ~~two years~~ six months after the rendering of ~~such~~ the treatment or the delivery of such goods, supplies or items or within ninety days of a subsequent compensability ruling if a claim is initially rejected: Provided, That no payment ~~hereunder~~ under this section shall be made unless ~~such~~ a verified statement shows no charge for or with respect to ~~such~~ the treatment or for or with respect to any of the items specified ~~above~~ in this subdivision has been or will be made against the injured employee or any other person, firm or corporation.~~, and when~~ When an employee covered under the provisions of this chapter is injured in the course of and as a result of his or her employment and is accepted for health care services, rehabilitation services, or the provision of durable medical or other goods or other supplies or medically related items, the person, firm or corporation rendering ~~such~~ the treatment ~~is hereby prohibited from making~~ may not make any charge or charges ~~therefor~~ for the treatment or with respect ~~thereto~~ to the treatment against the injured employee or any other person, firm or corporation which would result in a total charge for the treatment rendered in excess of the maximum amount set forth therefor in the ~~division's~~ commission's schedule ~~established as aforesaid~~.
          (3) Any pharmacist filling a prescription for medication for a workers' compensation claimant shall dispense a generic brand of the prescribed medication if a generic brand exits. If a generic brand does not exist, ~~then~~ the pharmacist may dispense the name brand. In the event that a physician wishes to prescribe the use of the name brand of a given prescription medication, ~~then~~ he or she must indicate in his or her own handwriting on the prescription order form that the brand name medication is to be issued. In the event that a claimant wishes to receive the name brand medication in lieu of the generic brand and if the physician has not indicated that the brand name is required, ~~then~~ the claimant may receive the name brand medication but, in that event, the claimant ~~will be~~ is personally liable for the difference in costs between the generic brand medication and the brand name medication.
          (4) In the event that a claimant elects to receive health care services from a health care provider from outside of the state of West Virginia and if that health care provider refuses to abide by and accept as full payment the reimbursement made by the workers' compensation ~~division~~ commission pursuant to the schedule of maximum reasonable amounts of fees authorized by subsection (a) of this section, ~~then,~~ with the exceptions noted below, the claimant ~~will be~~ is personably liable for the difference between the scheduled fee and the amount demanded by the out- of-state health care provider.
          (A) In the event of an emergency where there is an urgent need for immediate medical attention in order to prevent the death of a claimant or to prevent serious and permanent harm to the claimant, if the claimant receives the emergency care from an out-of-state health care provider who refuses to accept as full payment the scheduled amount, ~~then that~~ the claimant ~~will~~ is not be personally liable for the difference between the amount scheduled and the amount demanded by the health care provider. Upon the claimant's attaining a stable medical condition and being able to be transferred to either a West Virginia health care provider or an out-of-state health care provider who has agreed to accept the scheduled amount of fees as payment in full, if ~~such~~ the claimant refuses to seek the specified alternative health care providers, ~~then~~ he or she ~~will be~~ is personally liable for the difference in costs between the scheduled amount and the amount demanded by the health care provider for services provided after attaining stability and being able to be transferred.
          (B) In the event that there is no health care provider reasonably near to the claimant's home who is qualified to provide the claimant's needed medical services ~~and~~ who is either located in the state of West Virginia or who has agreed to accept as payment in full the scheduled amounts of fees, ~~then~~ the ~~division~~ commission, upon application by the claimant, may authorize the claimant to receive medical services from another health care provider. ~~and such~~ The claimant ~~shall~~ is not be personally liable for the difference in costs between the scheduled amount and the amount demanded by the health care provider.
          (b) No employer shall enter into any contracts with any hospital, its physicians, officers, agents or employees to render medical, dental or hospital service or to give medical or surgical attention ~~therein~~ in the hospital to any employee for injury compensable within the purview of this chapter, and no employer shall permit or require any employee to contribute, directly or indirectly, to any fund for the payment of ~~such~~ the medical, surgical, dental or hospital service within ~~such~~ the hospital for ~~such~~ the compensable injury: Provided, That any employer that provides a managed health care plan for his or her employees may require an injured employee to use health care providers authorized by the managed health care plan for care and treatment of compensable injuries. Any employer violating this section ~~shall be~~ is liable in damages to the employer's employees as provided in section eight, article two of this chapter, and any employer or hospital or agent or employee thereof violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not less than one hundred dollars nor more than one thousand dollars or by ~~imprisonment~~ confinement in a county or regional jail not exceeding one year, or both: Provided, That the ~~foregoing~~ provisions of this subsection shall not be ~~deemed~~ determined to prohibit an employer from participating in a preferred provider organization or program or a health maintenance organization or managed care organization or other medical cost containment relationship with the providers of medical, hospital or other health care: Provided, however, That nothing in this section shall be ~~deemed~~ determined to restrict the right of a claimant to select his or her initial health care provider for treatment of a compensable injury or disease. ~~Should such~~ If a claimant thereafter ~~wish~~ wishes to change his or her health care provider and if his or her employer has established and maintains a managed health care program consisting of a preferred provider organization or program, or a health maintenance organization, ~~then~~ the claimant shall select a new health care provider through ~~such~~ the managed care program. Moreover, if the ~~division~~ commission enters into an agreement which has been approved by the ~~compensation programs performance council~~ board of managers with a preferred provider organization or program, a health maintenance organization or other health care delivery organization or organizations, ~~then~~ if a claimant seeks to change his or her initial choice of health care provider and if the claimant's employer does not provide access to such an organization as part of the employer's general health insurance benefit, ~~then~~ the claimant shall be provided with a new health care provider from the ~~division's~~ commission's preferred provider organization or program, health maintenance organization or other health care delivery organization or organizations available to him or her.
          (c) When an injury has been reported to the ~~division~~ commission by the employer without protest, the ~~division may pay, or order an employer who or which made the election and who or which received the permission mentioned in section nine, article two of this chapter to~~ commission or self-insured employer may pay, within the maximum amount provided by schedule established ~~by the division as aforesaid~~ in this section, bills for health care services without requiring the injured employee to file an application for benefits.
          (d) The ~~division~~ commission or self-insured employer shall provide for the replacement of artificial limbs, crutches, hearing aids, eyeglasses and all other mechanical appliances provided in accordance with this section which later wear out, or which later need to be refitted because of the progression of the injury which caused the ~~same~~ devices to be originally furnished, or which are broken in the course of and as a result of the employee's employment. The fund or self-insured employer shall pay for these devices, when needed, notwithstanding any time limits provided by law.
          (e) No payment shall be made to a health care provider who is suspended or terminated under the terms of section three-c of this article except as provided in subsection (c) of ~~said~~ that section.
          (f) The ~~division is authorized to~~ commission may engage in and contract for medical cost containment programs, medical case management programs and utilization review programs. Payments for these programs shall be made from the supersedeas reserve of the surplus fund. Any order issued pursuant to any ~~such~~ the program shall be interlocutory in nature until an objecting party has exhausted all review processes provided for by the ~~division~~ commission.
          (g) Notwithstanding the ~~foregoing~~ provisions of this section, the ~~division~~ commission may establish fee schedules, make payments and take other actions required or allowed pursuant to article twenty-nine-d, chapter sixteen of this code.
§23-4-3b. Creation of health care advisory panel.
          The ~~commissioner~~ commission shall establish a health care advisory panel consisting of representatives of the various branches and specialties among health care providers in this state. There shall be a minimum of five members of the health care advisory panel who shall receive reasonable compensation for their services and reimbursement for reasonable actual expenses. Each member of this panel shall be provided appropriate professional or other liability insurance, without additional premium, by the state board of risk and insurance management created pursuant to article twelve, chapter twenty-nine of this code. The panel shall:
          (a) Establish guidelines for the health care which is reasonably required for the treatment of the various types of injuries and occupational diseases within the meaning of section three of this article;
          (b) Establish protocols and procedures for the performance of examinations or evaluations performed by physicians or medical examiners pursuant to sections seven-a and eight of this article;
          (c) Assist the ~~commissioner~~ commission in establishing guidelines for the evaluation of the care provided by health care providers to injured employees for purposes of section three-c of this article;
          (d) Assist the ~~commissioner~~ commission in establishing guidelines ~~as to~~ regarding the anticipated period of disability for the various types of injuries pursuant to subsection (b), section seven-a of this article; and
          (e) Assist the ~~commissioner~~ commission in establishing appropriate professional review of requests by health care providers to exceed the guidelines for treatment of injuries and occupational diseases established pursuant to subdivision (a) of this section.
§23-4-3c. Suspension or termination of providers of health care.
          (a) The ~~commissioner~~ commission may suspend for up to ~~one year~~ three years or permanently terminate the right of any health care provider, including a provider of rehabilitation services within the meaning of section nine of this article, to obtain payment for services rendered to injured employees:
          (1) If the ~~commissioner~~ commission finds that the health care provider is regularly providing excessive, medically unreasonable or unethical care to injured employees;
          (2) If the ~~commissioner~~ commission finds that a health care provider is attempting to make any charge or charges against the injured employee or any other person, firm or corporation which would result in a total charge for any treatment rendered in excess of the maximum amount set by the ~~commissioner~~ commission, in violation of section three of this article;
          (3) If the ~~commissioner~~ commission determines that the health care provider has had his or her license to practice suspended or terminated by the appropriate authority in this state or in another state; or
          (4) If the ~~commissioner~~ commission determines that the health care provider has been convicted of any crime in relation to his or her practice.; or
__________(5) If the commission determines that the health care provider has routinely made medically unsupported recommendations regarding a percentage of disability or has prescribed medically unsupported treatment including medication.
          The ~~commissioner~~ executive director shall consult with medical experts, including the health care advisory panel established pursuant to section three-b of this article, for purposes of determining whether a health care provider should be suspended or terminated pursuant to this section.
          (b) Upon the ~~commissioner determining~~ determination by the executive director that there is probable cause to believe that a health care provider should be suspended or terminated pursuant to this section, the ~~commissioner~~ executive director shall provide ~~such~~ the health care provider with written notice ~~which shall state~~ stating the nature of the charges against the health care provider and the time and place ~~at which such~~ of a hearing. The health care provider shall appear to show cause why the health care provider's right to receive payment under this chapter should not be suspended or terminated. ~~at which time and place such~~ At the hearing the health care provider shall be afforded an opportunity to review the ~~commissioner's~~ evidence, ~~and~~ to cross-examine the ~~commissioner's~~ witnesses, and ~~also afforded the opportunity to~~ present testimony and enter evidence in support of its position. The hearing shall be conducted in accordance with the provisions of article five, chapter twenty-nine-a of this code. The hearing may be conducted by the ~~commissioner~~ executive director or a hearing officer appointed by the ~~commissioner~~ executive director. The ~~commissioner~~ executive director or hearing officer ~~shall~~ have the power to subpoena witnesses, papers, records, documents and other data and things in connection with the proceeding ~~hereunder~~ under this subsection and to administer oaths or affirmations in ~~any such~~ the hearing. If, after reviewing the record of ~~such~~ the hearing, the ~~commissioner~~ executive director determines that the right of ~~such~~ the health care provider to obtain payment under this article should be suspended for a specified period of time or should be permanently terminated, the ~~commissioner~~ executive director shall issue a final order suspending or terminating the right of ~~such~~ the health care provider to obtain payment for services under this article. ~~Any health care provider so suspended or terminated shall be notified in writing and the notice shall specify the reasons for the action so taken.~~ The order shall set forth findings of fact and conclusions of law in support of the decision. The order shall be mailed to the health care provider by certified mail, return receipt requested. Any appeal by the health care provider shall be brought in the circuit court of Kanawha County or in the county in which the provider's principal place of business is located. The scope of the court's review of ~~such an appeal~~ the final order shall be as provided in section four, ~~of said~~ article five, chapter twenty nine-a of this code. The provider may be suspended or terminated, based upon the final order of the ~~commissioner~~ executive director or hearing officer, pending final disposition of any appeal. ~~Such~~ The final order may be stayed by the circuit court after hearing, but shall not be stayed in or as a result of any ex parte proceeding. If the health care provider does not appeal the final order ~~of the commissioner~~ within thirty days, it ~~shall be~~ is final.
          (c) No payment shall be made to a health care provider or to an injured employee for services provided by a health care provider after the effective date of a ~~commissioner's~~ final order terminating or suspending the health care provider: Provided, That nothing ~~herein~~ in this subsection shall prohibit payment by the ~~commissioner~~ executive director or self-insured employer to a suspended or terminated health care provider for medical services rendered where the medical services were rendered to an injured employee in an emergency situation. The suspended or terminated provider ~~is prohibited from making~~ may not make any charge or charges for any services so provided against the injured employee unless the injured employee, before any services are rendered, is given notice by the provider in writing that the provider does not participate in the workers' compensation program and that the injured employee will be solely responsible for all payments to the provider and unless the injured employee also signs a written consent, before any services are rendered, to make payment directly and to waive any right to reimbursement from the ~~commissioner~~ executive director or the self-insured employer. The written consent and waiver signed by the injured employee shall be filed by the provider with the ~~commissioner~~ executive director and shall be made a part of the claim file.
          (d) The ~~commissioner~~ executive director shall notify each claimant, whose duly authorized treating physician or other health care provider has been suspended or terminated pursuant to this section, of the suspension or termination of the provider's rights to obtain payment under this chapter and shall assist the claimant in arranging for transfer of his or her care to another physician or provider.
          (e) Each suspended or terminated provider shall post in the provider's public waiting area or areas a written notice, in the form required by the ~~commissioner~~ executive director, of the suspension or termination of the provider's rights to obtain payment under this chapter.
          (f) A suspended ~~or terminated~~ provider may apply for reinstatement at the end of the term of suspension ~~or, if terminated, after one year from the effective date of termination~~.
          (g) The ~~commissioner~~ executive director, with the approval of the board of managers, shall promulgate rules for the purpose of implementing this section.

§23-4-4. Funeral expenses; wrongfully seeking payment; criminal penalties.

          (a) In case the personal injury causes death, reasonable funeral or cemetery expense, in an amount to be fixed, from time to time, by the ~~division~~ commission shall be paid from the fund, payment to be made to the persons who have furnished the services and supplies, or to the persons who have advanced payment for ~~same~~ the services and supplies, as the ~~division~~ commission may ~~deem~~ determine proper, in addition to ~~such~~ any award ~~as may be~~ made to the employee's dependents.
          (b) A funeral director or cemeterian, or any person who furnished the services and supplies associated with the funeral or cemetery expenses, or a person who has advanced payment for ~~same~~ the services and supplies, is prohibited from making any charge or charges against the employee's dependents for funeral expenses which would result in a total charge for funeral expenses in excess of the amount fixed by the ~~division~~ commission unless:
          (1) The person seeking funeral expenses notifies, in writing and prior to the rendering of any service, the employee's dependent as to the exact cost of the service and the exact amount the employee's dependent would be responsible for paying in excess of the amount fixed by the ~~division~~ commission; and
          (2) The person seeking funeral expenses secures, in writing and prior to the rendering of any service, consent from the employee's dependent that he or she will be responsible to make payment for the amount in excess of the amount fixed by the ~~division~~ commission.
          (c) Any person who knowingly and willfully seeks or receives payment of funeral expenses in excess of the amount fixed by the ~~division~~ commission without satisfying both of the requirements of subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined three thousand dollars or confined in a county or regional jail for a definite term of confinement of twelve months, or both.
§23-4-6. Classification of and criteria for disability benefits.
          Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as provided in the following schedule:
          (a) The ~~expressions~~ terms 'average weekly wage earnings, wherever earned, of the injured employee, at the date of injury' and 'average weekly wage in West Virginia', as used in this chapter, ~~shall~~ have the meaning and shall be computed as set forth in section fourteen of this article except for the purpose of computing temporary total disability benefits for part-time employees pursuant to the provisions of section six-d of this article. Notwithstanding any provision of this code to the contrary, no annual increases will be made for changes in the average weekly wage in West Virginia for any benefit paid pursuant to the provisions of this article for fiscal year two thousand four, two thousand five or two thousand six. In each year thereafter, the board of managers shall authorize annual adjustments only if the workers' compensation fund is found to be fully funded and actuarially solvent in the preceding year.
          (b) If For all awards made on and after the effective date of the amendment and re-enactment of this section during the regular session of the Legislature in the year two thousand three, the injury causes temporary total disability, the employee shall receive during the continuance ~~thereof~~ of the disability a maximum weekly benefit to be computed on the basis of ~~seventy~~ sixty-six and two-thirds percent of the average weekly wage earnings, wherever earned, of the injured employee, at the date of injury, not to exceed one hundred percent of the average weekly wage in West Virginia: Provided, That in the case of a claimant whose ~~injury occurred prior to the second day of February, one thousand nine hundred ninety-five,~~ award was granted prior to the effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three, the maximum benefit rate shall be the rate applied under the prior enactment of this subsection which was in effect at the time the injury occurred~~, and the rate shall not be affected by the amendment and reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-five~~. The minimum weekly benefits paid ~~hereunder~~ under this subdivision shall not be less than thirty-three and one-third percent of the average weekly wage in West Virginia, except as provided in sections six-d and nine of this article. In no event, however, shall ~~such~~ the minimum weekly benefits exceed the level of benefits determined by use of the ~~then~~ applicable federal minimum hourly wage: Provided, however, That any claimant receiving permanent total disability benefits, permanent partial disability benefits or dependents' benefits prior to the first day of July, one thousand nine hundred ninety-four, shall not have his or her benefits reduced based upon the requirement ~~herein~~ in this subdivision that the minimum weekly benefit shall not exceed the applicable federal minimum hourly wage.
          (c) Subdivision (b) of this section ~~shall be~~ is limited as follows: Aggregate award for a single injury causing temporary disability shall be for a period not exceeding two hundred eight weeks.
          (d) For all awards of permanent total disability benefits that are made on or after the second day of February, one thousand nine hundred ninety-five, including those claims in which a request for an award was pending before the division or which were in litigation but not yet submitted for a decision, then benefits shall be payable until the claimant attains the age necessary to receive federal old age retirement benefits under the provisions of the Social Security Act, 42 U. S. C. 401 and 402, in effect on the effective date of this section. ~~Such~~ The a claimant shall be paid benefits so as not to exceed a maximum benefit of sixty-six and two-thirds percent of the claimant's average weekly wage earnings, wherever earned, at the time of the date of injury not to exceed one hundred percent of the average weekly wage in West Virginia. The minimum weekly benefits paid ~~hereunder~~ under this section shall be as is provided for in subdivision (b) of this section. In all claims in which an award for permanent total disability benefits was made prior to the second day of February, one thousand nine hundred ninety-five, ~~such~~ the awards shall continue to be paid at the rate in effect prior to the ~~said~~ that date, subject to annual adjustments for changes in the average weekly wage in West Virginia: Provided, That the provisions of sections one through eight, inclusive, article four-a of this chapter shall be applied thereafter to all ~~such~~ prior awards that were previously subject to its provisions. A single or aggregate permanent disability of eighty-five percent or more ~~shall entitle~~ entitles the employee to a rebuttable presumption of a permanent total disability for the purpose of paragraph (2), subdivision (n) of this section: Provided, however, That the claimant must also be at least ~~forty~~ fifty percent medically impaired upon a whole body basis or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. The presumption may be rebutted if the evidence establishes that the claimant is not permanently and totally disabled pursuant to subdivision (n) of this section. Under no circumstances ~~shall~~ may the ~~division~~ commission grant an additional permanent disability award to a claimant receiving a permanent total disability award: Provided further, That if any claimant thereafter sustains another compensable injury and has permanent partial disability resulting ~~therefrom~~ from the injury, the total permanent disability award benefit rate shall be computed at the highest benefit rate justified by any of the compensable injuries~~, and the cost of any increase in the permanent total disability benefit rate shall be paid from the second injury reserve created by section one, article three of this chapter~~.
          (e) (1) For all awards made on or after the ~~second day of February, one thousand nine hundred ninety-five~~, effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three, if the injury causes permanent disability less than permanent total disability, the percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability determined, at the maximum or minimum benefit rates ~~provided for in subdivision (d) of this section:~~ as follows: Seventy percent of the average weekly wage earnings, wherever earned, of the injured employee at the date of injury, not to exceed sixty-six and two-thirds percent of the average weekly wage in West Virginia: Provided, That in the case of a claimant whose ~~injury occurred~~ claim was awarded prior to the ~~second day of February, one thousand nine hundred ninety- five,~~ effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three the maximum benefit rate shall be the rate applied under the prior enactment of this section which was in effect at the time the injury occurred~~, and the rate shall not be affected by the amendment and reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-five~~.
          (2) If a claimant is released by his or her treating physician to return to work at the job he or she held before the occupational injury occurred and if the claimant's preinjury employer does not offer the preinjury job or a comparable job to the employee when ~~such~~ a position is available to be offered, ~~then~~ the award for the percentage of partial disability shall be computed on the basis of six weeks of compensation for each percent of disability.
          (3) The minimum weekly benefit under this subdivision shall be as provided in subdivision (b) of this section for temporary total disability.
          (f) If the injury results in the total loss by severance of any of the members named in this subdivision, the percentage of disability shall be determined by the percentage of disability, specified in the following table:
          The loss of a great toe shall be considered a ten percent disability.
          The loss of a great toe (one phalanx) shall be considered a five percent disability.
          The loss of other toes shall be considered a four percent disability.
          The loss of other toes (one phalanx) shall be considered a two percent disability.
          The loss of all toes shall be considered a twenty-five percent disability.
          The loss of forepart of foot shall be considered a thirty percent disability.
          The loss of a foot shall be considered a thirty-five percent disability.
          The loss of a leg shall be considered a forty-five percent disability.
          The loss of thigh shall be considered a fifty percent disability.
          The loss of thigh at hip joint shall be considered a sixty percent disability.
          The loss of a little or fourth finger (one phalanx) shall be considered a three percent disability.
          The loss of a little or fourth finger shall be considered a five percent disability.
          The loss of ring or third finger (one phalanx) shall be considered a three percent disability.
          The loss of ring or third finger shall be considered a five percent disability.
          The loss of middle or second finger (one phalanx) shall be considered a three percent disability.
          The loss of middle or second finger shall be considered a seven percent disability.
          The loss of index or first finger (one phalanx) shall be considered a six percent disability.
          The loss of index or first finger shall be considered a ten percent disability.
          The loss of thumb (one phalanx) shall be considered a twelve percent disability.
          The loss of thumb shall be considered a twenty percent disability.
          The loss of thumb and index fingers shall be considered a thirty-two percent disability.
          The loss of index and middle fingers shall be considered a twenty percent disability.
          The loss of middle and ring fingers shall be considered a fifteen percent disability.
          The loss of ring and little fingers shall be considered a ten percent disability.
          The loss of thumb, index and middle fingers shall be considered a forty percent disability.
          The loss of index, middle and ring fingers shall be considered a thirty percent disability.
          The loss of middle, ring and little fingers shall be considered a twenty percent disability.
          The loss of four fingers shall be considered a thirty-two percent disability.
          The loss of hand shall be considered a fifty percent disability.
          The loss of forearm shall be considered a fifty-five percent disability.
          The loss of arm shall be considered a sixty percent disability.
          The total and irrecoverable loss of the sight of one eye shall be considered a thirty-three percent disability. For the partial loss of vision in one or both eyes, the percentages of disability shall be determined by the ~~division~~ commission, using as a basis the total loss of one eye.
          The total and irrecoverable loss of the hearing of one ear shall be considered a twenty-two and one-half percent disability. The total and irrecoverable loss of hearing of both ears shall be considered a fifty-five percent disability.
          For the partial loss of hearing in one or both ears, the percentage of disability shall be determined by the ~~division~~ commission, using as a basis the total loss of hearing in both ears.
          ~~Should~~ If a claimant ~~sustain~~ sustains a compensable injury which results in the total loss by severance of any of the bodily members named in this subdivision~~, die~~ or dies from sickness or noncompensable injury before the ~~division~~ commission makes the proper award for ~~such~~ the injury, the ~~division~~ commission shall make ~~such~~ the award to the claimant's dependents as defined in this chapter, if any; ~~such~~ the payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of ~~such~~ the claimant after his or her remarriage and that this liability shall not accrue to the estate of ~~such~~ the claimant and shall is not be subject to any debts of, or charges against, ~~such~~ the estate.
          (g) ~~Should~~ If a claimant to whom has been made a permanent partial award ~~die~~ dies from sickness or noncompensable injury, the unpaid balance of such the award shall be paid to claimant's dependents as defined in this chapter, if any; ~~such~~ the payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of ~~such~~ the claimant after his or her remarriage, and that this liability shall not accrue to the estate of ~~such~~ the claimant and ~~shall~~ is not be subject to any debts of, or charges against, such estate.
          (h) For the purposes of this chapter, a finding of the occupational pneumoconiosis board ~~shall have~~ has the force and effect of an award.
          (i) For the purposes of this chapter, with the exception of those injuries provided for in subdivision (f) of this section and in section six-b of this article, the degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body medical impairment that a claimant has suffered. For those injuries provided for in subdivision (f) of this section and section six-b of this article, the degree of disability shall be determined exclusively by the provisions of ~~said~~ that subdivision and ~~said~~ that section. The occupational pneumoconiosis board created pursuant to section eight-a of this article shall premise its decisions on the degree of pulmonary function impairment that claimants suffer solely upon whole body medical impairment. The workers' compensation ~~division~~ commission shall adopt standards for the evaluation of claimants and the determination of a claimant's degree of whole body medical impairment. Once the degree of medical impairment has been determined, that degree of impairment shall be the degree of permanent partial disability that shall be awarded to the claimant. This subdivision ~~shall be~~ is applicable to all injuries incurred and diseases with a date of last exposure on or after the ~~second day of February, one thousand nine hundred ninety-five~~ second day of February, one thousand nine hundred ninety-five, to all applications for an award of permanent partial disability made on and after ~~such~~ that date and to all applications for an award of permanent partial disability that were pending before the ~~division~~ commission or pending in litigation but not yet submitted for decision on and after ~~such~~ that date. The prior provisions of this subdivision ~~shall~~ remain in effect for all other claims.
          (j) From a list of names of seven persons submitted to the ~~commissioner~~ executive director by the health care advisory panel, the ~~commissioner~~ executive director shall appoint an interdisciplinary examining board consisting of five members to evaluate claimants, including by examination if the board so elects. The board shall be composed of three qualified physicians with specialties and expertise qualifying them to evaluate medical impairment and two vocational rehabilitation specialists who are qualified to evaluate the ability of a claimant to perform gainful employment with or without retraining. One member of the board shall be designated annually as chairperson by the ~~commissioner~~ executive director. The term of office of each member of the board shall be six years and until his or her successor has been appointed and has qualified: ~~Provided,~~ ~~That two of the persons initially appointed shall serve a term of six years, two of the remaining persons shall serve a term of four years and the remaining member shall serve a term of two years.~~ Any member of the board may be appointed to any number of terms. Any two physician members and one vocational rehabilitation specialist member shall constitute a quorum for the transaction of business. The ~~commissioner~~ executive director, from time to time, shall fix the compensation to be paid to each member of the board, and the members ~~shall~~ are also be entitled to reasonable and necessary traveling and other expenses incurred while actually engaged in the performance of their duties. The board shall perform the duties and responsibilities as assigned by the provisions of this chapter, consistent with the administrative policies developed by the ~~commissioner~~ executive director with the ~~assistance~~ approval of the ~~compensation programs performance council~~ board of managers.
          (1) The executive director shall establish requirements for the proper completion and support for an application for permanent total disability within an existing or a new rule no later than the first day of January, two thousand four. Upon adoption of the rule by the board, no issue of permanent total disability shall be referred to the interdisciplinary examining board unless a properly completed and supported application for permanent total disability has been first filed with the commission. Prior to the referral of any issue to the interdisciplinary examining board, the ~~division~~ commission shall conduct ~~such~~ examinations of the claimant as that it finds necessary and obtain all pertinent records concerning the claimant's medical history and reports of examinations and forward them to the board at the time of the referral. The ~~division~~ commission shall provide adequate notice to the employer of the filing of the request for a permanent total disability award and the employer shall be granted an appropriate period in which to respond to the request. The claimant and the employer may furnish all pertinent information to the board and shall furnish to the board any information requested by the board. The claimant and the employer may each submit no more than one report and opinion regarding each issue present in a given claim. The employer ~~shall be entitled to~~ may have the claimant examined by medical specialists and vocational rehabilitation specialists: Provided, That the employer is entitled to only one ~~such~~ examination on each issue present in a given claim. Any additional examinations must be approved by the ~~division~~ commission and shall be granted only upon a showing of good cause. The reports from all employer-conducted examinations must be filed with the board and served upon the claimant. The board may request that those persons who have furnished reports and opinions regarding a claimant provide it with ~~such~~ additional information as considered necessary by the board ~~may deem necessary~~. Both the claimant and the employer, as well as the ~~division~~ commission, may submit reports from experts challenging or supporting the other reports in the record regardless of whether or not ~~such an~~ the expert examined the claimant or relied solely upon the evidence of record.
          (2) If the board or a quorum ~~thereof~~ of the board elects to examine a claimant, the individual members shall conduct ~~such~~ any examinations as that are pertinent to each of their specialties. If a claim presents an issue beyond the expertise of the board, the board may obtain advice or evaluations by other specialists. In addition, if the ~~compensation programs performance council~~ board of managers determines that the number of applications pending before the interdisciplinary examining board has exceeded the level at which the board can review and make recommendations within a reasonable time, ~~then~~ the ~~council~~ board of managers may authorize the ~~commissioner~~ executive director to appoint ~~such~~ any additional members to the board ~~as may be~~ that are necessary to reduce the backlog of applications. ~~Such~~ The additional members shall be recommended by the health care advisory panel. ~~and the commissioner~~ The executive director may make ~~such~~ any appointments as he or she chooses from the recommendations. The additional board members shall not serve a set term but shall serve until the ~~council~~ board of managers determines that the number of pending applications has been reduced to an acceptable level.
          (3) Referrals to the board shall be limited to matters related to the determination of permanent total disability under the provisions of subdivision (n) of this section and to questions related to medical cost containment, utilization review decisions and managed care decisions arising under section three of this article.
          (4) In the event the board members elect to examine a claimant, the board shall prepare a report stating the tests, examinations, procedures and other observations that were made, the manner in which each was conducted and the results of each. The report shall state the findings made by the board and the reasons ~~therefor~~ for the findings. Copies of the reports of all ~~such~~ examinations made by the board shall be served upon the parties and the ~~division and each~~ commission. Each shall be given an opportunity to respond in writing to the findings and conclusions stated in the reports.
          (5) The board shall state its initial recommendations to the ~~division~~ commission in writing with an explanation for each ~~such~~ recommendation setting forth the reasons for each. The recommendations shall be served upon the parties and the ~~division~~ commission and each shall be afforded a thirty-day opportunity to respond in writing to the board regarding the board's recommendations. The board shall ~~then~~ review any ~~such~~ responses and issue its final recommendations. The final recommendations shall ~~then~~ be effectuated by the entry of an appropriate order by the ~~division~~ commission. For all awards for permanent total disability where the claim was filed on or after the effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three, the commission shall establish the date of onset of the claimant's permanent total disability as the date when a properly completed and supported application for permanent total disability benefits that results in a finding of permanent total disability was filed with the commission pursuant to subdivision (1), subsection (j), section six of this section: Provided, That upon notification of the commission by a claimant or his or her representative that the claimant seeks to be evaluated for permanent total disability, the commission shall send the claimant or his or her representative the proper application form. The commission shall set time limits for the return of the application. A properly completed and supported application returned within the time limits set by the commission shall be treated as if received on the date the commission was notified the claimant was seeking evaluation for permanent total disability.
          (6) Except as noted below, objections pursuant to section one, article five of this chapter to any ~~such~~ order shall be limited in scope to matters within the record developed before the workers' compensation ~~division~~ commission and the board and shall further be limited to the issue of whether the board properly applied the standards for determining medical impairment, if applicable, and the issue of whether the board's findings are clearly wrong in view of the reliable, probative and substantial evidence on the whole record. ~~Should~~ If either party ~~contend~~ contends that the claimant's condition has changed significantly since the review conducted by the board, the party may file a motion with the administrative law judge, together with a report supporting that assertion. Upon the filing of ~~such~~ the motion, the administrative law judge shall cause a copy of the report to be sent to the examining board asking the board to review the report and provide ~~such~~ comments as if the board chooses within sixty days of the board's receipt of the report. The board may ~~then~~ either supply ~~such~~ comments or, at the board's discretion, request that the claim be remanded to the board for further review ~~by the board~~. If remanded, the claimant is not required to submit to further examination by the employer's medical specialists or vocational rehabilitation specialists. Following ~~any such~~ the remand, the board shall file its recommendations with the administrative law judge for his or her review. If the board elects to respond with comments, ~~such~~ the comments shall be filed with the administrative law judge for his or her review. Following the receipt of either the board's recommendations or ~~comment~~ comments, the administrative law judge shall ~~then~~ issue a written decision ruling upon the asserted change in the claimant's condition. No additional evidence may be introduced during the review of the objection before the office of judges or elsewhere on appeal: Provided, That each party and the ~~division~~ commission may submit one written opinion on each issue pertinent to a given claim based upon a review of the evidence of record either challenging or defending the board's findings and conclusions. Thereafter, based upon the evidence ~~then~~ of record, the administrative law judge shall issue a written decision containing his or her findings of fact and conclusions of law regarding each issue involved in the objection.
          (k) Compensation payable under any subdivision of this section shall not exceed the maximum nor be less than the weekly benefits specified in subdivision (b) of this section.
          (l) Except as otherwise specifically provided in this chapter, temporary total disability benefits payable under subdivision (b) of this section shall not be deductible from permanent partial disability awards payable under subdivision (e) or (f) of this section. Compensation, either temporary total or permanent partial, under this section shall be payable only to the injured employee and the right ~~thereto~~ to the compensation shall not vest in his or her estate, except that any unpaid compensation which would have been paid or payable to the employee up to the time of his or her death, if he or she had lived, shall be paid to the dependents of ~~such~~ the injured employee if there ~~be such~~ are any dependents at the time of death.
          (m) The following permanent disabilities shall be conclusively presumed to be total in character:
          Loss of both eyes or the sight thereof.
          Loss of both hands or the use thereof.
          Loss of both feet or the use thereof.
          Loss of one hand and one foot or the use thereof.
          (n) (1) Other than for those injuries specified in subdivision (m) of this section, in order to be eligible to apply for an award of permanent total disability benefits for all injuries incurred and all diseases, including occupational pneumoconiosis, ~~with a~~ regardless of the date of last exposure, on and after the ~~second day of February, one thousand nine hundred ninety-five~~, ~~and for all requests for such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five,~~ effective date of the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three a claimant must have been awarded the sum of ~~forty~~ fifty percent in prior permanent partial disability awards, have suffered an occupational injury or disease which results in a finding that the claimant has suffered a medical impairment of ~~forty~~ fifty percent or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. Upon filing ~~such~~ an application, the claim will be reevaluated by the examining board pursuant to subdivision (i) of this section to determine if ~~he or she~~ the claimant has suffered a whole body medical impairment of ~~forty~~ fifty percent or more resulting from either a single occupational injury or occupational disease or a combination of occupational injuries and occupational diseases or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section. A claimant whose prior permanent partial disability awards total eighty-five percent or more shall also be examined by the board and must be found to have suffered a whole body medical impairment of ~~forty~~ fifty percent in order for his or her request to be eligible for further review. The examining board shall review the claim as provided for in subdivision (j) of this section. If the claimant has not suffered whole body medical impairment of at least ~~forty~~ fifty percent or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, ~~then~~ the request shall be denied. Upon a finding that the claimant ~~does have a forty~~ has a fifty percent whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, ~~then~~ the review of the application ~~shall continue~~ continues as provided for in the following paragraph of this subdivision. Those claimants whose prior permanent partial disability awards total eighty-five percent or more and who have been found to have a whole body medical impairment of at least ~~forty~~ fifty percent or have sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section ~~shall then be~~ are entitled to the rebuttable presumption created pursuant to subdivision (d) for the remaining issues in the request. For the purposes of determining whether the claimant should be awarded permanent total disability benefits under the second injury provisions of subsection (d), section one, article three of this chapter, only a combination of occupational injuries and occupational diseases, including occupational pneumoconiosis, shall be considered.
          (2) A For all awards made on or after the effective date of the amendment and re-enactment of this section during the regular session of the Legislature in the year two thousand three, disability which renders the injured employee unable to engage in substantial gainful activity requiring skills or abilities which can be acquired or which are comparable to those of any gainful activity in which he or she has previously engaged with some regularity and over a substantial period of time shall be considered in determining the issue of total disability. Neither the geographic availability of gainful employment nor the comparability of preinjury income to post-disability income will be a factor in determining permanent total disability. Permanent total disability ceases at age seventy. In addition, the vocational standards adopted pursuant to subsection (m), section seven, article three, of this chapter ~~twenty-one-a of this code~~ shall be considered once they are effective.
          (3) In the event that a claimant, who has been found to have at least a ~~forty~~ fifty percent whole body medical impairment or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this section, is denied an award of permanent total disability benefits pursuant to this subdivision and ~~then~~ accepts and continues to work at a lesser paying job than he or she previously held, ~~then such a~~ the claimant ~~shall be~~ is eligible, notwithstanding the provisions of section nine of this article, to receive temporary partial rehabilitation benefits for a period of four years. ~~Such~~ The benefits shall be paid at the level necessary to ensure the claimant's receipt of the following percentages of the average weekly wage earnings of the claimant at the time of injury calculated as provided in this section and sections six-d and fourteen of this article:
          (A) Eighty percent for the first year;
          (B) Seventy percent for the second year;
          (C) Sixty percent for the third year; and
          (D) Fifty percent for the fourth year: Provided, That in no event shall ~~such~~ the benefits exceed one hundred percent of the average weekly wage in West Virginia. In no event shall ~~such~~ the benefits be subject to the minimum benefit amounts required by the provisions of subdivision (b) of this section.
          (4) It is the intent of the Legislature that the amendments to this section enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-nine which change criteria for an award of permanent total disability benefits be applied retroactively to all injuries incurred and all occupational diseases, including occupational pneumoconiosis, with a date of last exposure on and after the second day of February, one thousand nine hundred ninety-five, and for all requests for such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five: ~~Provided,~~ That any claimant whose application for permanent total disability benefits was rejected on or after the second day of February, one thousand nine hundred ninety-five, based on a finding that the claimant: (1) Was not awarded the sum of fifty percent in prior permanent partial disability awards; or (2) did not suffer an occupational injury or occupational disease which resulted in a finding that the claimant has suffered a medical impairment of fifty percent; or (3) did not suffer whole body medical impairment of at least fifty percent, then such claimant may, during the period beginning on the first day of July, one thousand nine hundred ninety-nine, and ending on the thirtieth day of September, one thousand nine hundred ninety-nine, file with the division a petition for reconsideration of the denial of permanent total disability benefits. After review of the petition by the division and the examining board, the division shall enter an appropriate order on the claimant's petition for reconsideration.

§23-4-6a. Benefits and mode of payment to employees and dependents for occupational pneumoconiosis; further adjustment of claim for occupational pneumoconiosis.

          If an employee is found to be permanently disabled due to occupational pneumoconiosis, as defined in section one of this article, the percentage of permanent disability ~~shall be~~ is determined by the degree of medical impairment that is found by the occupational pneumoconiosis board. The ~~division~~ commission shall enter an order setting forth the findings of the occupational pneumoconiosis board with regard to whether the claimant has occupational pneumoconiosis and the degree of medical impairment, if any, resulting therefrom. That order ~~shall be~~ is the final decision of the ~~division~~ commission for purposes of section one, article five of this chapter. If ~~such~~ a decision is objected to, the office of judges shall affirm the decision of the occupational pneumoconiosis board made following hearing unless the decision is clearly wrong in view of the reliable, probative and substantial evidence on the whole record. Compensation ~~shall be~~ is paid therefor in the same manner and at the same rate as is provided for permanent disability under the provisions of subdivisions (d), (e), (g), (h), (i), (j), (k), (m) and (n), section six of this article: Provided, That if it shall be determined by the division in accordance with the facts in the case and with the advice and recommendation of the occupational pneumoconiosis board that an employee has occupational pneumoconiosis, but without measurable pulmonary impairment therefrom, such employee shall be awarded and paid twenty weeks of benefits at the same benefit rate as hereinabove provided. for any employee who applies for occupational pneumoconiosis benefits, whose claim was filed on or after the effective date of the amendment and reenactment of this section by the Legislature during the regular session in the year two thousand three, there shall be no permanent partial disability awarded based solely upon a diagnosis of occupational pneumoconiosis, it being the intent of the Legislature to eliminate any permanent partial disability awards for occupational pneumoconiosis without a specific finding of measurable impairment.
          If the employee dies from occupational pneumoconiosis, the benefits shall be as provided for in section ten of this article; as to ~~such~~ the benefits sections eleven to fourteen, inclusive, of this article ~~shall~~ apply.
          In cases of permanent disability or death due to occupational pneumoconiosis, as defined in section one of this article, accompanied by active tuberculosis of the lungs, compensation shall be payable as for disability or death due to occupational pneumoconiosis alone.
          The provisions of section sixteen, article four of this chapter and sections two, three, four and five, article five of this chapter providing for the further adjustment of claims ~~shall be~~ are applicable to the claim of any claimant who receives a permanent partial disability award for occupational pneumoconiosis.
§23-4-6b. Occupational hearing loss claims.
          (a) In all claims for occupational hearing loss caused by either a single incident of trauma or by exposure to hazardous noise in the course of and resulting from employment, the degree of permanent partial disability, if any, shall be determined in accordance with the provisions of this section and awards made in accordance with the provisions of section six of this article.
          (b) The percent of permanent partial disability for a monaural hearing loss shall be computed in the following manner:
          (1) The measured decibel loss of hearing due to injury at the sound frequencies of five hundred, one thousand, two thousand and three thousand hertz shall be determined for the injured ear and the total shall be divided by four to ascertain the average decibel loss;
          (2) The percent of monaural hearing impairment for the injured ear shall be calculated by multiplying by one and six-tenths percent the difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred percent hearing impairment, which maximum is reached at ninety decibels; and
          (3) The percent of monaural hearing impairment so obtained shall ~~then~~ be multiplied by twenty-two and one-half to ascertain the degree of permanent partial disability.
          (c) The percent of permanent partial disability for a binaural hearing loss shall be computed in the following manner:
          (1) The measured decibel loss of hearing due to injury at the sound frequencies of five hundred, one thousand, two thousand and three thousand hertz ~~shall be~~ is determined for each ear and the total for each ear shall be divided by four to ascertain the average decibel loss for each ear;
          (2) The percent of hearing impairment for each ear ~~shall be~~ is calculated by multiplying by one and six-tenths percent the difference by which the aforementioned average decibel loss exceeds twenty-seven and one-half decibels, up to a maximum of one hundred percent hearing impairment, which maximum is reached at ninety decibels;
          (3) The percent of binaural hearing impairment shall ~~then~~ be calculated by multiplying the smaller percentage (better ear) by five, adding this figure to the larger percentage (poorer ear) and dividing the sum by six; and
          (4) The percent of binaural hearing impairment so obtained shall ~~then~~ be multiplied by fifty- five to ascertain the degree of permanent partial disability.
          (d) No permanent partial disability benefits shall be granted for impairment of speech discrimination other than that compensated for by application of the formulas specified in subsections (b) and (c) of this section or for tinnitus, psychogenic hearing loss, recruitment or hearing loss above three thousand hertz.
          (e) An additional amount of permanent partial disability shall be granted for impairment of speech discrimination, if any, to determine the additional amount for binaural impairment, the percentage of speech discrimination in each ear shall be added together and the result divided by two to calculate the average percentage of speech discrimination, and the permanent partial disability shall be ascertained by reference to the percentage of permanent partial disability in the table below on the line with the percentage of speech discrimination so obtained. To determine the additional amount for monaural impairment, the permanent partial disability shall be ascertained by reference to the percentage of permanent partial disability in the table below on the line with the percentage of speech discrimination in the injured ear.
TABLE
                % of Permanent
          % of Speech Discrimination                        Partial Disability
90% . . . and up to and including . . . . . 100%         0%
80% . . . and up to but not including . . . 90%        1%
70% . . . and up to but not including . . . 80%        3%
60% . . . and up to but not including . . . 70%        4%
0% . . . and up to but not including . . . 60%        5%
          (f) No temporary total disability benefits shall be granted for noise- induced hearing loss.
          (g) An application for benefits alleging a noise-induced hearing loss shall set forth the name of the employer or employers and the time worked for each. ~~and the commissioner~~ The commission shall allocate to and divide any charges resulting from ~~such~~ the claim among ~~such~~ the employers with whom the claimant sustained exposure to hazardous noise for as much as sixty days during the period of three years immediately preceding the date of last exposure. The allocation ~~shall be~~ is based upon the time of exposure with each employer. In determining the allocation, the ~~commissioner~~ commission shall consider all the time of employment by each employer during which the claimant was so exposed and not just the time within ~~such~~ the three-year period, under the same allocation as is applied in occupational pneumoconiosis cases.
          (h) The ~~commissioner~~ commission shall provide, consistent with current practice, for prompt referral ~~of such~~ the claims for evaluation, for all medical reimbursement and for prompt authorization of hearing enhancement devices.
          (i) The provisions of this section and the amendments to section six of this article insofar as applicable to permanent partial disabilities for hearing loss ~~shall be~~ are operative as to any claim filed after thirty days from the effective date of this section.
§23-4-6d. Benefits payable to part-time employees.
          (a) For purposes of this section, a part-time employee means an employee who, at the date of injury, is customarily employed twenty-five hours per week or less on a regular basis and is classified by the employer as a part-time employee: Provided, That the term 'part-time employee' shall not include an employee who regularly works more than twenty-five hours per week for the employer, nor shall it include an employee who regularly works for more than one employer and whose regular combined working hours total more than twenty-five hours per week when that employee is rendered unable to perform the duties of ~~all such~~ his or her employment as a result of the injury, nor shall it include any employee in the construction industry who works less than twenty-five hours per week.
          (b) For purposes of establishing temporary total disability weekly benefits pursuant to subdivision (b), section six of this article for part-time employees, the 'average weekly wage earnings, wherever earned, of the injured person at the date of injury' shall be computed :
          (1) Until the first day of July, one thousand nine hundred ninety-four, based upon the average gross pay, wherever earned, which is received by the employee during the two months, six months or twelve months immediately preceding the date of the injury, whichever is most favorable to the injured employee; or
          (2) On and after the first day of July, one thousand nine hundred ninety-four, based upon the best average weekly gross pay, wherever earned, which is received by the employee during the best quarter of wages out of the preceding four quarters of wages as reported to the ~~commissioner~~ commission pursuant to ~~section eleven, article ten, chapter twenty-one-a of this code~~ subsection (b), section two, article two of this chapter: Provided, That for part-time employees who have been employed less than two months but more than one week prior to the date of injury or any employee whose wages have not yet been reported to the ~~commissioner~~ commission, the average weekly wage earnings shall be calculated based upon the average gross earnings in the weeks actually worked: Provided, however, That for part-time employees who have been employed one week or less, the average weekly wage earnings shall be calculated based upon the average weekly wage prevailing for the same or similar part-time employment at the time of injury except that when an employer has agreed to pay a certain hourly wage to ~~such~~ a part-time employee, the average weekly wage shall be computed by multiplying ~~such~~ the hourly wage by the regular numbers of hours contracted to be worked each week: Provided further, That notwithstanding any provision of this article to the contrary, no part-time employee shall receive temporary total disability benefits greater than his or her average weekly wage earnings as so calculated.
          (c) Notwithstanding any other provisions of this article to the contrary, benefits payable to a part-time injured employee for any permanent disability shall be computed and paid on the same basis as if the injured employee is not a part-time employee within the meaning of this section.

§23-4-7. Release of medical information to employer; legislative findings; effect of application for benefits; duty of employer.

§23-4-7a. Monitoring of injury claims; legislative findings; review of medical evidence; recommendation of authorized treating physician; independent medical evaluations; temporary total disability benefits and the termination thereof; mandatory action; additional authority; suspension of benefits.

§23-4-7b. Trial return to work.

§23-4-8a. Occupational pneumoconiosis board; composition; term of office; duties; quorum; remuneration.

The occupational pneumoconiosis board shall consist of five licensed physicians who shall be appointed by the ~~commissioner~~ executive director. No person shall be appointed as a member of the board, or as a consultant thereto, who has not by special study or experience, or both, acquired special knowledge of pulmonary diseases. All members of the occupational pneumoconiosis board shall be physicians of good professional standing admitted to practice medicine and surgery in this state. ~~, and two of them~~ Two members shall be roentgenologists. One member of the board shall be designated annually as chairman by the ~~commissioner~~ executive director. The term of office of each member of the board shall be six years. The five members of the existing board in office on the effective date of this section shall continue to serve until their terms expire and until their successors have been appointed and have qualified. Any member of the board may be appointed to any number of terms. The function of the board is to determine all medical questions relating to cases of compensation for occupational pneumoconiosis under the direction and supervision of the ~~commissioner~~ executive director. Any three members of the board constitute a quorum for the transaction of its business if at least one of the members present is a roentgenologist. The ~~commissioner~~ executive director shall, from time to time, fix the compensation to be paid each member of the board.~~, and members~~ Members are also entitled to reasonable and necessary traveling and other expenses incurred while actually engaged in the performance of their duties. In fixing the compensation of board members, the ~~commissioner~~ executive director shall take into consideration the number of claimants a member of the board actually examines, the actual time spent by members in discharging their duties and the recommendation of the ~~compensation programs performance council~~ board of managers as to reasonable reimbursement per unit of time expended based on comparative data for physicians within the state in the same medical specialties.

§23-4-8b. Occupational pneumoconiosis board; procedure; autopsy.

§23-4-8c. Occupational pneumoconiosis board; reports and distribution thereof; presumption; findings required of board; objection to findings; procedure thereon; limitations on refilings; consolidation of claims.

          (a) The occupational pneumoconiosis board, as soon as practicable, after it has completed its investigation, shall make its written report, to the ~~commissioner~~ commission of its findings and conclusions on every medical question in controversy and the ~~commissioner~~ commission shall send one copy ~~thereof~~ of the report to the employee or claimant and one copy to the employer.~~, and the~~ The board shall also return to and file with the ~~commissioner~~ commission all the evidence as well as all statements under oath, if any, of the persons who ~~appear~~ appeared before it on behalf of the employee or claimant, or employer, and also all medical reports and X-ray examinations produced by or on behalf of the employee or claimant, or employer.
          (b) If it can be shown that the claimant or deceased employee has been exposed to the hazard of inhaling minute particles of dust in the course of and resulting from his or her employment for a period of ten years during the fifteen years immediately preceding the date of his or her last exposure to such hazard and that ~~such~~ the claimant or deceased employee has sustained a chronic respiratory disability, ~~then~~ it shall be presumed that ~~such~~ the claimant is suffering or ~~such~~ the deceased employee was suffering at the time of his or her death from occupational pneumoconiosis which arose out of and in the course of his or her employment. This presumption ~~shall~~ is not be conclusive.
          (c) The findings and conclusions of the board shall set forth, among other things, the following:
          (1) Whether or not the claimant or the deceased employee has contracted occupational pneumoconiosis and, if so, the percentage of permanent disability resulting therefrom;
          (2) Whether or not the exposure in the employment was sufficient to have caused the claimant's or deceased employee's occupational pneumoconiosis or to have perceptibly aggravated an existing occupational pneumoconiosis or other occupational disease; and
          (3) What, if any, physician appeared before the board on behalf of the claimant or employer and what, if any, medical evidence was produced by or on behalf of the claimant or employer.
          (d) If either party objects to the whole or any part of ~~such~~ the findings and conclusions of the board, ~~such~~ the party shall file with the ~~commissioner~~ commission or, on or after the first day of July, one thousand nine hundred ninety-one, with the office of judges, within thirty days from receipt of ~~such~~ the copy to ~~such~~ that party, unless for good cause shown the ~~commissioner~~ commission or chief administrative law judge extends ~~such~~ the time, ~~such~~ the party's objections ~~thereto~~ to the findings and conclusions of the board in writing, specifying the particular statements of the board's findings and conclusions to which such party objects. The filing of an objection within the time specified is ~~hereby declared to be~~ a condition of the right to litigate ~~such~~ the findings and ~~hence~~ therefor jurisdictional. After the time has expired for the filing of objections to the findings and conclusions of the board, the ~~commissioner~~ commission or administrative law judge shall proceed to act as provided in this chapter. If after the time has expired for the filing of objections to the findings and conclusions of the board no objections have been filed, the report of a majority of the board of its findings and conclusions on any medical question shall be taken to be plenary and conclusive evidence of the findings and conclusions ~~therein~~ stated in the report. If objection has been filed to the findings and conclusions of the board, notice ~~thereof~~ of the objection shall be given to the board, and the members ~~thereof~~ of the board joining in ~~such~~ the findings and conclusions shall appear at the time fixed by the ~~commissioner~~ commission or office of judges for the hearing to submit to examination and cross-examination in respect to ~~such~~ the findings and conclusions. At ~~such~~ the hearing, evidence to support or controvert the findings and conclusions of the board shall be limited to examination and cross-examination of the members of the board and to the taking of testimony of other qualified physicians and roentgenologists.
          (e) In the event that a claimant receives a final decision that he or she has no evidence of occupational pneumoconiosis, ~~then such~~ the claimant is barred for a period of three years from the date of the occupational pneumoconiosis board's decision or until his or her employment with the employer who employed the claimant at the time designated as the claimant's last date of exposure in the denied claim has terminated, whichever is sooner, from filing a new claim or pursuing a previously filed, but unruled upon, claim for occupational pneumoconiosis or requesting a modification of any prior ruling finding him or her not to be suffering from occupational pneumoconiosis. For the purposes of this subsection, a claimant's employment shall be ~~deemed~~ considered to be terminated if, for any reason, he or she has not worked for that employer for a period in excess of ninety days. Any previously filed, but unruled upon, claim shall be consolidated with the claim in which the board's decision is made and shall be denied together with the decided claim. The provisions of this subsection shall not be applied in any claim where doing so would, in and of itself, later cause a claimant's claim to be forever barred by the provisions of section fifteen of this article.
§23-4-9. Physical and vocational rehabilitation.
          (a) The Legislature hereby finds that it is a goal of the workers' compensation program to assist ~~workers~~ employees to return to suitable gainful employment after an injury. In order to encourage workers to return to employment and to encourage and assist employers in providing suitable employment to injured employees, it ~~shall be~~ is a priority of the ~~commissioner~~ commission to achieve early identification of individuals likely to need rehabilitation services and to assess the rehabilitation needs of these injured employees. It ~~shall be~~ is the goal of rehabilitation to return injured ~~workers~~ employees to employment which ~~shall be~~ is comparable in work and pay to that which the individual performed prior to the injury. If a return to comparable work is not possible, the goal of rehabilitation ~~shall be~~ is to return the individual to alternative suitable employment, using all possible alternatives of job modification, restructuring, reassignment and training, so that the individual will return to productivity with his or her employer or, if necessary, with another employer. The Legislature further finds that it is the shared responsibility of the employer, the employee, the physician and the ~~commissioner~~ commission to cooperate in the development of a rehabilitation process designed to promote reemployment for the injured employee.
          (b) In cases where an employee has sustained a permanent disability, or has sustained an injury likely to result in temporary disability ~~in excess of one hundred twenty days, and such fact has been~~ as determined by the ~~commissioner~~ commission, the ~~commissioner~~ commission shall at the earliest possible time determine whether the employee would be assisted in returning to remunerative employment with the provision of rehabilitation services and if the ~~commissioner~~ commission determines that the employee can be physically and vocationally rehabilitated and returned to remunerative employment by the provision of rehabilitation services including, but not limited to, vocational or on-the-job training, counseling, assistance in obtaining appropriate temporary or permanent work site, work duties or work hours modification, by the provision of crutches, artificial limbs or other approved mechanical appliances, or medicines, medical, surgical, dental or hospital treatment or other services which the commission in its sole discretion determines will directly assist the employee's return to remunerative employment, the ~~commissioner~~ commission shall ~~forthwith~~ immediately develop a rehabilitation plan for the employee and, after due notice to the employer, expend ~~such~~ an amount ~~as may be~~ necessary for ~~the aforesaid~~ that purposes: Provided, That ~~such~~ the expenditure for vocational rehabilitation shall not exceed ~~ten~~ twenty thousand dollars for any one injured employee: Provided, however, That no payment shall be made for such vocational rehabilitation purposes as provided in this section unless authorized by the ~~commissioner~~ commission prior to the rendering of ~~such~~ the physical or vocational rehabilitation, except that payments shall be made for reasonable medical expenses without prior authorization if sufficient evidence exists which would relate the treatment to the injury and the attending physician or physicians have requested authorization prior to the rendering of ~~such~~ the treatment: Provided further, That payment for physical rehabilitation, including the purchase of prosthetic devices and other equipment and training in use of ~~such~~ the devices and equipment, ~~shall be~~ are considered expenses within the meaning of section three of this article and ~~shall be~~ are subject to the provisions of said section and section three-a, three-b and three-c of this article. The provision of any rehabilitation services shall be pursuant to a rehabilitation plan to be developed and monitored by a rehabilitation professional for each injured employee. The executive director shall consult with and report at least annually to the legislative oversight commission on workforce investment for economic development to obtain the most appropriate training using all available resources.
          (c) In every case in which the ~~commissioner shall order~~ commission orders physical or vocational rehabilitation of a claimant as provided ~~herein~~ in this section, the claimant shall, during the time he or she is receiving any vocational rehabilitation or rehabilitative treatment that renders him or her totally disabled during the period ~~thereof~~ of rehabilitation, be compensated on a temporary total disability basis for ~~such~~ that period.
          (d) In every case in which the claimant returns to gainful employment as part of a rehabilitation plan, and the employee's average weekly wage earnings are less than the average weekly wage earnings earned by the injured employee at the time of the injury, he or she shall receive temporary partial rehabilitation benefits calculated as follows: The temporary partial rehabilitation benefit shall be seventy percent of the difference between the average weekly wage earnings earned at the time of the injury and the average weekly wage earnings earned at the new employment, both to be calculated as provided in sections six, six-d and fourteen of this article as ~~such~~ the calculation is performed for temporary total disability benefits, subject to the following limitations: In no event ~~shall such~~ are the benefits be subject to the minimum benefit amounts required by the provisions of subdivision (b), section six of this article, nor ~~shall such~~ may the benefits exceed the temporary total disability benefits to which the injured employee would be entitled pursuant to sections six, six-d and fourteen of this article during any period of temporary total disability resulting from the injury in the claim: Provided, That no temporary total disability benefits shall be paid for any period for which temporary partial rehabilitation benefits are paid. The amount of temporary partial rehabilitation benefits payable under this subsection shall be reviewed every ninety days to determine whether the injured employee's average weekly wage in the new employment has changed and, if ~~such~~ the change has occurred, the amount of benefits payable under this subsection shall be adjusted prospectively. Temporary partial rehabilitation benefits shall only be payable when the injured employee is receiving vocational rehabilitation services in accordance with a rehabilitation plan developed under this section.
          (e) The ~~commissioner~~ executive director, in conjunction with the board of managers, shall promulgate rules for the purpose of developing a comprehensive rehabilitation program which will assist injured workers to return to suitable gainful employment after an injury in a manner consistent with the provisions and findings of this section. ~~Such~~ The rules shall provide definitions for rehabilitation facilities and rehabilitation services pursuant to this section.
          (f) The reenactment of the provisions of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-nine is for the purpose of reestablishing the rehabilitation program heretofore created by virtue of the provisions of this section and the rules promulgated pursuant thereto for all injured employees who sustained injuries on or after the first day of July, one thousand nine hundred ninety-eight. To this end, the performance council is directed to reenact the rules promulgated under the prior enactment of this section within fifteen days of the effective date hereof and the commissioner shall promulgate any revisions to the rules for review by the performance council on or before the first day of July, one thousand nine hundred ninety- nine.

§23-4-9b. Preexisting impairments not considered in fixing amount of compensation.

          Where an employee has a definitely ascertainable impairment resulting from an occupational or a nonoccupational injury, disease or any other cause, whether or not disabling, and ~~such~~ the employee ~~shall~~ thereafter ~~receive~~ receives an injury in the course of and resulting from his or her employment, unless ~~such~~ the subsequent injury results in total permanent disability within the meaning of section one, article three of this chapter, ~~such impairment~~ the prior injury, and the effect ~~thereof~~ of the prior injury, and an aggravation ~~thereof~~, shall not be taken into consideration in fixing the amount of compensation allowed by reason of ~~such~~ the subsequent injury~~, and such compensation~~. Compensation shall be awarded only in the amount that would have been allowable had ~~such~~ the employee not had ~~such~~ the preexisting impairment. Nothing in this section ~~shall be construed to require~~ requires that the degree of ~~such~~ the preexisting impairment be definitely ascertained or rated prior to the injury received in the course of and resulting from ~~such~~ the employee's employment or that benefits must have been granted or paid for ~~such~~ the preexisting impairment. The degree of ~~such~~ the preexisting impairment may be established at any time by competent medical or other evidence. Notwithstanding the foregoing provisions of this section, if ~~such~~ the definitely ascertainable preexisting impairment resulted from an injury or disease previously held compensable and ~~such~~ the impairment had not been rated, benefits for ~~such~~ the impairment shall be payable to the claimant by or charged to the employer in whose employ the injury or disease occurred. The employee shall also receive ~~from the second injury reserve created by section one, article three of this chapter~~ the difference, if any, in the benefit rate applicable in the more recent claim and the prior claim.
§23-4-10. Classification of death benefits; 'dependent' defined.
          In case a personal injury, other than occupational pneumoconiosis or other occupational disease, suffered by an employee in the course of and resulting from his or her employment, causes death, and disability is continuous from the date of ~~such~~ the injury until the date of death, or if death results from occupational pneumoconiosis or from any other occupational disease, the benefits shall be in the amounts and to the persons as follows:
          (a) If there be are no dependents, the disbursements shall be limited to the expense provided for in sections three and four of this article;
          (b) If there be are dependents as defined in subdivision (d) of this section, ~~such~~ the dependents shall be paid for as long as their dependency ~~shall continue~~ continues in the same amount as that was paid or would have been paid the deceased employee for total disability had he or she lived. The order of preference of payment and length of dependence shall be as follows:
          (1) A dependent widow or widower until death or remarriage of ~~such~~ the widow or widower, and any child or children dependent upon the decedent until each ~~such~~ child ~~shall reach~~ reaches eighteen years of age or where ~~such~~ the child after reaching eighteen years of age continues as a full- time student in an accredited high school, college, university, business or trade school, until ~~such~~ the child reaches the age of twenty-five years, or if an invalid child, to continue as long as ~~such~~ the child remains an invalid. All ~~such~~ persons ~~shall be~~ are jointly entitled to the amount of benefits payable as a result of employee's death;
          (2) A wholly dependent father or mother until death; and
          (3) Any other wholly dependent person for a period of six years after the death of the deceased employee;
          (c) If the deceased employee leaves no wholly dependent person, but there are partially dependent persons at the time of death, the payment shall be fifty dollars a month to continue for ~~such~~ the portion of the period of six years after the death, as determined by the ~~division may determine~~ commission, but no ~~such~~ partially dependent person shall receive compensation payments as a result of the death of more than one employee.
          Compensation under subdivisions (b) and (c) of this ~~section~~ subsection shall, except as may be specifically provided to the contrary ~~therein~~ in those subsections, cease upon the death of the dependent, and the right ~~thereto~~ to the compensation shall not vest in his or her estate.
          (d) 'Dependent', as used in this chapter, ~~shall mean~~ means a widow, widower, child under eighteen years of age, or under twenty-five years of age when a full-time student as provided ~~herein~~ in this section, invalid child or posthumous child, who, at the time of the injury causing death, is dependent, in whole or part, for his or her support upon the earnings of the employee, stepchild under eighteen years of age, or under twenty-five years of age when a full-time student as provided ~~herein~~ in this section, child under eighteen years of age legally adopted prior to the injury causing death, or under twenty-five years of age when a full-time student as provided ~~herein~~ in this section, father, mother, grandfather or grandmother, who, at the time of the injury causing death, is dependent, in whole or in part, for his or her support upon the earnings of the employee; and invalid brother or sister wholly dependent for his or her support upon the earnings of the employee at the time of the injury causing death; and
          (e) If a person receiving permanent total disability benefits dies from a cause other than a disabling injury leaving any dependents as defined in subdivision (d) of this section, an award shall be made to ~~such~~ the dependents in an amount equal to one hundred four times the weekly benefit the worker was receiving at the time of his or her death and be paid either as a lump sum or in periodic payments, at the option of the dependent or dependents. Direct premium rating experience charges for the payment of ~~such~~ the benefits granted as a result of a second injury award of permanent total disability shall not be made to the employee's employer. It is the intent of the Legislature that the amendments to this subsection enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-nine be construed so as to make dependents eligible for benefits under this subsection retroactive to the second day of February, one thousand nine hundred ninety-five.
§23-4-11. To whom death benefits paid.
          The benefits, in case of death, shall be paid to ~~such~~ one or more dependents of the decedent, or to ~~such~~ any other persons, for the benefit of all of the dependents, as may be determined by the ~~commissioner~~ commission, who may apportion the benefits among the dependents in ~~such~~ the manner as ~~he may deem~~ they consider just and equitable. Payment to a dependent subsequent in right may be made if the ~~commissioner deems~~ commission considers proper and ~~shall operate~~ it operates to discharge all other claims ~~therefor~~ for the benefits.
§23-4-12. Application of benefits.
          The dependent or person to whom benefits are paid shall apply the ~~same~~ benefits to the use of the several beneficiaries ~~thereof~~ of the benefits according to their respective claims upon the decedent for support, in compliance with the finding and direction of the ~~commissioner~~ commission.
§23-4-14. Computation of benefits.
          (a) The average weekly wage earnings, wherever earned, of the injured person at the date of injury, and the average weekly wage in West Virginia as determined by the ~~commissioner~~ commission, in effect at the date of injury, shall be taken as the basis upon which to compute the benefits.
          (1) In cases involving occupational pneumoconiosis or other occupational diseases, the 'date of injury' ~~shall be~~ is the date of the last exposure to the hazards of occupational pneumoconiosis or other occupational diseases.
          (2) In computing benefits payable on account of occupational pneumoconiosis, the ~~commissioner~~ commission shall deduct the amount of all prior workers' compensation benefits paid to the same claimant on account of silicosis, but a prior silicosis award shall not, in any event, preclude an award for occupational pneumoconiosis otherwise payable under this article.
          (b) (1) Until the first day of July, one thousand nine hundred ninety-four, the expression 'average weekly wage earnings, wherever earned, of the injured person, at the date of injury', within the meaning of this chapter, shall be computed based upon the daily rate of pay at the time of the injury or upon the average pay received during the two months, six months or twelve months immediately preceding the date of the injury, whichever is most favorable to the injured employee, except for the purpose of computing temporary total disability benefits for part-time employees pursuant to the provisions of section six-d of this article.
          (2) On and after the first day of July, one thousand nine hundred ninety-four, the expression 'average weekly wage earnings, wherever earned, of the injured person, at the date of injury', within the meaning of this chapter, shall be computed based upon the daily rate of pay at the time of the injury or upon the weekly average derived from the best quarter of wages out of the preceding four quarters of wages as reported to the ~~commissioner~~ commission pursuant to ~~section eleven, article ten, chapter twenty-one-a of this code~~ subsection (b), section two, article two of this chapter, whichever is most favorable to the injured employee, except for the purpose of computing temporary total disability benefits for part-time employees pursuant to the provisions of section six-d of this article.
          (c) The expression 'average weekly wage in West Virginia', within the meaning of this chapter, ~~shall be~~ is the average weekly wage in West Virginia as determined by the ~~commissioner~~ commission in accordance with the provisions of ~~sections ten and eleven, article six, chapter twenty- one-a of this code~~ subsection (b), section two, article two of this chapter and other applicable provisions of said chapter.
          (d) In any claim for injuries, including occupational pneumoconiosis and other occupational diseases, occurring on or after the first day of July, one thousand nine hundred seventy-one, any award for temporary total, permanent partial or permanent total disability benefits or for dependent benefits shall be paid at the weekly rates or in the monthly amount in the case of dependent benefits applicable to the claimant ~~therein~~ in effect on the date of ~~such~~ the injury. If during the life of ~~such~~ the award for temporary total, permanent partial or permanent total disability benefits or for dependent benefits the weekly rates or the monthly amount in the case of dependent benefits are increased or decreased, the claimant shall receive ~~such~~ the increased or decreased benefits beginning as of the effective date of ~~said~~ the increase or decrease.
§23-4-15. Application for benefits.
          (a) To entitle any employee or dependent of a deceased employee to compensation under this chapter, other than for occupational pneumoconiosis or other occupational disease, the application ~~therefor must~~ for compensation shall be made on the form or forms prescribed by the ~~division~~ commission and filed with the ~~division~~ commission within six months from and after the injury or death, as the case may be, and unless so filed within ~~such~~ the six-month period, the right to compensation under this chapter ~~shall be~~ is forever barred, ~~such~~ the time limitation ~~being hereby declared to be~~ is a condition of the right and hence jurisdictional, and all proofs of dependency in fatal cases must ~~likewise~~ also be filed with the ~~division~~ commission within six months from and after the death. In case the employee is mentally or physically incapable of filing ~~such~~ the application, it may be filed by his or her attorney or by a member of his or her family.
          (b) To entitle any employee to compensation for occupational pneumoconiosis under the provisions ~~hereof~~ of this subsection, the application ~~therefor must~~ for compensation shall be made on the form or forms prescribed by the ~~division~~ commission and filed with the ~~division~~ commission within three years from and after the last day of the last continuous period of sixty days or more during which the employee was exposed to the hazards of occupational pneumoconiosis or within three years from and after ~~the employee's~~ a diagnosed impairment due to occupational pneumoconiosis was made known to ~~him or her~~ the employee by a physician ~~or which he or she should reasonably have known, whichever shall last occur~~, and unless so filed within ~~such~~ the three- year period, the right to compensation under this chapter ~~shall be~~ is forever barred, ~~such~~ the time limitation ~~being hereby declared to be~~ is a condition of the right and hence jurisdictional, or, in the case of death, the application shall be filed ~~as aforesaid~~ by the dependent of ~~such~~ the employee within one year from and after ~~such~~ the employee's death, and ~~such~~ the time limitation is a condition of the right and hence jurisdictional.
          (c) To entitle any employee to compensation for occupational disease other than occupational pneumoconiosis under the provisions ~~hereof~~ of this section, the application ~~therefor must~~ for compensation shall be made on the form or forms prescribed by the ~~division~~ commission and filed with the ~~division~~ commission within three years from and after the day on which the employee was last exposed to the particular occupational hazard involved or within three years from and after the employee's occupational disease was made known to him or her by a physician or which he or she should reasonably have known, whichever ~~shall~~ last ~~occur~~ occurs, and unless so filed within ~~such~~ the three-year period, the right to compensation under this chapter shall be forever barred, ~~such~~ the time limitation ~~being hereby declared to be~~ is a condition of the right and ~~hence~~ therefor jurisdictional, or, in case of death, the application shall be filed as aforesaid by the dependent of ~~such~~ the employee within one year from and after ~~such~~ the employee's death, and ~~such~~ the time limitation is a condition of the right and hence jurisdictional.
§23-4-15a. Nonresident alien beneficiaries.
          Notwithstanding any other provisions of this chapter, nonresident alien beneficiaries ~~shall be~~ are entitled to the same benefits as citizens of the United States: Provided, ~~however~~, That the ~~commissioner~~ commission in ~~his~~ its discretion may make, and ~~such~~ the beneficiary shall ~~be required to~~ accept, commutation of ~~such~~ the benefits into a lump sum settlement and payment. Nonresident alien beneficiaries within the meaning ~~hereof shall mean~~ of this section means persons not citizens of the United States residing outside of the territorial limits of the United States at the time of the injury with respect to which benefits are awarded.

§23-4-15b. Determination of nonmedical questions by commission; claims for occupational pneumoconiosis; hearing.

§23-4-16. Commission's jurisdiction over case continuous; modification of finding or order; time limitation on awards; reimbursement of claimant for expenses; reopening cases involving permanent total disability; promulgation of rules.

          (a) The power and jurisdiction of the ~~division~~ commission over each case ~~shall be~~ is continuing and the ~~division~~ commission may, in accordance with the ~~following~~ provisions of this section and after due notice to the employer, make ~~such~~ modifications or changes with respect to former findings or orders ~~as may be~~ that are justified. Upon and after the second day of February, one thousand nine hundred ninety-five, the period in which a claimant may request a modification, change or reopening of a prior award that was entered either prior to or after ~~such~~ that date shall be determined by the following ~~paragraphs~~ subdivisions of this subsection. Any ~~such~~ request that is made beyond ~~such~~ that period shall be refused.
          (1) Except as provided in section twenty-two of this article, in any claim which was closed without the entry of an order regarding the degree, if any, of permanent disability that a claimant has suffered, or in any case in which no award has been made, any ~~such~~ request must be made within five years of the closure. During that time period, only two ~~such~~ requests may be filed.
          (2) Except as stated below, in any claim in which an award of permanent disability was made, any ~~such~~ request must be made within five years of the date of the initial award. During that time period, only two ~~such~~ requests may be filed. With regard to those occupational diseases, including occupational pneumoconiosis, which are medically recognized as progressive in nature, if any such request is granted by the ~~division~~ commission, ~~then~~ a new five-year period ~~shall begin~~ begins upon the date of the subsequent award. With the advice of the health care advisory panel, the ~~commissioner and the compensation programs performance council~~ executive director and the board of managers shall by rule designate those progressive diseases which are customarily the subject of claims.
          (3) No further award may be made in fatal cases except within two years after the death of the employee.
          (4) With the exception of the items set forth in subsection (d), section three of this article, in any claim ~~wherein~~ in which medical or any type of rehabilitation service has not been rendered or durable medical goods or other supplies have not been received for a period of five years, ~~then~~ no request for additional medical or any type of rehabilitation benefits shall be granted nor shall any ~~such~~ medical or any type of rehabilitation benefits or any type of goods or supplies be paid for by the ~~division~~ commission if ~~such~~ they were provided without a prior request. For the exclusive purposes of this ~~paragraph~~ subdivision, medical services and rehabilitation services shall not include any encounter in which significant treatment was not performed.
          (b) In any claim in which an injured employee ~~shall make~~ makes application for a further period of temporary total disability, if ~~such~~ the application be is in writing and filed within the applicable time limit stated above, ~~then~~ the ~~division~~ commission shall pass upon the request within thirty days of the receipt of the request. If the decision is to grant the request, ~~then~~ the order shall provide for the receipt of temporary total disability benefits. In any case in which an injured employee ~~shall make~~ makes application for a further award of permanent partial disability benefits or for an award of permanent total disability benefits, if ~~such~~ the application be is in writing and filed within the applicable time limit as stated above, the ~~division~~ commission shall pass upon the request within thirty days of its receipt and, if the ~~division~~ commission determines that the claimant may be entitled to an award, the ~~division will then~~ commission shall refer the claimant for ~~such~~ further examinations ~~as may be~~ that are necessary.
          (c) If ~~such~~ the application is based on a report of any medical examination made of the claimant and submitted by the claimant to the ~~division~~ commission in support of his or her application, and the claim is opened for further consideration and additional award is later made, the claimant shall be reimbursed for the expenses of ~~such~~ the examination. ~~Such~~ The reimbursement shall be made by the ~~division~~ commission to the claimant, in addition to all other benefits awarded, upon due proof of the amount thereof being furnished the ~~division~~ commission by the claimant, but shall in no case exceed the sum fixed pursuant to the ~~division's~~ commission's schedule of maximum reasonable fees established under the provisions of section three of this article.
          (d) The ~~division shall have~~ commission has continuing power and jurisdiction over claims in which permanent total disability awards have been made after the eighth day of April, one thousand nine hundred ninety-three.
          (1) The ~~division~~ commission shall continuously monitor permanent total disability awards and may, from time to time, after due notice to the claimant, reopen a claim for reevaluation of the continuing nature of the disability and possible modification of the award: Provided, That ~~such~~ the reopenings shall not be done sooner than every two years: Provided, however, That any individual claimant shall only be reevaluated a total of two times after which he or she may not be again reevaluated under the provisions of this subsection. The ~~division~~ commission may reopen a claim for reevaluation when, in the ~~division's~~ commission's sole discretion, it concludes that there exists good cause to believe that the claimant no longer meets the eligibility requirements under subdivision (n), section six of this article. The eligibility requirements, including any vocational standards, shall be applied as those requirements are stated at the time of a claim's reopening: Provided further, That if a permanent total disability award was made on or after the eighth day of April, one thousand nine hundred ninety-three, and on or before the second day of February, one thousand nine hundred ninety-five, the eligibility requirements for the claimant upon a reopening ~~shall be~~ are the eligibility requirements which applied to his or her claim at the time the award was made. This section ~~shall not be~~ is not applicable to any claim in which the final decision on the eligibility of the claimant to a permanent total disability award was made more than ten years prior to the date of proposed reevaluation.
          (2) Upon reopening a claim under this subsection, the ~~division~~ commission may take evidence, have the claimant evaluated, make findings of fact and conclusions of law and shall vacate, modify or affirm the original permanent total disability award as the record requires. The claimant's former employer shall not be a party to the reevaluation, but shall be notified of the reevaluation and may submit ~~such~~ any information to the ~~division~~ commission as the employer may elect. In the event the claimant retains his or her award following the reevaluation, ~~then~~ the claimant's reasonable attorneys' fees incurred in defending the award shall be paid by the workers' compensation ~~division~~ commission from the supersedeas reserve of the surplus fund. In addition, the workers' compensation ~~division~~ commission shall reimburse a prevailing claimant for his or her costs in obtaining one evaluation on each issue during the course of the reevaluation with ~~such~~ the reimbursement being made from the supersedeas reserve of the surplus fund. The ~~compensation programs performance council~~ board of managers shall adopt criteria for the determination of reasonable attorneys' fees.
          (3) This subsection shall not be applied to awards made under the provisions of subdivision (m), section six of this article. The claimant may seek review of the ~~division's~~ commission's final order as otherwise provided for in article five of this chapter for review of orders granting or denying permanent disability awards.
          (e) A claimant may have only one active request for a permanent disability award pending in a claim at any one time. Any new ~~such~~ request that is made while another is pending shall be consolidated into the former request.
§23-4-16a. Interest on benefits.
          Whenever any award of temporary total, permanent partial or permanent total disability benefits or dependent benefits is made on or after the first day of July, one thousand nine hundred seventy-one, and a protest is filed ~~thereto~~ to the award or an appeal is taken ~~therefrom~~ from the award by an employer only and not by the claimant or dependent and the award is not ultimately denied or reduced following ~~such~~ the protest or appeal, the ~~commissioner~~ commission shall add ~~thereto~~ interest to the award at the simple rate of six percent per annum from the date the award would have been payable had ~~such~~ the protest or appeal not been filed or taken, exclusive of any period for which a continuance was granted upon motion of any party other than the protesting or appealing employer. Any interest payable shall be charged to the account of the protesting or appealing employer to the extent that the benefits upon which such interest is computed are charged to the account of ~~such~~ the employer.
§23-4-17. Commutation of periodical benefits.
          The ~~commissioner~~ commission, under special circumstances and when ~~the same~~ it is ~~deemed~~ considered advisable, may commute periodical benefits to one or more lump-sum payments. Upon the application of any claimant who has received an award of partial or total disability, who is not a citizen of the United States and desires to reside permanently beyond the territorial limits of the United States, or upon the application of an alien dependent of a deceased employee with respect of whose death award of compensation has been made, ~~such~~ the dependent residing in the territorial limits of the United States at the time of the decedent's death, and desiring to reside permanently beyond ~~such~~ the territorial limits of the United States, the ~~commissioner~~ commission may commute into one lump-sum payment the periodical payments to which ~~such~~ the claimant or dependent would be entitled, but at the rate of one half the amount that would be payable to a citizen of the United States under like circumstances.~~, and such~~ The lump-sum payment at the rate ~~aforesaid shall discharge~~ specified in this section discharges all liability with respect ~~of said~~ to the award, but in no event shall ~~such~~ the award be paid until ~~such~~ the claimant or dependent ~~shall have~~ has actually arrived and domiciled himself or herself outside the territorial limits of the United States, except a sufficient portion of ~~said~~ the award to pay transportation and other necessary expenses.

§23-4-18. Mode of paying benefits generally; exemptions of compensation from legal process.

          Except as provided by this section, compensation shall be paid only to ~~such~~ the employees or their dependents and ~~shall be~~ is exempt from all claims of creditors and from any attachment, execution or assignment other than compensation to counsel for legal services, under the provisions of and subject to the limitations contained in section sixteen, article five of this chapter, and other than for the enforcement of orders for child or spousal support entered pursuant to the provisions of chapter forty-eight of this code. Payments may be made in ~~such~~ the periodic installments as determined by the ~~division~~ commission in each case, but in no event less frequently than semimonthly for any temporary award and monthly for any permanent award. Payments for permanent disability shall be paid on or before the third day of the month in which they are due. In all cases where compensation is awarded or increased, the amount ~~thereof~~ of compensation shall be calculated and paid from the date of disability.
§23-4-20. Postmortem examinations.
          The ~~commissioner shall have authority~~ commission may, after due notice to the employer and claimant, whenever ~~he shall deem~~ it considers it necessary, to order an autopsy and may designate a duly licensed physician to make ~~such~~ the postmortem examination or examinations ~~as may be~~ that are necessary to determine the cause of the deceased employee's death.~~, and such~~ The physician shall file with the ~~commissioner~~ commission a written report of his or her findings.~~; the~~ The claimant and the employer, respectively, ~~shall~~ have the right to select a physician of his, her or its own choosing and, at his, her or its own expense, to participate in the postmortem examination.~~, and the~~ The respective physicians selected by the claimant and the employer ~~shall~~ have the right to concur in any report made by the physician selected by the ~~commissioner~~ commission, or each may file with the ~~commissioner~~ commission a separate report. In any case, including silicosis cases, in which either the employer or a claimant requests that an autopsy be performed, ~~then such~~ the autopsy shall be directed as ~~hereinbefore~~ provided in this section.~~, and in~~ In the event that a claimant for compensation for ~~such~~ the death refuses to consent and permit ~~such~~ the autopsy to be made all rights to compensation shall be forfeited.
§23-4-22. Permanent disability evaluations; limitations; notice.
          Notwithstanding any provision in this chapter to the contrary, any claim which was closed for the receipt of temporary total disability benefits or which was closed on a no-lost-time basis and which ~~closure~~ was more than five years prior to the effective date of this section shall not be considered to still be open or the subject for an evaluation of the claimant for permanent disability merely because ~~such~~ an evaluation has not ~~heretofore~~ previously been conducted and a decision on permanent disability has not been made: Provided, That if a request for an evaluation was made in ~~such~~ a claim prior to the twenty-ninth day of March, one thousand nine hundred ninety-three, the ~~commissioner~~ commission shall have ~~such~~ the evaluation performed. In every ~~such~~ instance, ~~such~~ a claim shall be a case in which no award has been made for the purposes of section sixteen of this article. In every claim closed after the effective date of this section, the ~~commissioner~~ commission shall give notice to the parties of the claimant's right to a permanent disability evaluation.

§23-4-23. Permanent total disability benefits; reduction of disability benefits; reduction of benefits; application of section; severability.

§23-4-24. Permanent total disability awards; retirement age; limitations on eligibility and the introduction of evidence; effects of other types of awards; procedures; requests for awards; jurisdiction.

          (a) Notwithstanding any provision of this chapter to the contrary, except as stated below, no claimant shall be awarded permanent total disability benefits arising under subdivision (d) or (n), section six of this article or section eight-c of this article who terminates active employment and is receiving full old-age retirement benefits under the Social Security Act, 42 U. S. C. 401 and 402. Any ~~such~~ claimant shall be evaluated only for the purposes of receiving a permanent partial disability award premised solely upon the claimant's impairments. This subsection ~~shall~~ is not be applicable in any claim in which the claimant has completed the submission of his or her evidence on the issue of permanent total disability prior to the later of the following: Termination of active employment or the initial receipt of full old-age retirement benefits under the Social Security Act. Once the claimant has terminated active employment and has begun to receive full old-age social security retirement benefits, the claimant ~~shall not be permitted to~~ may not produce additional evidence of permanent total disability before the ~~division~~ commission or the office of judges nor shall ~~such a~~ the claim be remanded for the production of ~~such~~ the evidence.
          (b) For the purposes of subdivisions (d) and (n), section six of this article, the award of permanent partial disability benefits under the provisions of section six-b of this article or under that portion of section six-a of this article which awards twenty weeks of benefits to a claimant who has occupational pneumoconiosis but without measurable pulmonary impairment therefrom shall not be counted towards the eighty-five percent needed to gain the rebuttable presumption of permanent total disability or towards the fifty percent threshold of paragraph (1), subdivision (n), section six of this article when such claimant has terminated active employment and is receiving federal nondisability pension or retirement benefits, including old-age benefits under the Social Security Act. This subsection shall not affect any other awards of permanent partial disability benefits and their use in achieving the rebuttable eighty-five percent presumption or the fifty percent threshold.
          ~~(c)~~ (b) The workers' compensation ~~division shall have~~ commission has the sole and exclusive jurisdiction to initially hear and decide any claim or request pertaining, in whole or in part, to subdivision (d) or (n), section six of this article. Any claim or request for permanent total disability benefits arising under ~~said~~ the subdivisions shall first be presented to the ~~division~~ commission as part of the initial claim filing or by way of an application for modification or adjustment pursuant to section sixteen of this article. The office of judges may consider ~~such~~ a claim only after the ~~division~~ commission has entered an appropriate order.

§23-4-25. Permanent total disability benefits; reduction of disability benefits for wages earned by claimant.

          (a) After the eighth day of April, one thousand nine hundred ninety-three, a reduction in the amount of benefits as specified in subsection (b) of this section shall be made whenever benefits are being paid for a permanent total disability award regardless of when ~~such~~ the benefits were awarded. This section is not applicable to the receipt of medical benefits or the payment ~~therefor~~ for medical benefits, the receipt of permanent partial disability benefits, the receipt of benefits by partially or wholly dependent persons, or to the receipt of benefits pursuant to the provisions of subsection (e), section ten of this article. Prior to the application of this section to any claimant, the ~~division~~ commission shall give the claimant notice of the effect of this section upon a claimant's award if and when ~~such~~ the claimant later earns wages.
          (b) Whenever applicable benefits are paid to a claimant with respect to the same time period in which the claimant has earned wages as a result of his or her employment, the following reduction in applicable benefits shall be made. The claimant's applicable monthly benefits and monthly net wages received from the current employment shall be added together. If ~~such~~ the total exceeds by more than one hundred twenty percent of the amount of the claimant's monthly net wages earned during his or her last employment prior to the award of permanent total disability benefits, ~~then such~~ the excess shall be reduced by one dollar for each two dollars that the claimant's monthly benefits and monthly net wages exceed the one hundred twenty percent level: Provided, That in no event shall applicable benefits be reduced below the minimum weekly benefits as provided for in subdivisions (b) and (d), section six of this article.
ARTICLE 4A. DISABLED WORKER'S RELIEF FUND.
§23-4A-1. Disabled worker's relief fund created.
          For the relief of persons who are receiving benefits pursuant to a permanent total disability award in amounts less than thirty-three and one-third percent of the average weekly wage for the state of West Virginia per month, and for the relief of widows who are receiving benefits on account of the death of an employee in amounts less than thirty-three and one-third percent of the average weekly wage in the state of West Virginia per month, and for the relief of children of employees deceased before one thousand nine hundred sixty-seven, who are under the age of twenty-three and who are full-time students, and for the relief of other persons who are receiving dependents' benefits on account of the death of an employee in amounts less than the specific monetary amounts set forth in section ten, article four of this chapter and in effect as of the first day of July, one thousand nine hundred seventy-three, there is ~~hereby created~~ continued a separate fund to be known as the 'Disabled ~~Workmen's~~ Worker's Relief Fund', which ~~fund~~ shall consist of ~~such~~ any sums as that are, from time to time, made available to carry out the objects and purposes of this article. ~~Said~~ The fund shall be in the custody of the state treasurer and disbursements ~~therefrom~~ from the fund shall be made upon requisition signed by the ~~commissioner~~ executive director to those persons entitled to participate ~~therein~~ in the fund and in such amounts to each participant ~~as is~~ that are provided in section three of this article.
§23-4A-3. Computation of benefits.
          Each individual entitled to participate in the disabled workers' relief fund ~~shall be~~ is entitled to receive payments without application (except that an application shall be required under section five of this article) from ~~said~~ the fund of an amount equal to the difference between the amounts set forth in section one of this article and the amount ~~said~~ the individual is in fact receiving by virtue of and under the laws of this state. The first ~~such~~ payment shall be made concurrently with the payment to him or her of workers' compensation on the first day of August, one thousand nine hundred seventy-six, and subsequent payments shall be made during the period thereafter in which ~~such~~ the participant ~~shall be~~ is entitled to workers' compensation benefits by virtue of and under the laws of this state.
§23-4A-5. Employers providing own system of compensation.
          The ~~commissioner~~ executive director shall promptly require of each employer who has elected to pay direct compensation ~~direct~~ under the provisions of section nine, article two of this chapter a verified list of the names and addresses of all persons to whom ~~such~~ the employer is paying workers' compensation on account of permanent total disability or because of the death of an employee and ~~such~~ any evidence respecting ~~such~~ those persons as the ~~commissioner~~ executive director may reasonably consider necessary to determine the eligibility of any ~~such~~ person to participate in the disabled workers' relief fund. Any person claiming the right to participate in ~~said~~ the fund under the provisions of this section may file his or her application ~~therefor~~ for participation with the ~~commissioner~~ executive director and shall be accorded a hearing ~~thereon~~ on the application.

§23-4A-6. Powers of commission over disabled workers' relief fund.

In the investigation and determination of the right of persons to participate in the disabled workers' relief fund, the ~~commissioner shall have~~ executive director has and may exercise all the powers which he or she possesses under the other articles of this chapter. His or her powers and jurisdiction over each case ~~shall be~~ is continuing, but there shall be no appeal from ~~his~~ the commission's decisions to any other body or tribunal. No attorney, representative or agent of any claimant or participant shall be is entitled to charge or receive a fee or compensation or gratuity in any form for representing or assisting or pretending to represent or assist any person to become a participant in ~~said~~ the disabled workers' relief fund.

§23-4A-8. Disabled workers' relief fund; how funded.

          For the purpose of carrying out the provisions of this article, the ~~commissioner~~ board of managers shall transfer annually, out of the interest earned during the previous year on investments held by the workers' compensation fund, and out of the amount assessed against self-insured employers pursuant to the provisions of section two, article two of this chapter an amount estimated by the ~~commissioner~~ executive director to be necessary to carry out the provisions of this article for one year.
          ~~Such~~ The money shall be deposited by the ~~commissioner~~ board of managers in the disabled workers' relief fund, as required by this article.
ARTICLE 4B. COAL-WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-2. Coal-workers' pneumoconiosis fund established.
          For the relief of persons who are entitled to receive benefits by virtue of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, there is ~~hereby established~~ continued a fund to be known as the coal-workers' pneumoconiosis fund, which fund shall be separate from the workers' compensation fund. The coal-workers' pneumoconiosis fund shall consist of premiums and other funds paid ~~thereto~~ to the fund by employers, subject to the provisions of Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended, who shall elect to subscribe to ~~such~~ the fund to ensure the payment of benefits required by ~~such~~ the act.
          The state treasurer shall be the custodian of the coal-workers' pneumoconiosis fund, and all premiums, deposits or other moneys paid ~~thereto~~ to the fund shall be deposited in the state treasury to the credit of the coal-workers' pneumoconiosis fund. Disbursements from ~~such~~ the fund shall be made upon requisition signed by the ~~commissioner~~ executive director of the workers' compensation commission to those persons entitled to participate ~~therein~~ in the fund. The West Virginia state board of investments ~~shall have authority to~~ may invest any surplus, reserve or other moneys belonging to the coal-workers' pneumoconiosis fund in accordance with article six, chapter twelve of this code.
§23-4B-5. Payment of benefits.
          Upon receipt of an order of compensation issued pursuant to a claim for benefits filed under the provisions of Title IV of the Federal Coal Mine Health and Safety Act of 1969, as amended, the ~~commissioner~~ executive director shall disburse the coal-workers' pneumoconiosis fund in ~~such~~ the amounts and to ~~such~~ the persons as ~~said~~ directed by the order ~~shall direct~~.
§23-4B-6. Coal-workers' pneumoconiosis fund; how funded.
          For the purpose of creating the coal-workers' pneumoconiosis fund, each employer, who ~~shall elect~~ elects to subscribe to ~~such~~ the fund, shall pay premiums based upon and being ~~such~~ a percentage of the payroll of ~~such~~ the employer as determined by the ~~commissioner may determine~~ board of managers. It ~~shall be~~ is the duty of the ~~commissioner~~ board of managers to fix and maintain the lowest possible rates of premiums consistent with the maintenance of a solvent fund and the creation and maintenance of a reasonable surplus after providing for payment to maturity of all liability insured pursuant to Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended. ~~Such~~ The rates shall be adjusted annually or more often as may, in the opinion of the ~~commissioner~~ board of managers, be necessary.
          The ~~commissioner~~ board of managers may by rule ~~and regulation~~ classify subscribers into groups or classes according to the nature of the hazards incident to the business ~~thereof~~ of the subscribers and assign premium rates ~~thereto~~ to the subscribers. In addition, the ~~commissioner~~ board of managers may by rule ~~and regulation~~ prescribe procedures for subscription, payroll reporting, premium payment, termination of subscription, reinstatement and other matters pertinent to ~~such~~ the subscribers' continuing participation in the coal-workers' pneumoconiosis fund.
§23-4B-7. Administration.
          The coal-workers' pneumoconiosis fund shall be administered by the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission, who shall employ ~~such~~ any employees ~~as may be~~ necessary to discharge his or her duties and responsibilities under this article. All payments of salaries and expenses of ~~such~~ the employees and all expenses peculiar to the administration of this article shall be made by the state treasurer from the coal-workers' pneumoconiosis fund upon requisitions signed by the ~~commissioner~~ executive director.
§23-4B-8. Separable from workers' compensation fund.
          (a) No disbursements shall be made from the workers' compensation fund on account of any provision of this article: Provided, That the Legislature may at any time merge, consolidate, alter or liquidate this fund as it may determine and in no instance shall the operation of this article be construed as creating any contract which would deprive any injured employee of future benefits or increases awarded by an act of Congress, nor shall this section operate to create any liability upon the state of West Virginia.
          (b) The Legislature hereby finds and declares that there is a substantial actuarial surplus in the coal-workers' pneumoconiosis fund in excess of two hundred million dollars. The Legislature further finds and declares that there is a substantial actuarial deficit in the workers' compensation fund in excess of four hundred million dollars and that this deficit is in large part attributable to claims arising out of the coal industry. The ~~commissioner~~ executive director is hereby directed to conduct an actuarial audit to determine the amount, computed at book value, of the actuarial surplus in the coal-workers' pneumoconiosis fund as of the thirtieth day of June, one thousand nine hundred ninety, and to certify ~~such~~ that amount, as of that date, in a written order which together with the results of ~~said~~ the audit ~~shall be~~ are a public record. Notwithstanding the provisions of subsection (a) of this section or any other provision of this article to the contrary, the ~~commissioner~~ executive director shall, by written order, transfer the assets underlying ~~said~~ the surplus to the workers' compensation fund, which assets shall thereupon become merged into and consolidated with the workers' compensation fund: Provided, That the value of the assets so transferred, when computed according to the book value of ~~said~~ the assets on the date of transfer, shall not exceed two hundred fifty million dollars: ~~Provided, however~~, That such assets so transferred shall be held in a separate account and shall not be used for the satisfaction of obligations of the workers' compensation fund until all other assets of the workers' compensation fund have been expended: Provided, ~~further~~ however, That the income earned, from time to time, on the assets so transferred may be used to satisfy obligations of the workers' compensation fund: ~~And provided~~ Provided further, That a sufficient reserve shall be retained in the coal-workers' pneumoconiosis fund to guarantee the payment of all claims incurred, including claims which were incurred but not reported, on or before the thirtieth day of June, one thousand nine hundred ninety: And provided further, That any moneys due and owing to the coal-workers' pneumoconiosis fund as a result of any transfer of moneys pursuant to section eight-a of this article shall be construed as an asset of the coal-workers' pneumoconiosis fund and shall be included as an asset transferred to the workers' compensation fund under the provisions of this section. If at any time subsequent to the transfer of the ~~aforesaid~~ assets described in subsection (b) of this section to the workers' compensation fund the standards for obtaining benefits under Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended and as subsequently amended, are changed ~~such~~ so that the actuarial audit performed ~~hereunder~~ under this section may no longer accurately reflect the liabilities of the coal-workers' pneumoconiosis fund for claims arising prior to the first day of July, one thousand nine hundred ninety, the ~~commissioner~~ board of managers shall promptly conduct a new audit to determine whether any portion of the ~~foregoing~~ separate account created under subsection (b) of this section should be returned to the coal-workers' pneumoconiosis fund in order to provide adequate reserves for claims arising prior to the first day of July, one thousand nine hundred ninety, and, if the results of ~~such~~ the new audit determine that ~~said~~ the reserves are inadequate, the ~~commissioner~~ board of managers shall transfer back to the coal-workers' pneumoconiosis fund that portion of the assets in the separate account necessary to provide adequate reserves for ~~such~~ the claims.
          (c) The assets which were previously transferred from the coal-workers' pneumoconiosis fund and held in a separate account in accordance with the provisions of subsection (b) of this section shall, on or after the first day of July, two thousand three, be made available for use, along with other drastic measures provided for in this chapter, to ameliorate the emergency conditions and deficit which threaten to consume the workers' compensation fund. Prior to using any moneys to pay down the workers' compensation deficit, the board of managers shall promptly conduct an actuarial study to determine whether any portion of the separate account created under subsection (b) of this section should be returned to the coal-workers' pneumoconiosis fund in order to provide adequate reserves for claims or increased costs based on changes in the standards for obtaining benefits under Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended.
__________(d) The Legislature hereby finds and declares that there is, as of the thirtieth day of December, two thousand two, a substantial actuarial surplus in the coal-workers' pneumoconiosis fund. The Legislature further finds and declares that there is a substantial actuarial deficit in the workers' compensation fund in excess of six billion dollars on a full accrued value basis, and that this deficit is in large part attributable to claims arising out of the coal industry. During the regular session of the Legislature in the year two thousand three, severe and drastic measures have been enacted to save the workers' compensation fund. However, if some unforseen event causes expenditures to be greater than income the executive director may under the following conditions transfer the actuarial surplus from the coal-workers' pneumoconiosis fund to the workers' compensation fund. Prior to any transfer, the executive director shall first conduct an actuarial audit to determine the amount, computed at book value, of the actuarial surplus in the coal-workers' pneumoconiosis fund and to certify the amount, as of that date, in a written order which together with the results of the audit is a public record. Prior to utilizing any moneys to pay down the workers' compensation deficit, the board of managers shall promptly conduct an actuarial study to determine whether any portion of the separate account created in subsection (b) of this section should be returned to the coal-workers' pneumoconiosis fund in order to provide adequate reserves for claims or increased costs based on changes in the standards for obtaining benefits under Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended. The executive director shall also conduct an actuarial audit to determine the amount, computed at book value, of the actuarial deficit in the workers' compensation fund and certify the amount, as of that date, in a written order which together with the results of the audit shall be a public record. Notwithstanding the provisions of subsection (a) of this section or any other provision of this article to the contrary, the executive director shall, by written order, transfer the assets underlying the surplus to the workers' compensation fund. The assets shall be merged into and consolidated with the workers' compensation fund: Provided, That the value of the assets transferred, when computed according to the book value of the assets on the date of transfer, shall not exceed one hundred million dollars. Prior to transferring any funds from the coal-workers' pneumoconiosis fund the executive director shall not increase benefit rates as provided in section four, article four of this chapter and conduct an investigation into the causes of the deficit and determine the best course of action to alleviate the shortfall. Prior to transferring funds as authorized by this subsection, the executive director shall report to the governor and the joint committee on government and finance as to the nature of the deficit and the need for corrective action. No funds may be transferred without the authorization of the Legislature's joint committee on government and finance.

§23-4B-8a. Legislative findings; transfers to the state; maximum transfer authorization; purpose for which moneys transferred may be disbursed and expended; maximum amount of transfer authorization; terms and conditions for repayment; premiums to be set without regard to transfers; creation of special account in state treasury.

          (a) The Legislature hereby finds and declares that there is a casual deficit in the general revenue fund of this state because of the failure of the state's taxation program to produce the estimated revenues, ~~such~~ the deficit condition having come into existence from ordinary expenses of the state without design and unexpectedly; that there is a large surplus of moneys in the coal- workers' pneumoconiosis fund; that transfers not to exceed thirty million dollars from the coal- workers' pneumoconiosis fund will assist in financing government operations, without in any way affecting the solvency of the coal-workers' pneumoconiosis fund; and that the interest being earned on the coal-workers' pneumoconiosis fund each year has for some time exceeded thirty million dollars. This section is enacted in view of these findings.
          (b) Whenever the governor determines that the general revenue fund available for expenditure is insufficient for the timely payment for government operations, the treasurer, state board of investments and the ~~commissioner~~ executive director shall transfer moneys from the coal- workers' pneumoconiosis fund to the special account created in the state treasury by subsection (f) of this section, in the amounts determined by the governor to be sufficient and necessary to meet ~~such~~ the payments. The total of the amounts transferred may not exceed thirty million dollars, and the transfers ~~shall be~~ are subject to the payment of interest equal to the actual interest rate earned by the coal-workers' pneumoconiosis fund on the day of each transfer for the period of each transfer until repayment.
          (c) Any ~~such~~ transfer may be used only for payments for medicaid reimbursement.
          (d) Full repayment of all transfers, with interest, shall be made to the coal-workers' pneumoconiosis fund by budget action as first priority from the moneys available for each fiscal year as follows: At least one fifth of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred eighty-nine; at least one fourth of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety; at least one third of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety-one; at least one half of the outstanding amount with interest shall be repaid no later than the thirtieth day of June, one thousand nine hundred ninety-two; and the balance of the remaining amount transferred shall be repaid with interest no later than the thirtieth day of June, one thousand nine hundred ninety-three. Repayment transfers shall be made by budget action as first priority from the moneys available for each fiscal year and, as made, shall not be deemed to renew, restore or increase in any way the maximum amount of thirty million dollars herein authorized.
          (e) The rates of premiums to be paid for coverage by the coal-workers' pneumoconiosis fund shall be determined by the ~~commissioner~~ board of managers with like effect as if all ~~such~~ the transfers had not been made but had, together with the interest earned ~~thereon~~ on the transfers, been available for use by the coal-workers' pneumoconiosis fund.
          (f) There is ~~hereby created~~ continued in the state treasury a special account for the deposit, withdrawal and repayment of moneys transferred pursuant to this section and to invoke the applicability of the special fund doctrine with respect to budgetary transfer activities involving more than one fiscal year.
ARTICLE 4C. EMPLOYERS' EXCESS LIABILITY FUND.
§23-4C-2. Employers' excess liability fund established.
          (a) To provide insurance coverage for employers subject to this chapter who may be subjected to liability for any excess of damages over the amount received or receivable under this chapter, the ~~division~~ commission may continue the fund known as the employers' excess liability fund, which fund shall be separate from the workers' compensation fund. The employers' excess liability fund shall consist of premiums paid ~~thereto~~ to it by employers who may voluntarily elect to subscribe to the fund for coverage of potential liability to any person who may be entitled to any excess of damages over the amount received or receivable under this chapter.
          (b) The ~~commissioner and the compensation programs performance council are authorized to~~ board of managers provide for, by the promulgation of a rule pursuant to ~~subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this code~~ section one-a, article one of this chapter, the continuance, abolition or sale of the employers' excess liability fund established by section one of this article. In the event that the fund is to be sold, the sale shall be conducted through the solicitation of competitive bids. Any funds that ~~may~~ remain after the sale or abolition of the employers' excess liability fund shall be paid into and become a part of the workers' compensation fund to be used for the purposes of that fund. In the event that the employers' excess liability fund program is abolished and the remaining liabilities of that program exceed the amount retained in the employers' excess liability fund, ~~such~~ the excess liability including the costs of administration shall be paid for from the workers' compensation fund.
§23-4C-3. Payment of excess damages from fund.
          Upon receipt of a final order of a court determining the liability under section two, article four of this chapter of a subscribing employer and the amount of the excess of damages over the amount received or receivable under this chapter, the ~~commissioner~~ executive director shall make disbursements from the employers' excess liability fund in ~~such~~ the amounts and to ~~such~~ the persons as ~~such~~ directed by the final order ~~may direct~~. In the event of a proposed settlement of a disputed claim against a subscribing employer, the ~~commissioner~~ executive director, upon approving the settlement upon petition by the subscribing employer, shall make disbursements from the employers' excess liability fund in ~~such~~ the amounts and to ~~such~~ the persons as specified the approved settlement ~~may specify~~. In the event of the settlement of any disputed claim ~~wherein~~ in which one or more of the persons entitled to the proceeds to be paid pursuant to ~~such~~ the settlement is under a legal disability by reason of age, mental incapacity or other reason, ~~such~~ the settlement, if required by other provisions of law to be approved by a circuit court shall be approved by the circuit court of the county ~~wherein such~~ in which the person under disability is a resident or ~~wherein~~ in which a civil action could be brought and maintained upon ~~such~~ the claim, in addition to being approved by the ~~commissioner~~ commission as required by this section. The ~~commissioner~~ executive director shall by ~~legislative~~ rule establish criteria and procedures for the settlement of all disputed claims. In order to expeditiously establish such criteria and procedures, the commissioner is hereby given authority to promulgate such emergency rule or rules as may be necessary in accordance with the provisions of section fifteen, article three, chapter twenty-nine-a of this code. The provisions of said section fifteen, article three, chapter twenty-nine-a notwithstanding such emergency rule, whether procedural, interpretive or legislative, shall be effective upon the filing thereof in the state register and shall have an effective period of not to exceed eighteen months, unless any such rule or rules be altered or amended or such period of time shortened or lengthened by subsequent act of the Legislature. No action shall lie for de novo or other review of such rule to contest or question the existence of circumstances justifying the promulgation of an emergency rule nor to challenge the validity of such rule because of its classification as an emergency rule.
§23-4C-4. Employers' excess liability fund; how funded.
          For the purpose of creating the employers' excess liability fund, each employer who ~~shall elect~~ elects to subscribe to the fund shall pay premiums based upon and being ~~such~~ a percentage of the payroll of the employer as determined by the ~~commissioner may determine~~ board of managers. It ~~shall be~~ is the duty of the ~~commissioner~~ board of managers to fix and maintain the lowest possible rates or premiums consistent with the maintenance of a solvent fund. The premium rates shall be adjusted annually or more often as may, in the opinion of the ~~commissioner~~ board of managers, be necessary.
          The ~~commissioner~~ board of managers shall initially classify subscribers into groups or classes according to the nature of the unusual hazards incident to the business ~~thereof~~ of the subscribers as contemplated by section four, article two of this chapter and assign premium rates ~~thereto~~ to the subscribers. The fixing, maintaining and adjusting of premium rates and the initial classification of subscribers into groups or classes pursuant to this section ~~shall be deemed to be~~ are findings or determinations of fact and not a legislative rule. In addition, the ~~commissioner~~ board of managers shall by ~~legislative~~ rule prescribe procedures for subscription, payroll reporting, premium payment, termination of subscription, reinstatement, reclassification of groups, classes or subscribers, the increase or decrease of premiums based upon incidence of liability and amounts awarded, and other matters pertinent to the subscribers' continuing participation in the employers' excess liability fund.
§23-4C-5. Administration.
          The employers' excess liability fund shall be administered by the ~~commissioner of employment programs~~ executive director, who shall employ ~~such~~ any employees ~~as may be~~ that are necessary to discharge his or her duties and responsibilities under this article. All payments of salaries and expenses of the employees and all expenses peculiar to the administration of this article shall be made by the state treasurer from the employers' excess liability fund upon requisitions signed by the ~~commissioner~~ executive director.
ARTICLE 5. REVIEW.

§23-5-1. Notice by commission or self-insured of decision; procedures on claims; objections and hearing.

          (a) The workers' compensation ~~division shall have full power and authority to~~ commission may hear and determine all questions within its jurisdiction. In matters arising under articles three and four of this chapter, the ~~division~~ commission shall promptly review and investigate all claims. The parties to a claim shall file ~~such~~ the information in support of their respective positions as they ~~deem~~ consider proper. In addition, the ~~division is authorized to~~ commission may develop ~~such~~ additional information ~~as it deems~~ that it considers to be necessary in the interests of fairness to the parties and in keeping with the fiduciary obligations owed to the fund. With regard to any issue which is ready for a decision, the ~~division~~ commission shall explain the basis of its decisions.
          (b) Except with regard to interlocutory matters, upon making any decision, upon ~~the~~ making or refusing to make any award or upon ~~the~~ making of any modification or change with respect to former findings or orders, as provided by section sixteen, article four of this chapter, the ~~division~~ commission shall give notice, in writing, to the employer, employee, claimant, or dependent as the case may be, of its action~~, which~~. The notice shall state the time allowed for filing an objection to ~~such~~ the finding ~~and such~~. The action of the ~~division shall be~~ commission is final unless the employer, employee, claimant or dependant shall, within thirty days after the receipt of ~~such~~ the notice, object in writing, to ~~such~~ the finding~~, and unless~~. Unless an objection is filed within ~~such~~ the thirty-day period, ~~such~~ the finding or action ~~shall be forever~~ is final~~, such~~. This time limitation ~~being hereby declared to be~~ is a condition of the right to litigate ~~such~~ the finding or action and hence jurisdictional. Any ~~such~~ objection shall be filed with the office of judges with a copy served upon the ~~division~~ commission and other parties in accordance with the procedures set forth in sections eight and nine of this article. In all instances where a self-insured employer or a third-party administrator has made claims decisions as authorized in this chapter, they shall provide claimants and the commission notice of all claims decisions as provided for by rules for self administration promulgated by the commission.
          (c) Where a finding or determination of the ~~division~~ commission is protested only by the employer, and the employer does not prevail in its protest, and in the event the claimant is required to attend a hearing by subpoena or agreement of counsel or at the express direction of the ~~division~~ commission or office of judges, then ~~such~~ the claimant in addition to reasonable traveling and other expenses shall be reimbursed for loss of wages incurred by the claimant in attending ~~such~~ the hearing.
          (d) Once an objection has been filed with the office of judges, the parties to the objection shall be offered an opportunity for mediation of the disputed issue by the division. If all of the parties to the objection agree to mediation, the division shall designate a deputy who was not involved in the original decision to act as mediator: ~~Provided,~~ That on issues related solely to the medical necessity of proposed medical treatment or diagnostic services, the division shall offer the parties to the objection a selection of names of medical providers in the appropriate specialty. The parties shall then either agree upon a medical provider who shall act as mediator or, in the absence of an agreement, the division shall select a medical provider who shall act as mediator. In cases where issues of medical necessity are intertwined with nonmedical treatment or nondiagnostic issues, both a medical provider and a designated deputy shall act as comediators and shall consider their respective issues. Neither shall be empowered to overturn the decision of the other.
          ~~Upon entering into mediation, the parties shall inform the office of judges of that action and the office of judges shall stay further action on the objection.~~
          The mediator shall solicit the positions of the parties and shall review such additional information as the parties or the division shall furnish. The mediator shall then issue a decision in writing with the necessary findings of fact and conclusions of law to support that decision. If any party disagrees with the decision, that party may note its objection to the office of judges, the division and the other parties, and the office of judges shall lift the stay on the original protest. The decision and any information introduced during the attempted mediation shall be subject to consideration by the office of judges in making its decision on the objection. Upon acceptance by the parties of the result of the mediation, the office of judges shall dismiss the objection with prejudice.
          The mediator shall conduct the mediation in an informal manner and without regard to the formal rules of evidence and procedure. Once the parties agree to mediation, then the agreement cannot be withdrawn.
          (e) The panel of medical providers who shall serve as mediators shall be selected and approved by the compensation programs performance council. A medical provider serving as a mediator shall have the same protections from liability as does the division's's employees with regard to their decisions including coverage by the board of risk management which shall be provided by the workers' compensation division.
          ~~(f)~~ (d) The ~~division is expressly authorized to~~ commission may amend, correct or set aside any order on any issue entered by it which is on its face defective or clearly erroneous or the result of mistake, clerical error or fraud. Jurisdiction to take this action ~~shall continue~~ continues until the expiration of one hundred eighty days from the date of entry of an order unless the order is sooner affected by appellate action: Provided, That corrective actions in the case of fraud may be taken at any time.
          ~~(g)~~ (e) All objections to orders of the ~~division~~ commission or self-insured employers shall be styled in the name of the workers' compensation ~~division~~ commission. All appeals prosecuted from the office of judges or from the appeal board shall either be in the name of the workers' compensation ~~division~~ commission or shall be against the workers' compensation ~~division~~ commission unless the parties to the appeal are limited to a claimant and a self-insured employer. In all ~~such matters~~ actions under this article, the workers' compensation ~~division~~ commission shall be the party in interest unless the parties to the appeal are limited to a claimant and a self-insured employer.

§23-5-2. Application by employee for further adjustment of claim; objection to modification; hearing.

In any case where an injured employee makes application in writing for a further adjustment of his or her claim under the provisions of section sixteen, article four of this chapter, and ~~such~~ the application discloses cause for a further adjustment ~~thereof~~, the ~~division~~ commission shall, after due notice to the employer, make ~~such~~ the modifications, or changes with respect to former findings or orders in ~~such~~ claim ~~as may be~~ that are justified~~, and any~~. Any party dissatisfied with any ~~such~~ modification or change so made by the ~~division shall~~ commission is, upon proper and timely objection, be entitled to a hearing, as provided in section nine of this article.
§23-5-3. Refusal to reopen claim; notice; objection.
~~If, however, in~~ In any case in which application for further adjustment of a claim is filed under section two of this article, it ~~shall appear~~ appears to the ~~division~~ commission that ~~such~~ the application fails to disclose a progression or aggravation in the claimant's condition, or some other fact or facts which were not ~~theretofore~~ previously considered by the ~~division~~ commission in its former findings, and which would entitle ~~such~~ the claimant to greater benefits than the claimant has already received, the ~~division~~ commission shall, within a reasonable time, notify the claimant and the employer that ~~such~~ the application fails to establish a prima facie cause for reopening the claim ~~such~~. The notice shall be in writing stating the reasons for denial and the time allowed for objection to ~~such~~ the decision of the ~~division~~ commission. The claimant may, within thirty days after receipt of ~~such~~ the notice, object in writing to ~~such~~ the finding ~~and unless~~. Unless the objection is filed within ~~such~~ the thirty-day period, no ~~such~~ objection shall be allowed~~, such~~. This time limitation ~~being hereby declared to be~~ is a condition of the right to ~~such~~ objection and hence jurisdictional. Upon receipt of an objection, the office of judges shall afford the claimant an evidentiary hearing as provided in section nine of this article.

§23-5-4. Application by employer for modification of award; objection to modification; hearing.

          In any case ~~wherein~~ in which an employer makes application in writing for a modification of any award previously made to an employee of ~~said~~ the employer, and ~~such~~ the application discloses cause for a further adjustment ~~thereof~~, the ~~division~~ commission shall, after due notice to the employee, make ~~such~~ the modifications or changes with respect to former findings or orders ~~in such form as may be~~ that are justified~~, and any~~. Any party dissatisfied with any ~~such~~ modification or change so made by the ~~division shall~~ commission is, upon proper and timely objection, be entitled to a hearing as provided in section nine of this article.
§23-5-5. Refusal of modification; notice; objection.
          If in any ~~such~~ case it ~~shall appear~~ appears to the ~~division~~ commission that the application filed pursuant to section four of this article fails to disclose some fact or facts which were not ~~theretofore~~ previously considered by the ~~division~~ commission in its former findings, and which would entitle ~~such~~ the employer to any modification of ~~said~~ the previous award, the ~~division~~ commission shall, within sixty days from the receipt of ~~such~~ the application, notify the claimant and employer that ~~such~~ the application fails to establish a just cause for modification of ~~said~~ the award. ~~Such~~ The notice shall be in writing stating the reasons for denial and the time allowed for objection to ~~such~~ the decision of the ~~division~~ commission. The employer may, within thirty days after receipt of ~~said~~ the notice, object in writing to ~~such~~ the decision~~, and unless~~. Unless the objection is filed within ~~such~~ the thirty-day period, no ~~such~~ objection shall be allowed~~, such~~. This time limitation ~~being hereby declared to be~~ is a condition of the right to ~~such~~ objection and hence jurisdictional. Upon receipt of ~~such~~ the objection, the office of judges shall afford the employer an evidentiary hearing as provided in section nine of this article.
§23-5-6. Time periods for objections and appeals; extensions.
          Notwithstanding the fact that the time periods set forth for objections, protests and appeals to or from the workers' compensation appeal board, are jurisdictional, ~~such~~ the periods may be extended or excused upon application of either party within a period of time equal to the applicable period by requesting an extension of ~~such~~ the time period showing good cause or excusable neglect, accompanied by the objection or appeal petition. In exercising ~~such~~ discretion the administrative law judge, appeal board or court, as the case may be, shall consider whether the applicant was represented by counsel and whether timely and proper notice was actually received by the applicant or the applicant's representative.
§23-5-7. Compromise and settlement.
          With the exception of medical benefits for occupational disease claims, the claimant, the employer and the workers' compensation ~~division~~ commission may negotiate a final settlement of any and all issues in a claim wherever the claim ~~may then be~~ is in the ~~review~~ administrative or appellate processes. Upon entering into an agreement, the parties shall file the written and executed agreement with the office of judges. The office of judges shall review the proposed agreement to determine if it is fair and reasonable to the parties and shall ensure that each of the parties are fully aware of the effects of the agreement including what each party is conceding in exchange for the agreement. If the office of judges concludes that the agreement is not fair or is not reasonable or that one of the parties is not fully informed, ~~then~~ the agreement will not be approved~~, which~~. The decision on this question ~~shall~~ is not be reviewable. If the employer is not active in the claim, ~~then~~ the ~~division~~ commission may negotiate a final settlement of any and all issues in a claim except for medical benefits for occupational disease claims with the claimant. Upon approval of the settlement, it shall be made a part of the claim record ~~and the~~. The office of judges shall send written notice of the settlement to all parties and, where appropriate, to the appeal board or the supreme court of appeals. Except in cases of fraud, no issue that is the subject of an approved settlement agreement may be reopened by any party, including the ~~division~~ commission. Any settlement agreement may provide for a lump sum payment or a structured payment plan, or any combination thereof, or ~~such~~ any other basis as the parties may agree. If ~~such~~ a self-insured employer later fails to make the agreed upon payment, the ~~division~~ commission shall assume the obligation to make the payments and shall ~~be entitled to~~ recover the amounts paid or to be paid from the self-insured employer and its sureties or guarantors or both as provided for in sections five and five-a, article two of this chapter.
          The amendments to this section enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-nine shall apply to all settlement agreements executed after ~~such~~ the effective date.

§23-5-8. Designation of office of administrative law judges; powers of chief administrative law judge.

          (a) The workers' compensation office of administrative law judges previously created pursuant to chapter twelve, acts of the Legislature, one thousand nine hundred ninety, second extraordinary session, is hereby continued and designated to be an integral part of the workers' compensation system of this state. The office of judges shall be under the supervision of a chief administrative law judge who shall be appointed by the governor, with the advice and consent of the Senate. The previously appointed incumbent of that position who was serving on the second day of February, one thousand nine hundred ninety-five, shall continue to serve in that capacity unless subsequently removed as provided for in subsection (b) of this section.
          (b) The chief administrative law judge shall be a person who has been admitted to the practice of law in this state and shall also have had at least four years of experience as an attorney. The chief administrative law judge's salary shall be set by the ~~compensation programs performance council created in section one, article three, chapter twenty-one-a of this code. Said~~ secretary of the department of administration. The salary shall be within the salary range for comparable chief administrative law judges as determined by the state personnel board created by section six, article six, chapter twenty-nine of ~~said~~ this code. The chief administrative law judge may only be removed by a vote of two thirds of the members of the ~~compensation programs performance council~~ board of managers upon recommendation of the secretary of administration and shall not be removed except for official misconduct, incompetence, neglect of duty, gross immorality or malfeasance and then only after he or she has been presented in writing with the reasons for his or her removal and is given an opportunity to respond and to present evidence. No other provision of this code purporting to limit the term of office of any appointed official or employee or affecting the removal of any appointed official or employee ~~shall be~~ is applicable to the chief administrative law judge.
          (c) ~~By and with the consent of the commissioner the~~ The chief administrative law judge shall employ administrative law judges and other personnel as that are necessary for the proper conduct of a system of administrative review of orders issued by the workers' compensation ~~division~~ commission which orders have been objected to by a party. ~~and all such~~ The employees shall be in the classified service of the state. Qualifications, compensation and personnel practice relating to the employees of the office of judges, other than the chief administrative law judge, shall be governed by the provisions of the ~~statutes,~~ this code and rules ~~and regulations~~ of the classified service pursuant to article six, chapter twenty-nine of this code. All ~~such~~ additional administrative law judges shall be persons who have been admitted to the practice of law in this state and shall also have had at least two years of experience as an attorney. The chief administrative law judge shall supervise the other administrative law judges and other personnel which collectively shall be referred to in this chapter as the office of judges.
          (d) The administrative expense of the office of judges shall be included within the annual budget of the ~~workers' compensation division~~ department of administration. The workers' compensation commission shall pay the budget as approved by the secretary of administration and the board of managers.
          (e) ~~Subject to the approval of the compensation programs performance council pursuant to subdivisions (b) and (c), section seven, article three, chapter twenty-one-a of this code, the~~ The office of judges shall, from time to time, promulgate rules of practice and procedure for the hearing and determination of all objections to findings or orders of the workers' compensation ~~division pursuant to section one of this article~~ commission. The office of judges shall not have the power to initiate or to promulgate legislative rules as that phrase is defined in article three, chapter twenty-nine-a of this code. Any rules adopted pursuant to this section which are applicable to the provisions of this article are not subject to sections nine through sixteen, inclusive, article three, chapter twenty-nine-a of this code. The office of judges shall follow the remaining provisions of said chapter for giving notice to the public of its actions and the holding of hearings or receiving of comments on the rules.
          (f) The chief administrative law judge ~~shall continue to have~~ has the power to hear and determine all disputed claims in accordance with the provisions of this article, establish a procedure for the hearing of disputed claims, take oaths, examine witnesses, issue subpoenas, establish the amount of witness fees, keep ~~such~~ records and make ~~such~~ reports as that are necessary for disputed claims and exercise ~~such~~ any additional powers, including the delegation of ~~such~~ powers to administrative law judges or hearing examiners ~~as may be~~ that are necessary for the proper conduct of a system of administrative review of disputed claims. The chief administrative law judge shall make ~~such~~ reports ~~as may be~~ that are requested of him or her by the ~~compensation programs performance council~~ department of administration and the board of managers.

§23-5-9. Hearings on objections to commission or self-insured employer decisions; mediation; remand.

          (a) Objections to a decision of the workers' compensation ~~division decision~~ commission or self-insured employer made pursuant to the provisions of section one of this article shall be filed with the office of judges. Upon receipt of an objection, the office of judges shall notify the ~~division~~ commission and all other parties of the filing of the objection. The office of judges shall establish by rule promulgated in accordance with the provisions of subsection (e), section eight of this article an adjudicatory process that enables parties to present evidence in support of their positions and provides an expeditious resolution of the objection. The employer, the claimant and the ~~division~~ commission shall be notified of any hearing at least ten days in advance.
          (b) The office of judges shall establish a program of mandatory mediation. Mediation through the office of judges shall be conducted in accordance with the requirements of rule twenty- five of the West Virginia trial court rules. A case may be referred to mediation by the administrative law judge on his or her own motion, on motion of a party or by agreement of the parties. Upon issuance of an order for mediation, the office of judges shall assign a mediator from a list of qualified mediators maintained by the West Virginia state bar.
__________~~(b)~~ (c) The office of judges shall keep full and complete records of all proceedings concerning a disputed claim. Subject to the rules of practice and procedure promulgated pursuant to section eight of this article, the record upon which the matter shall be decided shall include any evidence submitted by a party to the office of judges, evidence taken at hearings conducted by the office of judges and any documents in the ~~division's~~ commission's claim files which relate to the subject matter ~~objected to~~ of the objection. The record may include evidence or documents submitted in electronic form or other appropriate medium in accordance with the rules of practice and procedure ~~referred to herein~~. The office of judges ~~shall~~ is not be bound by the usual common law or statutory rules of evidence.
          ~~(c)~~ (d) All hearings shall be conducted as determined by the chief administrative law judge pursuant to the rules of practice and procedure promulgated pursuant to section eight of this article. Upon consideration of the ~~entire~~ designated record, the chief administrative law judge or other authorized adjudicator within the office of judges shall, based on the determination of the facts of the case and applicable law, render a decision affirming, reversing or modifying the ~~division's~~ commission's action. ~~Said~~ The decision shall contain findings of fact and conclusions of law and shall be mailed to all parties.
          ~~(d)~~ (e) The rule authorized by subsection (a) of this section shall be promulgated on or before the first day of July, ~~one thousand nine hundred ninety-nine~~ two thousand three. Until the rule is ~~finally~~ promulgated, ~~the prior~~ ~~provisions of this section as found in chapter two hundred fifty-three of the acts of the Legislature, one thousand nine hundred ninety-five, shall remain in effect~~ any rules previously promulgated shall remain in full force and effect.
          (f) The office of judges may remand a claim to the commission for further development of the facts as, in the opinion of the administrative law judge, may be necessary for a full and complete development of the facts in the case. The administrative law judge shall establish a time within which the commission must develop the additional facts and report back to the administrative law judge.
§23-5-10. Appeal from administrative law judge decision to intermediate court of appeals.

          The employer, claimant or workers' compensation division may appeal to the appeal board created in section eleven of this article for a review of a decision by an administrative law judge. No appeal or review shall lie unless application therefor be made within thirty days of receipt of notice of the administrative law judge's final action or in any event within sixty days of the date of such final action, regardless of notice and, unless the application for appeal or review is filed within the time specified, no such appeal or review shall be allowed, such time limitation being hereby declared to be a condition of the right of such appeal or review and hence jurisdictional.
          The decision of the workers' compensation office of judges regarding any protest is final and benefits shall be paid or denied in accordance with the decision, subject to the following provisions:
__________(1) A claimant, employer or the workers' compensation commission may appeal, as a matter of right, subject to the notice and procedure requirements in this section, a decision by the workers' compensation office of judges regarding compensability of a workers' compensation claim or a particular alleged injury or disease to the intermediate court of appeals within thirty days of receipt of a final order.
__________(2) For all other issues, the board may hear the appeal only if it appears on the face of the petition for appeal that the administrative law judge's findings were:
__________(A) In clear violation of unambiguous statutory provisions or the result of erroneous conclusions of law;
__________(B) Beyond the statutory authority or jurisdiction of the administrative law judge or based upon unlawful procedures;
__________(C) Based upon findings of fact that were clearly wrong in view of the reliable, probative and substantial evidence on the designated record; or
__________(D) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

§23-5-15. Appeals from final decisions of offices of judges to intermediate court of appeals.

          From any final decision of the ~~board~~ office of judges, including any order of remand, an application for review may be prosecuted by either party or by the workers' compensation ~~division~~ commission to the ~~supreme~~ intermediate court of appeals within thirty days from the date ~~thereof~~ of the final decision by the filing of a petition ~~therefor~~ to ~~such~~ the court against the ~~board~~ office of judges and the adverse party or parties as respondents~~, and unless~~. Unless the petition for review is filed within ~~such~~ the thirty-day period, no ~~such~~ appeal or review ~~shall be~~ is allowed~~, such~~. This time limitation ~~being hereby declared to be~~ is a condition of the right to ~~such~~ appeal or review and, hence, jurisdictional~~; and the~~. The clerk of ~~such~~ the court shall notify each of the respondents and the workers' compensation ~~division~~ commission of the filing of ~~such~~ the petition. The ~~board~~ office of judges shall, within ten days after receipt of ~~such~~ notice, file with the clerk of the court the record ~~of the proceedings had before it~~, including all the evidence. The court or any judge thereof in vacation may ~~thereupon~~ determine whether or not a review shall be granted. ~~And if~~ If a review is granted to a nonresident of this state, he or she shall ~~be required to~~ execute and file with the clerk before ~~such~~ the order or review ~~shall become~~ becomes effective, a bond, with security to be approved by the clerk, conditioned to perform any judgment which may be awarded against him or her thereon.
          The board may certify to the court and request its decision of any question of law arising upon the record and withhold its further proceeding in the case, pending the decision of court on the certified question or until notice that the court has declined to docket the same. If a review be granted or the certified question be docketed for hearing, the clerk shall notify the board and the parties litigant or their attorneys and the workers' compensation division of that fact by mail. If a review be granted or the certified question docketed, the case shall be heard by the court in the same manner as in other cases, except that neither the record nor briefs need be printed. Every such review granted or certified question docketed prior to thirty days before the beginning of the term shall be placed upon the docket for such term. The attorney general shall, without extra compensation, represent the board in such cases. The court shall determine the matter so brought before it and certify its decision to the board and to the division. The cost of such proceedings on petition, including a reasonable attorneys' fee, not exceeding thirty dollars to the claimant's attorney, shall be fixed by the court and taxed against the employer if the latter be unsuccessful, and if the claimant, or the division (in case the latter be the applicant for review) be unsuccessful, such costs, not including attorney's fees, shall be taxed against the division, payable out of the workers' compensation fund, or shall be taxed against the claimant, in the discretion of the court. But there shall be no cost taxed upon a certified question.
§23-5-17. Termination of office of judges.
          The office of judges ~~shall terminate~~ terminates on the first day of July, two thousand ~~three~~ nine, pursuant to the provisions of article ten, chapter four of this code unless sooner terminated, continued or reestablished pursuant to the provisions of that article.

ARTICLE 5A. DISCRIMINATORY PRACTICES.

§23-5A-1. Discriminatory practices prohibited.

No employer shall discriminate in any manner against any of his or her present or former employees because of ~~such~~ the present or former employee's receipt of or attempt to receive benefits under this chapter.

§23-5A-2. Discriminatory practices prohibited -- Medical insurance.

          Any employer who has provided any type of medical insurance for an employee or his or her dependents by paying premiums, in whole or in part, on an individual or group policy shall not cancel, decrease his or her participation on behalf of the employee or his or her dependents or cause coverage provided to be decreased during the entire period for which that employee during the continuance of the employer-employee relationship is claiming or is receiving benefits under this chapter for a temporary disability. If the medical insurance policy requires a contribution by the employee, that employee must continue to make the contribution required to the extent the insurance contract does not provide for a waiver of the premium.
          Nothing in this section ~~shall prevent~~ prevents an employer from changing insurance carriers or cancelling or reducing medical coverage if the temporarily disabled employee and his or her dependents are treated with respect to insurance in the same manner as other similarly classified employees and their dependents who are also covered by the medical insurance policy.
          This section provides a private remedy for the employee which ~~shall be~~ is enforceable in an action by the employee in a circuit court having jurisdiction over the employer.
CHAPTER 26. STATE BENEVOLENT INSTITUTIONS.

ARTICLE 8. EMERGENCY HOSPITALS.

§26-8-2. Patients; expenses; disposition of receipts.

          The ~~state commissioner of public institutions~~ department of health and human resources shall admit to ~~said~~ the hospitals, under its rules and regulations, persons requiring hospital care and shall treat free of charge persons accidentally injured in this state while engaged in their usual employment, but preference at all times shall be given to persons accidentally injured: Provided, That the ~~commissioner of the bureau of employment programs~~ executive director of the workers' compensation commission shall pay to said the hospitals for the treatment of anyone entitled to benefits or aid out of the workers' compensation fund the same fee or expenses as that would be paid to a private hospital for similar treatment. All moneys collected under this section shall be paid into the state treasury through the state commissioner of public institutions as required in section thirteen, article one, chapter twenty-five of this code.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 18. BUREAU FOR CHILD SUPPORT ENFORCEMENT.
§48-18-125. Employment and income reporting.
          (a) For purposes of this section:
          (1) 'Employee' means an individual who is an 'employee' for purposes of federal income tax withholding, as defined in 26 U. S. C. §3401;
          (2) 'Employer' means the person or entity for whom an individual performs or performed any service of whatever nature and who has control of the payment of the individual's wages for performance of ~~such~~ the service or services, as defined in 26 U. S. C. §3401;
          (3) An individual is considered a 'new hire' on the first day in which that individual performs services for remuneration and on which an employer begins to withhold amounts for income tax purposes.
          (b) Except as provided in subsections (c) and (d) of this section, all employers doing business in the state shall report to the bureau for child support enforcement:
          (1) The hiring of any person who resides or works in this state to whom the employer anticipates paying earnings; and
          (2) The rehiring or return to work of any employee who resides or works in this state.
          (c) Employers are not required to report the hiring, rehiring or return to work of any person who is an employee of a federal or state agency performing intelligence or counterintelligence functions if the head of ~~such~~ the agency has determined that reporting could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission.
          (d) An employer that has employees in states other than this state and that transmits reports magnetically or electronically is not required to report to the bureau for child support enforcement the hiring, rehiring or return to work of any employee if the employer has filed with the secretary of the federal department of health and human services, as required by 42 U. S. C. §653A, a written designation of another state in which it has employees as the reporting state.
          (e) Employers shall report by mailing to the bureau for child support enforcement a copy of the employee's W-4 form; however, an employer may transmit ~~such~~ the information through another means if approved in writing by the bureau for child support enforcement prior to the transmittal. The report shall include the employee's name, address and social security number, the employer's name and address, any different address of the payroll office and the employer's federal tax identification number. The employer may report other information, such as date of birth or income information, if desired.
          (f) Employers shall submit a report within fourteen days of the date of the hiring, rehiring or return to work of the employee. However, if the employer transmits the reports magnetically or electronically by two monthly submissions, the reports shall be submitted not less than twelve days nor more than sixteen days apart.
          (g) An employer shall provide to the bureau for child support enforcement, upon its written request, information regarding an obligor's employment, wages or salary, medical insurance, start date and location of employment.
          (h) Any employer who fails to report in accordance with the provisions of this section shall be assessed a civil penalty of no more than twenty-five dollars per failure. If the failure to report is the result of a conspiracy between the employer and the employee not to supply the required report or to supply a false or incomplete report, the employer shall be assessed a civil penalty of no more than five hundred dollars.
          (i) Employers required to report under this section may assess each employee so reported one dollar for the administrative costs of reporting.
          (j) Uses for the new hire information include, but are not limited to, the following:
          (1) The state directory of new hires shall furnish the information to the national directory of new hires;
          (2) The bureau for child support enforcement shall use information received pursuant to this section to locate individuals for purposes of establishing paternity and of establishing, modifying and enforcing child support obligations and may disclose ~~such~~ the information to any agent of the agency that is under contract with the bureau to carry out ~~such~~ those purposes;
          (3) State agencies responsible for administering a program specified in 42 U. S. C. §1320b- 7(b) shall have access to information reported by employers for purposes of verifying eligibility for the program; and
          (4) The bureau of employment programs and the workers' compensation commission shall have access to information reported by employers for purposes of administering employment security and workers' compensation programs.
§48-18-131. Access to records, confidentiality.
          (a) All records in the possession of the bureau for child support enforcement, including records concerning an individual case of child or spousal support, ~~shall be kept~~ is confidential and shall not be released except as ~~provided below~~ follows:
          (1) Records shall be disclosed or withheld as required by federal law or regulations promulgated thereunder notwithstanding other provisions of this section.
          (2) Information as to the whereabouts of a party or the child shall not be released to a person against whom a protective order has been entered with respect to ~~such~~ that party or child or where the state has reason to believe that the release of the information to the person making the request may result in physical or emotional harm to the party or the child.
          (3) The phone number, address, employer and other information regarding the location of the obligor, the obligee and the child shall only be disclosed: (A) Upon his or her written consent, to the person whom the consent designates; or (B) notwithstanding subdivision (4) of this subsection, to the obligee, the obligor, the child or the caretaker or representative of the child, upon order of a court if the court finds that the disclosure is for a bona fide purpose, is not contrary to the best interest of a child and does not compromise the safety of any party: Provided, That the identity and location of the employer may be disclosed on the letters, notices and pleadings of the bureau as necessary and convenient for the determination of support amounts and the establishment, investigation, modification, enforcement, collection and distribution of support.
          (4) Information and records other than the phone number, address, employer and information regarding the location of the obligor, the obligee and the child shall be disclosed to the obligor, the obligee, the child or the caretaker of the child or his or her duly authorized representative, upon his or her written request: Provided, That when the obligor requests records other than collection and distribution records, financial records relevant to the determination of the amount of support pursuant to the guidelines, or records the obligor has supplied, the bureau shall mail a notice by first- class mail to the last known address of the obligee notifying him or her of the request. The notice shall advise the obligee of his or her right to object to the release of records on the grounds that the records are not relevant to the determination of the amount of support or the establishment, modification, enforcement, collection or distribution of support. The notice shall also advise the obligee of his or her right to disclosure of records provided in this section in order to determine what records the bureau for child support enforcement may have. In the event of any objection, the bureau shall determine whether or not the information shall be released.
          (5) Information in specific cases may be released as is necessary or to determine the identity, location, employment, income and assets of an obligor.
          (6) Information and records may be disclosed to the bureau of vital statistics, bureau of employment programs, the workers' compensation ~~division~~ commission, state tax department and the internal revenue service, or other state or federal agencies or departments ~~as may be~~ that are necessary or desirable in obtaining any address, employment, wage or benefit information for the purpose of determining the amount of support or establishing, enforcing, collecting and distributing support.
          (b) Any person who willfully violates this section ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars, or confined in the county or regional jail not more than six months, or both fined and ~~imprisoned~~ confined.
CHAPTER 51. COURTS AND THEIR OFFICERS
ARTICLE 1B. INTERMEDIATE COURT OF APPEALS

§51-1B-1. Intermediate court of appeals; jurisdiction; initial appointment; salary.

          (a) There is hereby created the West Virginia intermediate court of appeals which consists of three justices, any two of whom constitute a quorum.
          (b) The intermediate court of appeals shall exercise sole jurisdiction over all appeals from the workers compensation office of judges filed on or after the thirty-first day of December, two thousand three. Appeals filed with the supreme court of appeals prior to the thirty-first day of December, two thousand three may, in the discretion of the supreme court, be assigned to the intermediate court of appeals for consideration and decision in accordance with the provisions of this article.
          (c) The governor shall appoint, with the advice and consent of the senate, three qualified attorneys to serve staggered ten year terms as justices of the intermediate court of appeals. No more than two of the justices may be from the same political party.
          (d) Of the initial appointments, the first justice appointed shall serve for a term of six years, the second justice shall serve for a term of eight years and the third justice shall serve for a term of ten years. The initial appointees shall serve until confirmed by the senate. If the senate does not confirm an appointee the governor shall forthwith submit the name of another qualified appointee for consideration by the senate. The initial appointments shall be made no later than the thirty-first day of December, two thousand three. Should a vacancy occur, the governor shall, within thirty days of vacation of the position, appoint a new member to fill the unexpired term. As each term expires, the vacancy shall be filled by an appointee for a term of ten years. A justice may be appointed for more than one term.
          (e) The salary of each of the justices of the intermediate court of appeals is ninety-two thousand dollars per year.
§51-1B-2. Qualifications
          (a) A justice of the intermediate court of appeals must be a resident of this state, a member in good standing of the West Virginia state bar, admitted to practice law in this state for at least ten years prior to appointment, and must, at the time he or she takes office, and thereafter during his or her continuance in office, reside in the state.
          (b) No justice of the intermediate court of appeals may hold any other office, or accept any appointment or public trust, nor shall he or she become a candidate for any elective public office or nomination thereto, except a judicial office. Violation of this subsection requires the justice to vacate his or her office. No justice of an intermediate court of appeals may engage in the practice of law during his or her term of office.
§51-1B-3. Chief justice.
          The court shall designate one of its justices in rotation to be chief justice of the court for as long as the court may determine by order made and entered of record. In the absence of the chief justice, any other justice designated by the justices present shall act as chief justice.
§51-1B-4. Regular terms.
          Two terms of the intermediate court of appeals shall be held every year at Charleston, in Kanawha county, the first commencing on the second Tuesday in January and ending on the thirty- first day of July, the second on the first Wednesday in September and ending on the fifteenth day of December. The intermediate court of appeals shall, from time to time, hold hearings in other counties of the state as the court finds appropriate. A schedule of each term of court, including the locations in which hearings are to be held shall be provided at the beginning of each term to the joint committee on government and finance.
§51-1B-5. Location.
          The intermediate court of appeals shall be located in the same facility as or in close proximity to the West Virginia supreme court of appeals.
§51-1B-6. Appeals from worker's compensation office of judges.
          (a) A claimant, employer, or the workers' compensation commission may appeal, as a matter of right, subject to the notice and procedure requirements in this section, a decision by the workers' compensation office of judges regarding compensability of a workers' compensation claim or a particular alleged injury or disease to the intermediate court of appeals within thirty days of receipt of notice of the office of judges' decision.
          (b) For all other issues, the board may hear the appeal only if it appears on the face of the petition for appeal that the administrative law judge's findings were:
          (1) In clear violation of unambiguous statutory provisions or the result of erroneous conclusions of law; or
          (2) Beyond the statutory authority or jurisdiction of the administrative law judge or based upon unlawful procedures; or
          (3) Based upon findings of fact that were clearly wrong in view of the reliable, probative and substantial evidence on the designated record; or
          (4) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
          (c) If the intermediate court of appeals declines to hear a discretionary appeal, no appeal shall lie to the supreme court of appeals.
§51-1B-7. Regulation of pleading, practice and procedure.
          The intermediate court of appeals shall make general rules regarding the pleading, practice and procedure to be used by the court: Provided, That the rules are not inconsistent with any rule of the supreme court of appeals. The rules become effective upon approval by the supreme court of appeals.
§51-1B-8. Presentation of petition; time for filing petition.
          A party seeking to appeal a decision to the intermediate court of appeals must file a petition in accordance with and in the time provided for by the rules of appellate procedure for the intermediate court of appeals.
§51-1B-9. Stay of proceedings.
          Any petition for a stay of proceedings must be filed and processed in accordance with the rules of appellate procedure for the intermediate court of appeals.
§51-1B-10. Decisions.
          (a) In all cases before it, the intermediate court of appeals shall consider the record, legal briefs of the parties, and where the court considers necessary, arguments of the parties prior to rendering a decision.
          (b) Any decision reversing, remanding or affirming a decision of the of the workers compensation appeal board must sufficiently set forth the reasons therefore, including the legal basis and the findings of fact that led to the decision.
§51-1B-11. Adjournment.
          The court may, at any regular or special term, adjourn from day to day or from time to time, as the court may order, until its close.

§51-1B-10. Clerk; deputy; other assistants and employees; compensation; expenses.

          The intermediate court of appeals, or judges thereof in vacation, may appoint a clerk, who shall give bond as required by article two, chapter six of this code. The intermediate court of appeals, or judges thereof in vacation, may appoint one deputy clerk, and other full-time and part- time assistants and clerical employees necessary to perform properly the functions and duties of the office of the clerk. The annual compensation of the clerk shall be fixed by the court. The clerk and other employees shall serve at the will and pleasure of the court or judges. Vacancies in the office of the clerk which occur during vacation may be filled by appointment, in writing, made by the judges of the court or a majority thereof. The administrative and other operating expenses of the intermediate court of appeals shall be included and paid from the annual budget of the supreme court of appeals.
§51-1B-13. Duties of clerk.
          (a) It is the duty of the clerk of the intermediate court of appeals to attend in person, or by deputy, all the sessions of the court, to obey its orders and directions during term and in vacation, to take care of and preserve in an office, kept for the purpose, all records and papers of the court, and to perform other duties as prescribed by law or required of him or her by the court.
§51-1B-14. Appeals to the supreme court of appeals.
          (a) A petition to the supreme court of appeals for appeal of an order of the intermediate court of appeals shall be filed within thirty days of the entry of the order. A petition for appeal shall be filed in the office of the clerk of the supreme court of appeals in accordance with the supreme court rules for appellate procedure.
          (b) The supreme court of appeals may refuse to consider a petition for appeal, may affirm or reverse the order, may affirm or reverse the order in part or may remand the case with instructions to the intermediate court of appeals.
          (c) In considering a petition for appeal, the supreme court of appeals shall consider the record provided by the intermediate court of appeals. The supreme court of appeals shall reject or modify findings of fact made by the intermediate court of appeals only if they are not supported by any evidence in the record. The decision of the intermediated court of appeals shall be overturned or modified if it is contrary to the constitution;, is in clear violation of unambiguous statutory provisions or the result of erroneous conclusions of law.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.

§61-3-24g. Workers' compensation health care offenses; fraud; theft or embezzlement; false statements; penalties; notice; prohibition against providing future services; penalties; asset forfeiture; venue.

          (1) Any person who knowingly and willfully executes, or attempts to execute, a scheme or artifice:
          (A) To defraud the workers' compensation fund or a self-insured employer in connection with the delivery of or payment for workers' compensation health care benefits, items or services; or
          (B) To obtain, by means of false or fraudulent pretenses, representations, or promises any of the money or property owned by or under the custody or control of the workers' compensation fund or a self-insured employer in connection with the delivery of or payment for workers' compensation health care benefits, items or services; or
          (C) To make any charge or charges against any injured employee or any other person, firm or corporation which would result in a total charge for the treatment or service rendered in excess of the maximum amount set forth ~~therefore~~ in the workers' compensation ~~division's~~ commission's schedule of maximum reasonable amounts to be paid for ~~such~~ the treatment or services issued pursuant to subsection (a), section three, article four, chapter twenty-three of this code ~~shall be~~ is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year nor more than ten years or, in the discretion of the court, be confined in the county or regional jail not more than one year and shall be fined not more than two thousand five hundred dollars.
          (2) Any person who, in any matter involving a health care program related to the workers' compensation fund, knowingly and willfully:
          (A) Falsifies, conceals or covers up by any trick, scheme or device a material fact; or
          (B) Makes any materially false, fictitious or fraudulent statement or representation, or makes or uses any materially false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry, ~~shall be~~ is guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary for a definite term of imprisonment which is not less than one year nor more than three years or fined not less than one thousand dollars nor more than ten thousand dollars, or both, in the discretion of the court.
          (3) Any person who willfully embezzles, steals or otherwise unlawfully converts to the use of any person other than the rightful owner, or intentionally misapplies any of the moneys, funds, securities, premiums, credits, property or other assets of a health care program related to the workers' compensation fund, ~~shall be~~ is guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary for not less than one year nor more than ten years or fined not less than ten thousand dollars, or both, in the discretion of the court.
          (4) Any health care provider who fails, in violation of subsection (5) of this section to post a notice, in the form required by the workers' compensation ~~division~~ commission, in the provider's public waiting area that the provider cannot accept any patient whose treatment or other services or supplies would ordinarily be paid for from the workers' compensation fund or by a self-insured employer unless ~~such~~ the patient consents, in writing, prior to the provision of ~~such~~ the treatment or other services or supplies, to make payment for that treatment or other services or supplies himself or herself, ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be fined one thousand dollars.
          (5) Any person convicted under the provisions of this section shall, ~~from and~~ after such conviction, be barred from providing future services or supplies to injured employees for the purposes of workers' compensation and shall cease to receive payment for ~~such~~ services or supplies.
          (6) (A) The court, in imposing sentence on a person convicted of an offense under this section, shall order the person to forfeit property, real or personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense. Any person convicted under this section shall pay the costs of asset forfeiture.
          (B) For purposes of subdivision (A), subsection (6) of this section, the term 'payment of the costs of asset forfeiture' means:
          (i) The payment of any expenses necessary to seize, detain, inventory, safeguard, maintain, advertise, sell or dispose of property under seizure, detention or forfeiture, or of any other necessary expenses incident to the seizure, detention, forfeiture or disposal of ~~such~~ the property, including payment for:
          (a) Contract services;
          (b) The employment of outside contractors to operate and manage properties or provide other specialized services necessary to dispose of ~~such~~ the properties in an effort to maximize the return from ~~such~~ the properties; and
          (c) Reimbursement of any state or local agency for any expenditures made to perform the functions described in this subparagraph;
          (ii) The compromise and payment of valid liens and mortgages against property that has been forfeited, subject to the discretion of the workers' compensation fund to determine the validity of ~~any such~~ the lien or mortgage and the amount of payment to be made, and the employment of attorneys and other personnel skilled in state real estate law as necessary;
          (iii) Payment authorized in connection with remission or mitigation procedures relating to property forfeited; and
          (iv) The payment of state and local property taxes on forfeited real property that accrued between the date of the violation giving rise to the forfeiture and the date of the forfeiture order.
          (7) Venue for prosecution of any violation of this subsection shall be either the county in which the defendant's principal business operations are located or in Kanawha County where the workers' compensation fund is located."
          And,
          By amending the title of the bill to read as follows:
          Com. Sub. for H. B. 2120 - "A Bill to repeal sections one, two, three, four, five, six and seven, article three, chapter twenty-one-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to repeal section five-b, article two, chapter twenty-three of said code; to repeal section seven, article four-a of said chapter; to repeal section fourteen, article five of said chapter; to amend and reenact section thirty-three-d, article three, chapter five-a of said code; to amend and reenact sections four and five, article three, chapter five-b of said code; to amend and reenact section one, article two, chapter five-f of said code; to amend and reenact section seven, article twelve, chapter eleven of said code; to amend and reenact section four, article one-a, chapter twelve of said code; to amend and reenact section six, article six of said chapter; to amend and reenact section ten, article two, chapter fifteen of said code; to amend and reenact section fifteen, article one, chapter sixteen of said code; to amend and reenact section three, article twenty-nine-d of said chapter; to amend and reenact section three, article thirty-six of said chapter; to amend and reenact section twenty-six, article nine-a, chapter eighteen of said code; to amend and reenact section twelve-a, article ten-a of said chapter; to amend and reenact section two, article ten-k of said chapter; to amend and reenact section three, article three-a, chapter twenty-one of said code; to amend and reenact section four, article one, chapter twenty-one-a of said code; to amend and reenact sections six, six-c and thirteen, article two of said chapter; to amend and reenact section eleven, article ten of said chapter; to amend and reenact section eight, article three, chapter twenty-two of said code; to amend and reenact sections one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, seventeen and eighteen, article one, chapter twenty-three of said code; to further amend said article by adding thereto eight new sections, designated sections one-a, one-b, one-c, one-d, one-e, one-f, one-g and four-a; to amend and reenact sections one, one-c, one-d, two, three, four, five, five-a, five-c, five-d, six, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen, article two of said chapter; to amend and reenact section one, article two-a of said chapter; to amend and reenact sections one, two and three, article two-b of said chapter; to amend and reenact sections one, one-a, two, three and five, article three of said chapter; to further amend said article by adding thereto a new section, designated section one-b; to amend and reenact sections one, one-a, one-b, one-c, one-d, one-e, two, three, three-b, three-c, four, six, six- a, six-b, six-d, seven, seven-a, seven-b, eight, eight-a, eight-b, eight-c, nine, nine-b, ten, eleven, twelve, fourteen, fifteen, fifteen-a, fifteen-b, sixteen, sixteen-a, seventeen, eighteen, twenty, twenty- two, twenty-three, twenty-four and twenty-five, article four of said chapter; to further amend said article by adding thereto a new section, designated section one-g; to amend and reenact sections one, three, five, six and eight, article four-a of said chapter; to amend and reenact sections two, five, six, seven, eight and eight-a, article four-b of said chapter; to amend and reenact sections two, three, four and five, article four-c of said chapter; to amend and reenact sections one, two, three, four, five, six, seven, eight, nine, ten, fifteen and seventeen, article five of said chapter; to amend and reenact sections one and two, article five-a of said chapter; to amend and reenact section two, article eight, chapter twenty-six of said code; to amend and reenact sections one hundred twenty-five and one hundred thirty-one, article eighteen, chapter forty-eight of said code; to amend chapter fifty-one by adding thereto a new article, designated article one-b; and to amend and reenact section twenty-four- g, article three, chapter sixty-one of said code, all relating to workers' compensation generally; repealing provisions relating to the compensation programs performance council; repealing provisions relating to default settlement; repealing provisions relating to employees and payment of salaries from the disabled workmen's relief fund; repealing provisions relating to disqualification of workers' compensation appeal board members; removing workers' compensation from the bureau of employment programs; providing legislative findings; creating workers' compensation commission as an independent agency assuming all duties of division; transferring workers' compensation office of judges and the appeal board to department of administration; creating the board of managers; establishing composition of board; establishing qualifications for membership; establishing appointment procedures for members; providing for compensation and travel expenses; setting forth the powers and duties of board; creating position of executive director; establishing qualifications; establishing procedure for removal; setting forth the powers and duties of executive director; providing for payment withholding and interception of moneys of certain employers to ensure compliance with unemployment and workers' compensation laws; providing penalties for failure to withhold or intercept payments; authorizing interagency agreements for the bureau of employment programs and workers' compensation commission; creating the board of managers nominating committee and setting forth its composition and responsibilities; adopting workers' compensation rules by commission; transferring assets and contracts; continuing workers' compensation division until the first day of July, two thousand four; requiring commission to report to the governor, the joint committee on government and finance and the commission on economic development; providing for salaries and expenses; requiring bond and insurance for the executive director and associate director; authorizing the executive director to hire an associate director and other employees; providing for associate director to assume authority in absence of executive director; authorizing certain commission employees to administer oaths; providing for issuance and enforcement of agency subpoenas; establishing fees; setting forth rules of procedure and evidence; allowing certain elected municipal officials not to participate in workers' compensation; making primary contractors responsible for subcontractor payments to workers' compensation in certain instances; requiring rates, surcharges and assessments to be actuarially sound and sufficient to meet needs of the funds; allowing employer premiums, surcharges and assessments to be offset by the use of moneys in the deficit management fund if certain conditions are met; prohibiting full expenditure of the deficit management fund prior to the first day of July, two thousand eight; authorizing the commission to require employers to pay premium taxes more often than quarterly; clarifying that extraction of natural resources is provision of services; extending time for commission to collect from defaulting or delinquent employers; extending statute of limitations; determining uncollectible receivables; allowing specified groups of employers to self insure their obligations to the commission; authorizing self-insured employers to administer claims; requiring self-insured employers to comply with the law and commission rules; requiring self-insured employers to contribute to the deficit management fund; providing that employers that self-insured second injury benefits continue to be responsible for the claims; authorizing the commission to determine the full accrued value of a defaulting self-insured employer based on generally accepted actuarial and accounting principles; setting forth powers and duties of the executive director to regulate self- insured employers; prohibiting self-insured employers from contracting with third-party administrators who have not been approved by the commission; allowing for subrogation of medical benefits and making it effective for claims arising from a cause of action which arose or accrued after the effective date of this legislation; eliminating second injury awards and the second injury reserve fund for certain claims; authorizing certain employers to insure catastrophic risk through private insurance carrier; creating workers' compensation deficit management fund; granting custody of fund to the state treasurer; requiring investment of deficit management fund; providing for management of the deficit; requiring the commission to promulgate rules for operation of the fund; authorizing investment management board to invest surplus moneys from fund; reporting requirements of self-insurers; requiring commission to make a decision on compensability of a claim within fifteen days; prohibiting a claimant from receiving both temporary total disability benefits and certain other employer-provided short-term disability benefits under certain circumstances; requiring award of permanent partial disability benefits be made as expeditiously as possible; providing for weighing of evidence and application of rule of liberality; providing for suspension or termination of health care providers; eliminating annual increases in benefits until two thousand six and authorizing increases thereafter if the workers' compensation fund is fully funded and actuarially solvent; reducing maximum weekly benefit for temporary total disability to sixty-six and two-thirds percent of the average weekly wage of the employee; increasing to fifty percent the percentage of whole body impairment which establishes a rebuttable presumption of permanent total disability; reducing permanent partial disability benefits to seventy percent of the average weekly wage of the claimant not to exceed sixty-six and two-thirds percent of the average weekly wage in West Virginia; providing that reductions in benefit rates affect claimants who have not been awarded benefits prior to passage of legislation in two thousand three; requiring the commission to establish standards for evaluation of claimants and determination of impairments; requiring the executive director to promulgate a rule to establish requirements for an application for permanent total disability benefits; providing that upon adoption of the rule on application requirements no claim for permanent total disability benefits may be sent to the interdisciplinary examining board without an application; providing for the establishment of an onset date for permanent total disability benefits as of the date of application; providing that a claimant must have been awarded fifty percent permanent partial disability prior to applying for permanent total disability; providing that neither location nor wages from gainful employment considered when determining total disability; eliminating the five-percent presumptive award of occupational pneumoconiosis without measurable impairment; authorizing application for occupational pneumoconiosis benefits within three years of diagnosis; providing that the commission may suspend benefits to a claimant for refusing, without good cause, to be examined by a physician; providing for a trial work period; increasing vocational rehabilitation services; removing certain offset provisions; providing for mandatory mediation; authorizing appointment of chief administrative law judge by governor; providing for removal only for specified misconduct; providing that the commission must fund the office of judges and the appeals board; allowing office of judges to promulgate procedural rules; providing for appeals of compensability as matter of right, all other appeals within discretion of board; establishing time frames for appeals; establishing standards for appeal; creating full-time three-judge appeal board known as the intermediate court of appeals; providing for appointment by the governor for staggered ten-year terms; authorizing board to develop rules of procedure; establishing qualifications of judges; establishing position of chief judge; establishing location and term; establishing rules of procedure; authorizing intermediate court to appoint clerk and other employees; providing for remand of cases; providing for appeals from the intermediate court to the West Virginia supreme court of appeals; and making technical corrections and removing archaic language throughout."
          On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments, with amendment, as follows:
          On page one of the Senate amendment, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
          "That chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-a; that sections four, five and nine, article two of said chapter be amended and reenacted; that section one, article three of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section six; that sections one-c, one-d and six, article four of said chapter be amended and reenacted; and that article four-b of said chapter be amended by adding thereto a new section, designated section eight-b, all to read as follows:
ARTICLE 1A. WORKERS' COMPENSATION DEFICIT REDUCTION ACT.
§23-1A-1. Short title; intent and findings.
          (a) The amendments to this chapter enacted during the regular session of the Legislature in the year two thousand three shall be known as the 'Workers' Compensation Deficit Reduction Act'.
§23-1A-2. Legislative intent and findings.
          It is the intent of the Legislature that the amendments to this chapter enacted during the regular session of the Legislature in the year two thousand three be applied from the date upon which the enactment is made effective by the Legislature. The Legislature finds that a deficit exists in the workers' compensation fund of such critical proportions that it constitutes an imminent threat to the immediate and long-term solvency of the fund, and that although provisions of the enactment may appear to be inconsistent with the provisions of the decision of the West Virginia Supreme Court of Appeals in the case of State ex rel. Blankenship v. Richardson, the Legislature finds that an emergency exists as a result of the combined effect of this deficit, other state budgetary deficits and liabilities, and other grave social and economic circumstances currently confronting the State, and that unless the changes provided by the enactment of the amendments to this chapter, as well as other legislation designed to address the problem are made effective immediately, the fiscal stability of this state will suffer irreparable harm. Accordingly, the Legislature finds that the need of the citizens of this state for the protection of state treasury and the solvency of the workers' compensation fund requires the limitations on any expectations that may have arisen from prior enactments of this chapter.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO CHAPTER; EXTRATERRITORIAL COVERAGE.
§23-2-4. Classification of industries; rate of premiums; authority to adopt various systems; accounts.
          (a) The commissioner, in conjunction with the compensation programs performance council, is authorized to establish by rule a system for determining the classification and distribution into classes of employers subject to this chapter, a system for determining rates of premium taxes applicable to employers subject to this chapter, a system of multiple policy options with criteria for subscription thereto, and criteria for an annual employer's statement providing both benefits liability information and rate determination information.
          (1) In addition, the rule shall provide for, but not be limited to:
          (A) Rate adjustments by industry or individual employer, including merit rate adjustments;
          (B) Notification regarding rate adjustments prior to the quarter in which the rate adjustments will be in effect;
          (C) Chargeability of claims; and
          (D) Such further matters that are necessary and consistent with the goals of this chapter;.
          (2) The rule shall be consistent with the duty of the commissioner and the compensation programs performance council to fix and maintain the lowest possible rates of premium taxes consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in such fund and in keeping with their fiduciary obligations to the fund;.
          (3) The rule shall be consistent with generally accepted actuarial and accounting principles;.
          (4) The rule shall be consistent with classification and rate-making methodologies found in the insurance industry.~~; and~~
          (5) The rule shall be consistent with the principles of promoting more effective workplace health and safety programs as contained in article two-b of this chapter.
          (6) Prior to the first day of July, two thousand three, the commissioner shall obtain the written professional opinion of a qualified actuary that certifies, as to each classification of employers and in the aggregate, the lowest possible rates of premium taxes or other assessments applicable to employers subject to this chapter that are consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in such fund within a period certified as reasonable by the actuary, such period to be subject to the approval of the compensation programs performance council. Beginning the first day of July, two thousand three, the commissioner shall fix and maintain the rates of those premium taxes at the amounts certified by the actuary. Thereafter the rates of premium taxes or other assessments applicable to employers subject to this chapter shall be those similarly certified in the written professional opinion of a qualified actuary. The professional written opinion of an actuary shall be obtained by the commissioner at least annually prior to the first day of July of each year. It shall be a violation of this chapter to:
__________Fix and maintain the rate of any premium tax other than at the rate certified by the actuary;
__________Fail to obtain the opinion of an actuary as required by this section; or
__________Permit a rate of premium tax to be maintained at any rate that is not the rate certified by the most recent professional opinion of an actuary as required by this section.
          (b) Notwithstanding any other provision of this chapter to the contrary, the compensation programs performance council may elect to premise its premium tax determination methodology on the aggregate number of hours worked by employees of the employer rather than upon the gross wages of the employer. Such an election may apply to all industrial classifications or to less than all. If this election is made, then in all instances in which this chapter refers to gross wage reports for the purpose of premium tax determination such references shall be taken to mean a report of the number of hours so worked.
          (c) The rule authorized by subsection (a) of this section shall be promulgated on or before the first day of July, one thousand nine hundred ninety-six. Until the rule is finally promulgated the prior provisions of this section as found in chapter one hundred seventy-one of the acts of the Legislature, one thousand nine hundred ninety-three, shall remain in effect.
          ~~(d)~~(c) In accordance with generally accepted accounting principles, the workers' compensation division shall keep an accurate accounting of all money or moneys earned, due, and received by the workers' compensation fund, and of the liability incurred and disbursements made against the same; and an accurate account of all money or moneys earned, due and received from each individual subscriber, and of the liability incurred and disbursements made against the same.
§23-2-5. Application; payment of premium taxes; gross wages; payroll report; deposits; delinquency; default; reinstatement; payment of benefits; notice to employees; criminal provisions; penalties.
          (a) For the purpose of creating a workers' compensation fund, each employer who is required to subscribe to the fund or who elects to subscribe to the fund shall pay premium taxes calculated as a percentage of the employer's gross wages payroll at the rate determined by the workers' compensation division and then in effect. At the time each employer subscribes to the fund, the application required by the division shall be filed and a premium deposit equal to the first quarter's estimated premium tax payment shall be remitted. The minimum quarterly premium to be paid by any employer shall be twenty-five dollars.
          (1) Thereafter, premium taxes shall be paid quarterly on or before the last day of the month following the end of the quarter, and shall be the prescribed percentage of the entire gross wages of all employees, from which net payroll is calculated and paid, during the preceding quarter. The division may ~~permit~~ require employers who qualify under the provisions of rules promulgated by the compensation programs performance council to report gross wages and pay premium taxes at other intervals.
          (2) Every subscribing employer shall make a gross wages payroll report to the division for the preceding reporting period. The report shall be on the form or forms prescribed by the division, and shall contain all information required by the division.
          (3) After subscribing to the fund, each employer shall remit with each premium tax payment an amount calculated to be sufficient to maintain a premium deposit equal to the premium payment for the previous reporting period. The division may reduce the amount of the premium deposit required from seasonal employers for those quarters during which employment is significantly reduced. If the employer pays premium tax on a basis other than quarterly, the division may require the deposit to be based upon some other time period. The premium deposit shall be credited to the employer's account on the books of the division and used to pay premium taxes and any other sums due the fund when an employer becomes delinquent or in default as provided in this article.
          (4) All premium taxes and premium deposits required by this article to be paid shall be paid by the employers to the division, which shall maintain a record of all sums so received. Any such sum mailed to the division shall be deemed to be received on the date the envelope transmitting it is postmarked by the United States postal service. All sums received by the division shall be deposited in the state treasury to the credit of the workers' compensation division in the manner now prescribed by law.
          (5) The division may encourage employer efforts to create and maintain safe workplaces, to encourage loss prevention programs, and to encourage employer provided wellness programs, through the normal operation of the experience rating formula, seminars and other public presentations, the development of model safety programs and other initiatives as may be determined by the commissioner and the compensation programs performance council.
          (b) Failure of an employer to timely pay premium taxes or any other assessment, to timely file a payroll report or to maintain an adequate premium deposit, shall cause the employer's account to become delinquent. No employer will be declared delinquent or be assessed any penalty therefor if the division determines that such delinquency has been caused by delays in the administration of the fund. The division shall, in writing, within sixty days of the end of each quarter or other applicable reporting period notify all delinquent employers of their failure to timely pay premium taxes or other assessments, to timely file a payroll report or other report or to maintain an adequate premium deposit. Each employer who shall fail to timely file any quarterly payroll report or other report or timely pay the premium tax or other assessment due with such report, or both, for any quarter commencing on and after the first day of July, one thousand nine hundred ninety-five, shall pay a late reporting or payment penalty of the greater of fifty dollars or a sum obtained by multiplying the premium tax or other assessment due with such report by the penalty rate applicable to that ~~quarter~~ reporting period. The penalty rate to be used in a workers' compensation division's fiscal year shall be calculated annually on the first day of each fiscal year. The penalty rate used to calculate the penalty for each quarter in a fiscal year is the quotient, rounded to the nearest higher whole number percentage rate, obtained by dividing the sum of the prime rate plus four percent by four. The prime rate shall be the rate published in the Wall Street Journal on the last business day of the division's prior fiscal year reflecting the base rate on corporate loans posted by at least seventy-five percent of the nation's thirty largest banks. Such late penalty shall be paid with the most recent quarter's report and payment and is due when that quarter's report and payment are filed. If such late penalty is not paid when due, the same may be charged to and collected by the division from the employer's premium deposit account or otherwise as provided for by law. The notification shall demand the filing of the delinquent payroll report and payment of delinquent premium taxes or other assessment, the penalty for late reporting or payment of premium taxes, assessment or premium deposit, the interest penalty and an amount sufficient to maintain the premium deposit, before the end of the third month following the end of the preceding ~~quarter~~ reporting period. Interest shall accrue and be charged on the delinquent premium payment and premium deposit pursuant to section thirteen of this article.
          (c) Whenever the division notifies an employer of the delinquent status of its account, the notification shall explain the legal consequence of subsequent default by an employer required to subscribe to the fund and the legal consequences of termination of an electing employer's account.
          (d) Failure by the employer, who is required to subscribe to the fund and who fails to resolve the delinquency within the prescribed period, shall place the account in default and shall deprive such default employer of the benefits and protection afforded by this chapter, including section six of this article, and the employer shall be liable as provided in section eight of this article. The default employer's liability under said sections shall be retroactive to midnight of the last day of the month following the end of the quarter for which the delinquency occurs. The division shall notify the default employer of the method by which the employer may be reinstated with the fund. The division shall also notify the employees of such employer by written notice as hereinafter provided for in this section.
          (e) Failure by any employer, who voluntarily elects to subscribe, to resolve the delinquency within the prescribed period shall place the account in default and shall automatically terminate the election of such employer to pay into the workers' compensation fund and shall deprive such employer and the employees of the default elective employer of the benefits and protection afforded by this chapter, including section six of this article, and such employer shall be liable as provided in section eight of this article. The default employer's liability under said section shall be retroactive to midnight of the last day of the month following the end of the quarter for which the delinquency occurs. Employees who were the subject of the default employer's voluntary election to provide them the benefits afforded by this chapter shall have such protection terminated at the time of their employer's default.
          (f)(1) Except as provided for in subdivision (3) of this subsection, any employer who is required to subscribe to the fund and who is in default on the effective date of this section or who subsequently defaults, and any employer who has elected to subscribe to the fund and who defaults and whose account is terminated prior to the effective date of this section or whose account is subsequently terminated, shall be restored immediately to the benefits and protection of this chapter only upon the filing of all delinquent payroll and other reports required by the division and payment into the fund of all unpaid premiums, an adequate premium deposit, accrued interest and the penalty for late reporting and payment. Interest shall be calculated as provided for by section thirteen of this article.
          The division shall not have the authority to waive either premium or accrued interest. The provisions of section seventeen of this article apply to any action or decision of the division under this section.
          (2) The division shall have the authority to restore a defaulted or terminated employer through a reinstatement agreement. Such reinstatement agreement shall require the payment in full of all premium taxes, premium deposits, the penalty for late reporting and payment, past accrued interest and future interest calculated pursuant to the provisions of section thirteen of this article. Notwithstanding the filing of a reinstatement application or the entering into of a reinstatement agreement, the division is authorized to file a lien against the employer as provided by section five-a of this article. In addition, entry into a reinstatement agreement is discretionary with the division. Such discretion shall be exercised in keeping with the fiduciary obligations owed to the workers' compensation fund. Should the division decline to enter into a reinstatement agreement and should the employer not comply with the provisions of subdivision (1) of this subsection, then the division may proceed with any of the collection efforts provided for by section five-a of this article or as otherwise provided for by this code. Applications for reinstatement shall: (A) Be made upon forms prescribed by the division; (B) include a report of the gross wages payroll of the employer which had not been reported to the division during the entire period of delinquency and default, which gross wages information shall be certified by the employer or its authorized agent; and (C) include a payment of a portion of the liability equal to one half of one percent of the gross payroll during the period of delinquency and default or equal to another portion of the liability as may be determined from time to time by rule but not to exceed the amount of the entire liability due and owing for the period of delinquency and default. An employer who applies for reinstatement shall be entitled to the benefits and protection of this chapter on the day a properly completed and acceptable application which is accompanied by the application payment is received by the division: Provided, That if the division reinstates an employer subject to the terms of a reinstatement agreement, the subsequent failure of the employer to make scheduled payments or to pay accrued or future interest in accordance with the reinstatement agreement or to timely file current quarterly reports and to pay current quarterly premiums within the month following the end of the quarter for which the report and payment are due, or to otherwise maintain its account in good standing or, if the reinstatement agreement does not require earlier restoration of the premium deposit, to restore the premium deposit to the required amount by the end of the repayment period shall cause the reinstatement application and the reinstatement agreement to be null, void and of no effect, and the employer shall be denied the benefits and protection of this chapter effective from the date that such employer's account originally became delinquent.
          (3) Any employer who fails to maintain its account in good standing with regard to subsequent premium taxes and premium deposits after filing an application for reinstatement and prior to the final resolution of an application for reinstatement by entering into a reinstatement agreement or by payment of the liability in full as provided for in subdivision (1) of this subsection shall cause the reinstatement application to be null, void and of no effect, and the employer shall be denied the benefits and protection of this chapter effective from the date that such employer's account originally became delinquent.
          (4) Following any failure of an employer to comply with the provisions of a reinstatement agreement, the division may then make and continue with any of the collection efforts provided for by this chapter or elsewhere in this code even if the employer files another reinstatement application.
          (g) With the exception noted in subsection (h), section one of this article, no employee of an employer required by this chapter to subscribe to the workers' compensation fund shall be denied benefits provided by this chapter because the employer failed to subscribe or because the employer's account is either delinquent or in default.
          (h)(1) The provisions of this section shall not deprive any individual of any cause of action which has accrued as a result of an injury or death which occurred during any period of delinquency not resolved in accordance with the provisions of this article, or subsequent failure to comply with the terms of the repayment agreement.
          (2) Upon withdrawal from the fund or termination of election of any employer, the employer shall be refunded the balance due the employer of its deposit, after deducting all amounts owed by the employer to the workers' compensation fund and other agencies of this state, and the division shall notify the employees of such employer of said termination in such manner as the division may deem best and sufficient.
          (3) Notice to employees in this section provided for shall be given by posting written notice that the employer is defaulted under the compensation law of West Virginia, and in the case of employers required by this chapter to subscribe and pay premiums to the fund, that the defaulted employer is liable to its employees for injury or death, both in workers' compensation benefits and in damages at common law or by statute; and in the case of employers not required by this chapter to subscribe and pay premiums to the fund, but voluntarily electing to do so as herein provided, that neither the employer nor the employees of such employer are protected by said laws as to any injury or death sustained after the date specified in said notice. Such notice shall be in the form prescribed by the division and shall be posted in a conspicuous place at the chief works of the employer, as the same appear in records of the division. If said chief works of the employer cannot be found or identified, then said notices shall be posted at the front door of the courthouse of the county in which said chief works are located, according to the division's records. Any person who shall, prior to the reinstatement of said employer, as hereinbefore provided for, or prior to sixty days after the posting of said notice, whichever shall first occur, remove, deface or render illegible said notice, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined one thousand dollars, and said notice shall state this provision upon its face. The division may require any sheriff, deputy sheriff, constable or other official of the state of West Virginia, who may be authorized to serve civil process, to post such notice and to make return thereof of the fact of such posting to the division, and any failure of such officer to post any notice within ten days after he or she shall have received the same from the division, without just cause or excuse, shall constitute a willful failure or refusal to perform a duty required of him or her by law within the meaning of section twenty-eight, article five, chapter sixty-one of this code. Any person actually injured by reason of such failure shall have an action against said official, and upon any official bond he or she may have given, for such damages as such person may actually have incurred, but not to exceed, in the case of any surety upon said bond, the amount of the penalty of said bond. Any official posting said notice as herein required shall be entitled to the same fee as is now or may hereafter be provided for the service of process in suits instituted in courts of record in the state of West Virginia, which fee shall be paid by the division out of any funds at its disposal, but shall be charged by the division against the account of the employer to whose delinquency such notice relates.
§23-2-9. Election of employer to be self-insured and to provide own system of compensation; ~~mandatory participation in second injury reserve;~~ exceptions; catastrophe coverage; self administration; regulation of self insurers.
          (a) Notwithstanding any provisions of this chapter to the contrary, the following types of employers may apply for permission to self-insure their workers' compensation risk including their risk of catastrophic injuries ~~Except as provided for in subsection (e) of this section, no employer may self-insure its second injury risk~~.
          (1) The types of employers are:
          (A) Any employer who is of sufficient capability and financial responsibility to ensure the payment to injured employees and the dependents of fatally injured employees of benefits provided for in this chapter at least equal in value to the compensation provided for in this chapter; or
          (B) Any employer of such capability and financial responsibility who maintains its own benefit fund or system of compensation to which its employees are not required or permitted to contribute and whose benefits are at least equal to value to those provided for in this chapter.
          (2) In order to be approved for self-insurance status, the employer must:
          (A) Have an effective health and safety program at its workplace; and
          (B) Provide security or bond in an amount or form, or in amount and form, to be determined by the division with concurrence of the compensation programs performance council, and which shall balance the employer's financial condition based upon an analysis of its audited financial statements and the full accrued value of future claim liability based upon generally accepted actuarial and accounting principles of the employer's existing and expected liability.; and
          (C) Security or bond which may be in such form as the commissioner and the compensation programs performance council created pursuant to section one, article three, chapter twenty-one-a of this code permits.
          (3) Any employer whose record upon the books of the division shows a liability, as determined on an accrued basis against the workers' compensation fund incurred on account of injury to or death of any of the employer's employees, in excess of premiums paid by such employer, shall not be granted the right, individually and directly or from such benefit funds or system of compensation, to be self-insured until the employer has paid into the workers' compensation fund the amount of such excess of liability over premiums paid, including the employer's proper proportion of the liability incurred on account of catastrophes or second injuries as defined in section one, article three of this chapter and charged against such fund.
          (4) Upon a finding that the employer has met all of the requirements of this section, the employer may be permitted self-insurance status. An annual review of each self-insurer's continuing ability to meets its obligations and the requirements of this section shall be made by the workers' compensation division. This review shall include a redetermination of the amount of security or bond which shall be provided by the employer. Failure to provide any new amount or form of security or bond may, in the division's discretion, cause the employer's self-insurance status to be terminated. The security or bond provided by employers prior to the second day of February, one thousand nine hundred ninety five, shall continue in full force and effect until the performance of the employer's annual review and the entry of any appropriate decision on the amount or form of the employer's security or bond.
          (5) Whenever a self-insured employer shall furnish security or bond, including replacement and amended bonds and other securities, as security to ensure the employer's or guarantor's payment of all obligations under this chapter for which the security or bond was furnished, such security or bond shall be in the most current form or forms approved and authorized by the division for use by the employer or its guarantors, surety companies, banks, financial institutions or others in its behalf for such purpose.
          (b) Each self-insured employer shall, on or before the last day of the first month of each quarter, file with the division a certified statement of the total gross wages and earnings of all of the employer's employees subject to this chapter for the preceding quarter. Each self-insured employer shall pay into the workers' compensation fund as portions of its self-insured premium tax or other assessment:
          (1) A sum sufficient to pay the employer's proper portion of the expense of the administration of this chapter;
          (2) A sum sufficient to pay the employer's proper portion of the expense of claims for those employers who are in default in the payment of premium taxes or other obligations;
          (3) A sum sufficient to pay the employer's fair portion of the expenses of the disabled workers' relief fund; and
          (4) A sum sufficient to maintain as an advance deposit an amount equal to the previous quarter's payment of each of the foregoing three sums; and
__________(5) A sum sufficient to pay the employer's deficit amortization assessment.
          (c) The required payments to the employer's injured employees or dependents of fatally injured employees as benefits provided for by this chapter including ~~second injury benefits and~~ catastrophe injury benefits, if applicable, shall constitute the remaining portion of the self-insurer's premium tax.
          (1) If an employer defaults in the payment of any portion of its self-insured premium taxes, the division may, in an appropriate case, determine the full accrued value based upon generally accepted actuarial and accounting principles of the employer's liability including the costs of all awarded claims and of all incurred but not reported claims. The amount so determined may then, in an appropriate case, be assessed against the employer and the division may demand and collect the present value of such defaulted tax liability. Interest shall accrue upon the demanded amount as provided for in section thirteen of this article until the premium tax is fully paid. Payment of all amounts then due to the division and to the employer's employees is a sufficient basis for reinstating the employer to good standing with the fund.
          (2) Such premium tax assessments are special revenue taxes under and according to the provisions of state workers' compensation law and are deemed to be tax claims, as priority claims or administrative expense claims according to those provisions under the law provided in the United States bankruptcy code. In addition, as the same was previously intended by the prior provisions of this section, this amendment and reenactment is for the purpose of clarification of the taxing authority of the workers' compensation division.
          (d) Each self-insured employer shall elect whether or not to self-insure its catastrophic injury risk as defined in subsection (c), section one, article three of this chapter. Nothing in this chapter shall prohibit the self-insured employer from insuring its catastrophic risk through a policy of excess insurance obtained through a private insurance carrier.
          (1) If the employer does not elect to self-insure its catastrophic risk, then the employer shall pay premium taxes for this coverage in the same manner as is provided for in section four of this article and in rules adopted to implement such section. Until such rules are adopted, the employer's premium taxes shall be determined in accordance with the provisions of chapter one hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one. If the employees of such an employer suffer injury or death from a catastrophe, then the payment of the resulting benefits shall be made from the catastrophe reserve of the surplus fund provided for in subsection (b), section one, article three of this chapter. Such an employer's catastrophic liability shall not be included in the liabilities upon which the employer's security or bond is determined in subsection (a) of this section.
          (2) If an otherwise self-insured employer elects not to ~~self-insure~~ insure its catastrophic risk, then the security or bond required in subsection (a) of this section shall include the liability for the catastrophic risk.
          (e)(1) Any self-insured employer who was, prior to the second day of February, one thousand nine hundred ninety-five, permitted to self-insure its second injury risk as defined in subsection (d), section one, article three of this chapter, may elect to continue to self-insure its second injury risk for so long as it meets the requirements of this chapter. Any employer which was previously permitted to self-insure its second injury risk who then elects to terminate that self-insurance status shall not thereafter be permitted to self-insure its second injury risk.
          ~~(2)~~(e) For those employers previously permitted to self-insure their second injury risks, the amount of the security or bond required in subsection (a) of this section shall include the liability for that risk. All self-insured second injury benefits provided for by this chapter which are awarded to the employer's employees ~~which constitute second injury life awards~~ shall ~~then~~ be paid by the employer and not the division.
          (3)(A) For those employers which do not self-insure their second injury risk, the premium tax for second injury coverage shall be determined by the rules which implement section four of this article. Such rules may provide for merit rate adjustments of the amount of premium tax to be paid based upon the accrued costs to be determined under generally accepted accounting principles of second injury benefits paid and to be paid to the employer's employees. Until such rules are adopted, the employer's premium taxes shall be determined in accordance with the provisions of chapter one hundred seventy-four, acts of the Legislature, one thousand nine hundred ninety-one.
          (B) In case there is a second injury to an employee of any employer making such second injury premium tax payments, the employer shall be liable to pay compensation or expenses arising from or necessitated by the second injury and such compensation and expenses shall be charged against the employer. After the completion of these payments, the employee shall be paid the remainder of the compensation and expenses that would be due for permanent total disability from the second injury reserve of the surplus fund. Such additional compensation and expenses shall not be charged against such employer.
          (f) The division, with concurrence of the compensation programs performance council, may create, implement, establish and administer a perpetual self-insurance security risk pool of funds, sureties, securities, insurance provided by private insurance carriers or other states' programs, and other property, of both real and personal properties, to secure the payment of obligations of self- insured employers. If such pool is created, the division, with concurrence of the compensation programs performance council, shall adopt rules for the organizational plan, participation, contributions and other payments which may be required of self-insured employers under this section. The council~~, in order to create and fund such a risk pool,~~ may adopt a rule authorizing the division to assess each self-insured employer in proportion according to each employer's portion of the unsecured obligation and liability or to assess according to some other method provided for by rule which shall properly create and fund such risk pool to serve the needs of employees, employers, and the workers' compensation fund by providing adequate security. The council, in funding such security risk pool, may authorize the division to use any assessments, premium tax assessments and revenues and appropriations as may be made available to the division.
          (g) Any self-insured employer which has had a period of inactivity due to the nonemployment of employees which results in its reporting of no wages on quarterly reports to the division for a period of four or more consecutive quarters shall have its status at the division inactivated and shall be required to apply for reactivation to status as a self-insured employer prior to its reemployment of employees. Despite such inactivation, the self-insured employer shall continue to make payments on all awards for which it is responsible. Upon application for reactivation of its status as an operating self-insured employer, the employer must document that it meets the eligibility requirements needed to maintain self-insured status under this section and any rules adopted to implement it. If the employer is unable to requalify and obtain approval for reactivation, the employer shall, effective with the date of employment of any employee, become a subscriber to the workers' compensation fund, but shall continue to be a self-insurer as to the prior period of active status and to furnish security or bond and meets its prior self-insurance obligations.
          (h) In any case under the provisions of this section that shall require the payment of compensation or benefits by an employer in periodical payments and the nature of the case makes it possible to compute the present value of all future payments, then the division may, in its discretion, at any time compute and permit to be paid into the workers' compensation fund an amount equal to the present value of all unpaid future payments on the award or awards for which liability exists in trust. Thereafter, such employer shall be discharged from any further portion of premium tax liability upon such award or awards and payment of the award or awards shall be assumed by the division.
          (i) Any employer subject to this chapter, who shall elect to carry the employer's own risk by being self-insured and who has complied with the requirements of this section and of any applicable rules, shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after such election's approval and during the period that the employer is allowed to carry the employer's own risk.
          (j) Notwithstanding any provisions in this chapter to the contrary, self-insured employers shall, effective the first day of July, two thousand three, administer their own claims. The commissioner shall, with concurrence of the compensation programs performance council, develop and publish such rules as necessary to regulate the administration of claims by employers granted permission to self-insure their obligations under this chapter. Such rules shall be promulgated at least thirty days prior to the first day of July, two thousand three.
__________(k) An employer granted permission to self-insure its obligations under this chapter shall at all times be bound by and shall comply fully with all of the provisions of this chapter, and with such rules relating to self-insurance claims administration as may be promulgated by the commissioner. Each self-insured employer or the employer's representatives, or the self-insured employer and the employer's representatives, shall be audited on a basis and a frequency to be determined by the commissioner, but in no event less often than bi-annually. Repeated violations of the provisions of this chapter constitute sufficient grounds for the termination of the authority for an employer to self- insure its obligations under this chapter.
ARTICLE 3. WORKERS' COMPENSATION FUND.

§23-3-1. Compensation fund; surplus fund; catastrophe and catastrophe payment defined; ~~second injury and second injury reserve;~~ compensation by employers.

          (a) The commissioner shall establish a workers' compensation fund from the premiums and other funds paid thereto by employers, as herein provided, for the benefit of employees of employers who have paid the premiums applicable to such employers and have otherwise complied fully with the provisions of section five, article two of this chapter, and for the benefit, to the extent elsewhere in this chapter set out, of employees of employers who have elected, under section nine, article two of this chapter, to make payments into the surplus fund hereinafter provided for, and for the benefit of the dependents of all such employees, and for the payment of the administration expenses of this chapter.
          (b) A portion of all premiums that shall be paid into the workers' compensation fund by subscribers not electing to carry their own risk under section nine, article two of this chapter, shall be set aside to create and maintain a surplus fund to cover the catastrophe hazard~~, the second injury hazard,~~ and all losses not otherwise specifically provided for in this chapter. The percentage to be set aside shall be determined pursuant to the rules adopted to implement section four, article two of this chapter and shall be in an amount sufficient to maintain a solvent surplus fund. All interest or other return earned on investments by of the workers' compensation fund, which is attributable to the surplus fund, shall be credited to the surplus fund.
          (c) A catastrophe is hereby defined as an accident in which three or more employees are killed or receive injuries, which, in the case of each individual, consist of: Loss of both eyes or the sight thereof; or loss of both hands or the use thereof; or loss of both feet or the use thereof; or loss of one hand and one foot or the use thereof. The aggregate of all medical and hospital bills and other costs, and all benefits payable on account of a catastrophe is hereby defined as 'catastrophe payment'. In case of a catastrophe to the employees of an employer who is an ordinary premium- paying subscriber to the fund, or to the employees of an employer who, having elected to carry the employer's own risk under section nine, article two of this chapter, has heretofore elected, or may hereafter elect, to pay into the catastrophe reserve of the surplus fund under the provisions of that section, then the catastrophe payment arising from such catastrophe shall not be charged against, or paid by, such employer but shall be paid from the catastrophe reserve of the surplus fund.
          (d)~~(1) If~~ For all new claims filed on or after the effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, and for all claims filed before that effective date in which eligibility for permanent total disability has not been determined as of that effective date, the following provisions relating to second injury are not applicable. For claims filed before the date specified above, if an employee who has a definitely ascertainable physical impairment, caused by a previous occupational injury, occupational pneumoconiosis or occupational disease, irrespective of its compensability, becomes permanently and totally disabled through the combined effect of such previous injury and a second injury received in the course of and as a result of his or her employment, the employer shall be chargeable only for the compensation payable for such second injury: Provided, That in addition to such compensation, and after the completion of the payments therefore, the employee shall be paid the remainder of the compensation that would be due for permanent total disability out of a special reserve of the surplus fund ~~known as the second injury reserve~~, created in the manner hereinbefore set forth. The procedure by which the claimant's request for a permanent total disability award under this section is ruled upon shall require that the issue of the claimant's degree of permanent disability first be determined. Thereafter, by means of a separate order, a decision shall be made as to whether the award shall be a second injury award under this subsection or a permanent total disability award to be charged to the employer's account or to be paid directly by the employer if the employer has elected to be self-insured under the provisions of section nine, article two of this chapter.
          (2) If an employee of an employer, where the employer has elected to carry his or her own risk under section nine, article two of this chapter, and is permitted not to make payments into the second injury reserve of surplus fund under the provisions of said section, has a definitely ascertainable physical impairment caused by a previous occupational injury, occupational pneumoconiosis or occupational disease, irrespective of its compensability, and becomes permanently and totally disabled from the combined effect of such previous injury and a second injury received in the course of and as a result of his or her employment, the employee shall be granted an award of total permanent disability and his or her employer shall, upon order of the division, compensate the said employee in the same manner as if the total permanent disability of the employee had resulted from a single injury while in the employ of such employer.
          (e) Employers electing, as herein provided, to compensate individually and directly their injured employees and their fatally injured employees' dependents shall do so in the manner prescribed by the division, and shall make all reports and execute all blanks, forms and papers as directed by the division, and as provided in this chapter.
§23-3-6. Emergency fiscal measures.
          (a) In addition to other measures provided by this act intended by the Legislature to address the imminent threat to the fiscal solvency of the workers' compensation fund, the Legislature finds that the prudent use of available moneys may be necessary to supplement the efforts to reduce and eliminate the threat. The provisions of this sections are enacted for those purposes.
          (b) The following measures, which may be used either singly or in combination, and without regard to the order in which they are set forth herein, are authorized for the purposes described in this section:
          (1) Upon meeting the conditions and requirements of subsection (a), section eight-b, article four-b of this chapter, the division may expend the assets described in said subsection (a) and any income earned thereon to satisfy the obligations of the workers' compensation fund.
          (2) Upon meeting the conditions and requirements of subsections (b) and (c), section eight-b, article four-b of this chapter, and upon appropriation of the Legislature, the division may expend the assets described in said subsection (b) and any income earned thereon to satisfy the obligations of the fund.
          (3) If in any year expenditures from the workers' compensation fund exceed assets in that fund, the commissioner may under the following conditions request a transfer of moneys from the principal of the West Virginia tobacco settlement medical trust fund created in section two, article eleven-a, chapter four of this code. Prior to requesting the transfer the commissioner shall obtain an opinion from the division's actuary as to the amount of the deficit in the workers' compensation fund. Upon meeting the requirements of this subsection, the commissioner shall submit a written request to the joint committee on government and finance that an amount determined by the Legislature be transferred by appropriation from the principal of the West Virginia tobacco settlement medical trust fund to the workers compensation fund. Upon appropriation by the Legislature, the division may expend the assets transferred and any income earned thereon to satisfy the obligations of the fund.
          (4)(A) If in any year expenditures from the workers' compensation fund exceed assets in that fund, the commissioner may under the following conditions request a transfer of moneys from the general revenue fund of the state. Prior to requesting the transfer the commissioner shall obtain an opinion from the division's actuary as to the amount of the deficit in the workers' compensation fund. Upon meeting the requirements of this subsection, the commissioner shall submit a written request to the governor to provide for a general reduction of appropriations for the year in general revenue to provide moneys for transfer to the workers' compensation fund. The commissioner shall also submit a request to the joint committee on government and finance that an amount determined by the Legislature be transferred by appropriation from the general revenue fund to the workers compensation fund. Upon appropriation of the Legislature, the division may expend the assets transferred and any income earned thereon to satisfy the obligations of the workers' compensation fund.
          (B) The governor may direct the secretary of administration to reduce equally and pro rata all appropriations out of general revenue in such a degree as the governor may determine to be necessary for the purposes of this subdivision.
          (5) Upon any exercise of the authority granted by this section, the commissioner shall not increase benefit rates as provided in section fourteen, article four of this chapter and shall conduct an investigation into the causes of the deficit and determine the best course of action to alleviate the shortfall.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1c. Payment of temporary total disability benefits directly to claimant; payment of medical benefits; payments of benefits during protest; right of division to collect payments improperly made.
          (a) In any claim for benefits under this chapter, the workers' compensation division shall determine whether the claimant has sustained a compensable injury within the meaning of section one of this article and the division shall enter an order giving all parties immediate notice of such decision.
          (1) The division may enter an order conditionally approving the claimant's application if the division finds that obtaining additional medical evidence or evaluations or other evidence related to the issue of compensability would aid the division in making a correct final decision. Benefits shall be paid during the period of conditional approval; however, if the final decision is one that rejects the claim, then any such payments shall be considered an overpayment. The division may only recover the amount of such an overpayment as provided for in subsection (i) of this section.
          (2) In making a determination regarding the compensability of a newly filed claim or upon a filing for the reopening of a prior claim pursuant to the provisions of section sixteen of this article based upon an allegation of recurrence, reinjury, aggravation or progression of the previous compensable injury or in the case of a filing of a request for any other benefits under the provisions of this chapter, the division shall consider the date of the filing of the claim for benefits for a determination of the following:
          (A) Whether the claimant had scheduled shutdown beginning within one week of the date of the filing; or
          (B) Whether the claimant received notice within sixty days of the filing that his or her employment position was to be eliminated, including, but not limited to, the claimant's worksite, a layoff or the elimination of the claimant's employment position; or
          (C) Whether the claimant is receiving unemployment compensation benefits at the time of the filing; or
          (D) Whether the claimant has received unemployment compensation benefits within sixty days of the filing.
          In the event of an affirmative finding upon any of these four factors, then such finding shall be given probative weight in the overall determination of the compensability of the claim or of the merits of the reopening request.
          (3) Any party shall have the right to object to the order of the division and obtain an evidentiary hearing as provided in section one, article five of this chapter.
          (b) Where it appears from the employer's report, or from proper medical evidence, that a compensable injury will result in a disability which will last longer than three days as provided in section five of this article, the division may immediately enter an order commencing the payment of temporary total disability benefits to the claimant in the amounts provided for in sections six and fourteen of this article, and the payment of the expenses provided for in subsection (a), section three of this article, relating to said injury, without waiting for the expiration of the thirty-day period during which objections may be filed to such findings as provided in section one, article five of this chapter. The division shall enter an order commencing the payment of temporary total disability or medical benefits within fifteen days of receipt of either the employee's or employer's report of injury, whichever is received sooner, and also upon receipt of either a proper physician's report or any other information necessary for a determination. The division shall give to the parties immediate notice of any order granting temporary total disability or medical benefits.
          (c) The division may enter orders granting temporary total disability benefits upon receipt of medical evidence justifying the payment of such benefits. In no claim shall the division enter an order granting prospective temporary total disability benefits for a period of more than ninety days: Provided, That when the division determines that the claimant remains disabled beyond the period specified in the prior order granting temporary total disability benefits, the division shall enter an order continuing the payment of temporary total disability benefits for an additional period not to exceed ninety days, and shall give immediate notice to all parties of such decision.
          (d) Upon receipt of the first report of injury in claim, the division shall request from the employer or employers any wage information necessary for determining the rate of benefits to which the employee is entitled. If an employer does not furnish the division with this information within fifteen days from the date the division received the first report of injury in the case, the employee shall be paid temporary total disability benefits for lost time at the rate the division obtains from reports made pursuant to section eleven, article ten, chapter twenty-one-a of this code. If no such wages have been reported, then the division shall make such payments at the rate the division finds would be justified by the usual rate of pay for the occupation of the injured employee. The division shall adjust the rate of benefits both retroactively and prospectively upon receipt of proper wage information. The division shall have access to all wage information in the possession of any state agency.
          (e) Subject to the limitations set forth in section sixteen of this article, upon a finding of the division that a claimant who has sustained a previous compensable injury which has been closed by any order of the division, or by the claimant's return to work, suffers further temporary total disability or requires further medical or hospital treatment resulting from the compensable injury, the division shall immediately enter an order commencing the payment of temporary total disability benefits to the claimant in the amount provided for in sections six and fourteen of this article, and the expenses provided for in subsection (a), section three of this article, relating to said disability, without waiting for the expiration of the thirty-day period during which objections may be filed to such findings as provided in section one, article five of this chapter. The division shall give immediate notice to the parties of its order.
          (f) Where the employer is a subscriber to the workers' compensation fund under the provisions of article three of this chapter, and upon the findings aforesaid, the division shall mail all workers' compensation checks paying temporary total disability benefits directly to the claimant and not to the employer for delivery to the claimant.
          (g) Where the employer has elected to carry its own risk under section nine, article two of this chapter, and upon the findings aforesaid, the division shall immediately issue a pay order directing the employer to pay such amounts as are due the claimant for temporary total disability benefits. A copy of the order shall be sent to the claimant. The the self-insured employer shall commence such payments by mailing or delivering the payments directly to the employee within ten days of the date of the receipt of the pay order by the employer. If the self-insured employer believes that its employee is entitled to benefits, the employer may start payments before receiving a pay order from the division.
          (h) In the event that an employer files a timely objection to any order of the division with respect to compensability, or any order denying an application for modification with respect to temporary total disability benefits, or with respect to those expenses outlined in subsection (a), section three of this article, the division shall continue to pay to the claimant such benefits and expenses during the period of such disability. Where it is subsequently found by the division that the claimant was not entitled to receive such temporary total disability benefits or expenses, or any part thereof, so paid, the division shall, when the employer is a subscriber to the fund, credit said employer's account with the amount of the overpayment; and, when the employer has elected to carry its own risk, the division shall refund to such employer the amount of the overpayment. The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division to the surplus fund created in section one, article three of this chapter.
          (i) When the employer has protested the compensability or applied for modification of a temporary total disability benefit award or expenses and the final decision in such case determines that the claimant was not entitled to such benefits or expenses, the amount of such benefits or expenses shall be considered overpaid. The division may only recover the amount of such benefits or expenses by withholding, in whole or in part, as determined by the division, future permanent partial disability benefits payable to the individual in the same or other claims and credit such amount against the overpayment until it is repaid in full.
          (j) In the event that the division finds that based upon the employer's report of injury, the claim is not compensable, the division shall provide a copy of such employer's report to the claimant in addition to the order denying the claim.
§23-4-1d. Method and time of payments for permanent disability.
          (a) If the division makes an award for permanent partial or permanent total disability, the division or self-insured employer shall start payment of benefits by mailing or delivering the amount due directly to the employee within fifteen days from the date of the award: Provided, That the division may withhold payment of the portion of the award that is the subject of the following subsection until seventy-seven days have expired without an objection being filed.
          (b) On and after the first day of July, one thousand nine hundred ninety-five, whenever the division, the office of judges or the workers' compensation appeal board enters an order granting the claimant a permanent total disability award and an objection or appeal is then filed by the employer or the division, the division shall begin the payment of monthly permanent total disability benefits. However, any payment for a back period of benefits from the onset date of total permanent disability to the date of the award shall be limited to a period of twelve months of benefits. If, after all litigation is completed and the time for the filing of any further objections or appeals to the award has expired, the award of permanent total disability benefits is upheld, then the claimant shall receive the remainder of benefits due to him or her based upon the onset date of total permanent disability that was finally determined.
          (c) If the claimant is then owed any additional payment of back permanent total disability benefits, then the division shall not only pay the claimant the sum owed but shall also add thereto interest at the simple rate of six percent per annum from the date of the initial award granting the total permanent disability to the date of the final order upholding the award. In the event that an intermediate order directed an earlier onset date of permanent total disability than was found in the initial award, the interest earning period for that additional period shall begin upon the date of the intermediate award. Any interest payable shall be charged to the account of the employer or shall be paid by the employer if it has elected to carry its own risk.
          (d) If a timely protest to the award is filed, as provided in section one or nine, article five of this chapter, the division or self-insured employer shall continue to pay to the claimant such benefits during the period of such disability unless it is subsequently found that the claimant was not entitled to receive the benefits, or any part thereof, so paid, in which event the division shall, where the employer is a subscriber to the fund, credit said employer's account with the amount of the overpayment; and, where the employer has elected to carry the employer's own risk, the division shall refund to such employer the amount of the overpayment. The amounts so credited to a subscriber or repaid to a self-insurer shall be charged by the division to the surplus fund created by section one, article three of this chapter. If the final decision in any case determines that a claimant was not lawfully entitled to benefits paid to him or her pursuant to a prior decision, such amount of benefits so paid shall be deemed overpaid. The division may only recover such amount by withholding, in whole or in part, as determined by the division, future ~~permanent partial disability~~ benefits, as determined by the compensation programs performance council, payable to the individual in the same or other claims and credit such amount against the overpayment until it is repaid in full.
§23-4-6. Classification of and criteria for disability benefits.
          Where compensation is due an employee under the provisions of this chapter for personal injury, the compensation shall be as provided in the following schedule:
          (a) The expressions 'average weekly wage earnings, wherever earned, of the injured employee, at the date of injury' and 'average weekly wage in West Virginia', as used in this chapter, shall have the meaning and shall be computed as set forth in section fourteen of this article except for the purpose of computing temporary total disability benefits for part-time employees pursuant to the provisions of section six-d of this article.
          (b) If the injury causes temporary total disability, and occurred on or after the effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, the employee shall receive during the continuance thereof a maximum weekly benefit to be computed on the basis of sixty six and two-thirds ~~seventy~~ percent of the average weekly wage earnings, wherever earned, of the injured employee, at the date of injury, not to exceed one hundred percent of the average weekly wage in West Virginia: Provided, That in the case of a claimant whose injury occurred prior to the ~~second day of February, one thousand nine hundred ninety-five~~ effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, the maximum benefit rate shall be the rate applied under the prior enactment of this subsection which was in effect at the time the injury occurred, and the rate shall not be affected by the amendment and reenactment of this section during the regular session of the Legislature in the year two thousand three ~~one thousand nine hundred ninety-five~~. The minimum weekly benefits paid hereunder shall not be less than thirty-three and one-third percent of the average weekly wage in West Virginia, except as provided in section six-d and section nine of this article. In no event, however, shall such minimum weekly benefits exceed the level of benefits determined by use of the then applicable federal minimum hourly wage: Provided, ~~however,~~ That any claimant receiving permanent total disability benefits, permanent partial disability benefits or dependents' benefits prior to the first day of July, one thousand nine hundred ninety-four, shall not have his or her benefits reduced based upon the requirement herein that the minimum weekly benefit shall not exceed the applicable federal minimum hourly wage.
          (c) Subdivision (b) of this section shall be limited as follows: Aggregate award for a single injury causing temporary disability shall be for a period not exceeding two hundred eight weeks.
          (d) For all awards of permanent total disability benefits that are made on or after the second day of February, one thousand nine hundred ninety-five, including those claims in which a request for an award was pending before the division or which were in litigation but not yet submitted for a decision, then benefits shall be payable until the claimant attains the age necessary to receive federal old age retirement benefits under the provisions of the Social Security Act, 42 U.S.C. 401 and 402, in effect on the effective date of this section. Such a claimant shall be paid benefits so as not to exceed a maximum benefit of sixty-six and two-thirds percent of the claimant's average weekly wage earnings, wherever earned, at the time of the date of injury not to exceed one hundred percent of the average weekly wage in West Virginia. The minimum weekly benefits paid hereunder shall be as is provided for in subdivision (b) of this section. In all claims in which an award for permanent total disability benefits was made prior to the second day of February, one thousand nine hundred ninety-five, such awards shall continue to be paid at the rate in effect prior to the said date, subject to annual adjustments for changes in the average weekly wage in West Virginia: Provided, That the provisions of sections one through eight, article four-a of this chapter shall be applied thereafter to all such prior awards that were previously subject to its provisions. A single or aggregate permanent disability of eighty-five percent or more shall entitle the employee to a rebuttable presumption of a permanent total disability for the purpose of paragraph (2), subdivision (n) of this section: Provided, ~~however,~~ That the claimant must also be at least fifty ~~forty~~ percent medically impaired upon a whole body basis or has sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section. The presumption may be rebutted if the evidence establishes that the claimant is not permanently and totally disabled pursuant to subdivision (n) of this section. Under no circumstances shall the division grant an additional permanent disability award to a claimant receiving a permanent total disability award: Provided ~~further~~, That if any claimant thereafter sustains another compensable injury and has permanent partial disability resulting therefrom, the total permanent disability award benefit rate shall be computed at the highest benefit rate justified by any of the compensable injuries~~, and the cost of any increase in the permanent total disability benefit rate shall be paid from the second injury reserve created by section one, article three of this chapter~~.
          (e)(1) For all awards made on or after the second day of February, one thousand nine hundred ninety-five, if the injury causes permanent disability less than permanent total disability, the percentage of disability to total disability shall be determined and the award computed on the basis of four weeks' compensation for each percent of disability determined, at the maximum or minimum benefit rates provided for in subdivision (d) of this section: Provided, That in the case of a claimant whose injury occurred prior to the second day of February, one thousand nine hundred ninety-five, the maximum benefit rate shall be the rate applied under the prior enactment of this section which was in effect at the time the injury occurred, and the rate shall not be affected by the amendment and reenactment of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-five.
          (2) If a claimant is released by his or her treating physician to return to work at the job he or she held before the occupational injury occurred and if the claimant's preinjury employer does not offer the preinjury job or a comparable job to the employee when such a position is available to be offered, then the award for the percentage of partial disability shall be computed on the basis of six weeks of compensation for each percent of disability.
          (3) The minimum weekly benefit under this subdivision shall be as provided in subdivision (b) of this section for temporary total disability.
          (f) If the injury results in the total loss by severance of any of the members named in this subdivision, the percentage of disability shall be determined by the percentage of disability, specified in the following table:
          The loss of a great toe shall be considered a ten percent disability.
          The loss of a great toe (one phalanx) shall be considered a five percent disability.
          The loss of other toes shall be considered a four percent disability.
          The loss of other toes (one phalanx) shall be considered a two percent disability.
          The loss of all toes shall be considered a twenty-five percent disability.
          The loss of forepart of foot shall be considered a thirty percent disability.
          The loss of a foot shall be considered a thirty-five percent disability.
          The loss of a leg shall be considered a forty-five percent disability.
          The loss of thigh shall be considered a fifty percent disability.
          The loss of thigh at hip joint shall be considered a sixty percent disability.
          The loss of a little or fourth finger (one phalanx) shall be considered a three percent disability.
          The loss of a little or fourth finger shall be considered a five percent disability.
          The loss of ring or third finger (one phalanx) shall be considered a three percent disability.
          The loss of ring or third finger shall be considered a five percent disability.
          The loss of middle or second finger (one phalanx) shall be considered a three percent disability.
          The loss of middle or second finger shall be considered a seven percent disability.
          The loss of index or first finger (one phalanx) shall be considered a six percent disability.
          The loss of index or first finger shall be considered a ten percent disability.
          The loss of thumb (one phalanx) shall be considered a twelve percent disability.
          The loss of thumb shall be considered a twenty percent disability.
          The loss of thumb and index finger shall be considered a thirty-two percent disability.
          The loss of index and middle finger shall be considered a twenty percent disability.
          The loss of middle and ring finger shall be considered a fifteen percent disability.
          The loss of ring and little finger shall be considered a ten percent disability.
          The loss of thumb, index and middle finger shall be considered a forty percent disability.
          The loss of index, middle and ring finger shall be considered a thirty percent disability.
          The loss of middle, ring and little finger shall be considered a twenty percent disability.
          The loss of four fingers shall be considered a thirty-two percent disability.
          The loss of hand shall be considered a fifty percent disability.
          The loss of forearm shall be considered a fifty-five percent disability.
          The loss of arm shall be considered a sixty percent disability.
          The total and irrecoverable loss of the sight of one eye shall be considered a thirty-three percent disability. For the partial loss of vision in one, or both eyes, the percentages of disability shall be determined by the division, using as a basis the total loss of one eye.
          The total and irrecoverable loss of the hearing of one ear shall be considered a twenty-two and one-half percent disability. The total and irrecoverable loss of hearing of both ears shall be considered a fifty-five percent disability.
          For the partial loss of hearing in one, or both ears, the percentage of disability shall be determined by the division, using as a basis the total loss of hearing in both ears.
          Should a claimant sustain a compensable injury which results in the total loss by severance of any of the bodily members named in this subdivision, die from sickness or noncompensable injury before the division makes the proper award for such injury, the division shall make such award to claimant's dependents as defined in this chapter, if any; such payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of such claimant after his or her remarriage, and that this liability shall not accrue to the estate of such claimant and shall not be subject to any debts of, or charges against, such estate.
          (g) Should a claimant to whom has been made a permanent partial award die from sickness or noncompensable injury, the unpaid balance of such award shall be paid to claimant's dependents as defined in this chapter, if any; such payment to be made in the same installments that would have been paid to claimant if living: Provided, That no payment shall be made to any surviving spouse of such claimant after his or her remarriage, and that this liability shall not accrue to the estate of such claimant and shall not be subject to any debts of, or charges against, such estate.
          (h) For the purposes of this chapter, a finding of the occupational pneumoconiosis board shall have the force and effect of an award.
          (i) For the purposes of this chapter, with the exception of those injuries provided for in subdivision (f) of this section and in section six-b of this article, the degree of permanent disability other than permanent total disability shall be determined exclusively by the degree of whole body medical impairment that a claimant has suffered. For those injuries provided for in subdivision (f) of this section and section six-b of this article, the degree of disability shall be determined exclusively by the provisions of said subdivision and said section. The occupational pneumoconiosis board created pursuant to section eight-a of this article shall premise its decisions on the degree of pulmonary function impairment that claimants suffer solely upon whole body medical impairment. The workers' compensation division shall adopt standards for the evaluation of claimants and the determination of a claimant's degree of whole body medical impairment. Once the degree of medical impairment has been determined, that degree of impairment shall be the degree of permanent partial disability that shall be awarded to the claimant. This subdivision shall be applicable to all injuries incurred and diseases with a date of last exposure on or after the second day of February, one thousand nine hundred ninety-five, to all applications for an award of permanent partial disability made on and after such date, and to all applications for an award of permanent partial disability that were pending before the division or pending in litigation but not yet submitted for decision on and after such date. The prior provisions of this subdivision shall remain in effect for all other claims.
          (j) From a list of names of seven persons submitted to the commissioner by the health care advisory panel, the commissioner shall appoint an interdisciplinary examining board consisting of five members to evaluate claimants, including by examination if the board so elects. The board shall be composed of three qualified physicians with specialties and expertise qualifying them to evaluate medical impairment and two vocational rehabilitation specialists who are qualified to evaluate the ability of a claimant to perform gainful employment with or without retraining. One member of the board shall be designated annually as chairperson by the commissioner. The term of office of each member of the board shall be six years and until his or her successor has been appointed and has qualified: Provided, That two of the persons initially appointed shall serve a term of six years, two of the remaining persons shall serve a term of four years and the remaining member shall serve a term of two years. Any member of the board may be appointed to any number of terms. Any two physician members and one vocational rehabilitation specialist member shall constitute a quorum for the transaction of business. The commissioner, from time to time, shall fix the compensation to be paid to each member of the board, and the members shall also be entitled to reasonable and necessary traveling and other expenses incurred while actually engaged in the performance of their duties. The board shall perform the duties and responsibilities as assigned by the provisions of this chapter, consistent with the administrative policies developed by the commissioner with the assistance of the compensation programs performance council.
          (1) Prior to the referral of any issue to the interdisciplinary examining board, the division shall conduct such examinations of the claimant as it finds necessary and obtain all pertinent records concerning the claimant's medical history and reports of examinations and forward them to the board at the time of the referral. The division shall provide adequate notice to the employer of the filing of the request for a permanent total disability award and the employer shall be granted an appropriate period in which to respond to the request. The claimant and the employer may furnish all pertinent information to the board and shall furnish to the board any information requested by the board. The claimant and the employer may each submit no more than one report and opinion regarding each issue present in a given claim. The employer shall be entitled to have the claimant examined by medical specialists and vocational rehabilitation specialists: Provided, That the employer is entitled to only one such examination on each issue present in a given claim. Any additional examinations must be approved by the division and shall be granted only upon a showing of good cause. The reports from all employer-conducted examinations must be filed with the board and served upon the claimant. The board may request that those persons who have furnished reports and opinions regarding a claimant provide it with such additional information as the board may deem necessary. Both the claimant and the employer, as well as the division, may submit reports from experts challenging or supporting the other reports in the record regardless of whether or not such an expert examined the claimant or relied solely upon the evidence of record.
          (2) If the board or a quorum thereof elects to examine a claimant, the individual members shall conduct such examinations as are pertinent to each of their specialties. If a claim presents an issue beyond the expertise of the board, the board may obtain advice or evaluations by other specialists. In addition, if the compensation programs performance council determines that the number of applications pending before the board has exceeded the level at which the board can review and make recommendations within a reasonable time, then the council may authorize the commissioner to appoint such additional members to the board as may be necessary to reduce the backlog of applications. Such additional members shall be recommended by the health care advisory panel and the commissioner may make such appointments as he or she chooses from the recommendations. The additional board members shall not serve a set term but shall serve until the council determines that the number of pending applications has been reduced to an acceptable level.
          (3) Referrals to the board shall be limited to matters related to the determination of permanent total disability under the provisions of subdivision (n) of this section and to questions related to medical cost containment, utilization review decisions and managed care decisions arising under section three of this article.
          (4) In the event the board members elect to examine a claimant, the board shall prepare a report stating the tests, examinations, procedures and other observations that were made, the manner in which each was conducted, and the results of each. The report shall state the findings made by the board and the reasons therefor. Copies of the reports of all such examinations shall be served upon the parties and the division and each shall be given an opportunity to respond in writing to the findings and conclusions stated in the reports.
          (5) The board shall state its initial recommendations to the division in writing with an explanation for each such recommendation setting forth the reasons for each. The recommendations shall be served upon the parties and the division and each shall be afforded a thirty-day opportunity to respond in writing to the board regarding the board's recommendations. The board shall then review any such responses and issue its final recommendations. The final recommendations shall then be effectuated by the entry of an appropriate order by the division.
          (6) Except as noted below, objections pursuant to section one, article five of this chapter to any such order shall be limited in scope to matters within the record developed before the workers' compensation division and the board and shall further be limited to the issue of whether the board properly applied the standards for determining medical impairment, if applicable, and the issue of whether the board's findings are clearly wrong in view of the reliable, probative and substantial evidence on the whole record. Should either party contend that the claimant's condition has changed significantly since the review conducted by the board, the party may file a motion with the administrative law judge, together with a report supporting that assertion. Upon the filing of such motion, the administrative law judge shall cause a copy of the report to be sent to the examining board asking the board to review the report and provide such comments as the board chooses within sixty days of the board's receipt of the report. The board may then either supply such comments or, at the board's discretion, request that the claim be remanded to the board for further review by the board. If remanded, the claimant is not required to submit to further examination by the employer's medical specialists or vocational rehabilitation specialists. Following any such remand, the board shall file its recommendations with the administrative law judge for his or her review. If the board elects to respond with comments, such comments shall be filed with the administrative law judge for his or her review. Following the receipt of either the board's recommendations or comment, the administrative law judge shall then issue a written decision ruling upon the asserted change in the claimant's condition. No additional evidence may be introduced during the review of the objection before the office of judges or elsewhere on appeal: Provided, That each party and the division may submit one written opinion on each issue pertinent to a given claim based upon a review of the evidence of record either challenging or defending the board's findings and conclusions. Thereafter, based upon the evidence then of record, the administrative law judge shall issue a written decision containing his or her findings of fact and conclusions of law regarding each issue involved in the objection.
          (k) Compensation payable under any subdivision of this section shall not exceed the maximum nor be less than the weekly benefits specified in subdivision (b) of this section.
          (l) Except as otherwise specifically provided in this chapter, temporary total disability benefits payable under subdivision (b) of this section shall not be deductible from permanent partial disability awards payable under subdivision (e) or (f) of this section. Compensation, either temporary total or permanent partial, under this section shall be payable only to the injured employee and the right thereto shall not vest in his or her estate, except that any unpaid compensation which would have been paid or payable to the employee up to the time of his or her death, if he or she had lived, shall be paid to the dependents of such injured employee if there be such dependents at the time of death.
          (m) The following permanent disabilities shall be conclusively presumed to be total in character:
          Loss of both eyes or the sight thereof.
          Loss of both hands or the use thereof.
          Loss of both feet or the use thereof.
          Loss of one hand and one foot or the use thereof.
          (n)(1) Other than for those injuries specified in subdivision (m) of this section, in order to be eligible ~~to apply~~ for an award of permanent total disability benefits for all injuries incurred and all diseases, including occupational pneumoconiosis, with a date of last exposure on or ~~and~~ after the ~~second day of~~ ~~February, one thousand nine hundred ninety-five, and for all requests for such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five~~ effective date of the amendments to this section enacted during the two thousand three regular session of the Legislature, a claimant must have been awarded the sum of fifty ~~forty~~ percent in prior permanent partial disability awards, have suffered an occupational injury or disease which results in a finding that the claimant has suffered a medical impairment of fifty ~~forty~~ percent or has sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section. ~~Upon filing such an application, the~~ Any such claim will be reevaluated by the examining board pursuant to subdivision (i) of this section to determine if he or she has suffered a whole body medical impairment of fifty ~~forty~~ percent or more resulting from either a single occupational injury or occupational disease or a combination of occupational injuries and occupational diseases or has sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section. A claimant whose prior permanent partial disability awards total eighty-five percent or more shall also be examined by the board and must be found to have suffered a whole body medical impairment of fifty ~~forty~~ percent in order for his or her request to be eligible for further review. The examining board shall review the claim as provided for in subdivision (j) of this section. If the claimant has not suffered whole body medical impairment of at least fifty ~~forty~~ percent or has sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section, then the request shall be denied. Upon a finding that the claimant does have a fifty ~~forty~~ percent whole body medical impairment or has sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section, then the review of the ~~application~~ claim shall continue as provided for in the following paragraph of this subdivision. Those claimants whose prior permanent partial disability awards total eighty-five percent or more and who have been found to have a whole body medical impairment of at least fifty ~~forty~~ percent or have sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section shall then be entitled to the rebuttable presumption created pursuant to subdivision (d) for the remaining issues in the claim. request. For the purposes of determining whether the claimant should be awarded permanent total disability benefits under the second injury provisions of subsection (d), section one, article three of this chapter, only a combination of occupational injuries and occupational diseases, including occupational pneumoconiosis, shall be considered.
          (2) A disability which renders the injured employee unable to engage in substantial gainful activity requiring skills or abilities comparable to those of any gainful activity in which he or she has previously engaged with some regularity and over a substantial period of time shall be considered in determining the issue of total disability. In addition, the vocational standards adopted pursuant to subsection (m), section seven, article three, chapter twenty-one-a of this code shall be considered once they are effective.
          (3) In the event that a claimant, who has been found to have at least a fifty ~~forty~~ percent whole body medical impairment or has sustained a forty ~~thirty-five~~ percent statutory disability pursuant to the provisions of subdivision (f) of this section, is denied an award of permanent total disability benefits pursuant to this subdivision and then accepts and continues to work at a lesser paying job than he or she previously held, then such a claimant shall be eligible, notwithstanding the provisions of section nine of this article, to receive temporary partial rehabilitation benefits for a period of four years. Such benefits shall be paid at the level necessary to ensure the claimant's receipt of the following percentages of the average weekly wage earnings of the claimant at the time of injury calculated as provided in this section and sections six-d and fourteen of this article:
          (A) Eighty percent for the first year;
          (B) Seventy percent for the second year;
          (C) Sixty percent for the third year; and
          (D) Fifty percent for the fourth year: Provided, That in no event shall such benefits exceed one hundred percent of the average weekly wage in West Virginia. In no event shall such benefits be subject to the minimum benefit amounts required by the provisions of subdivision (b) of this section.
          (4) It is the intent of the Legislature that the amendments to this section enacted during the regular session of the Legislature in the year one thousand nine hundred ninety-nine which change criteria for an award of permanent total disability benefits be applied retroactively to all injuries incurred and all occupational diseases, including occupational pneumoconiosis, with a date of last exposure on and after the second day of February, one thousand nine hundred ninety-five, and for all requests for such an award pending before the division on and after the second day of February, one thousand nine hundred ninety-five: Provided, That any claimant whose application for permanent total disability benefits was rejected on or after the second day of February, one thousand nine hundred ninety-five, based on a finding that the claimant: (1) Was not awarded the sum of fifty percent in prior permanent partial disability awards; or (2) did not suffer an occupational injury or occupational disease which resulted in a finding that the claimant has suffered a medical impairment of fifty percent; or (3) did not suffer whole body medical impairment of at least fifty percent, then such claimant may, during the period beginning on the first day of July, one thousand nine hundred ninety-nine, and ending on the thirtieth day of September, one thousand nine hundred ninety-nine, file with the division a petition for reconsideration of the denial of permanent total disability benefits. After review of the petition by the division and the examining board, the division shall enter an appropriate order on the claimant's petition for reconsideration.
          (5) It is the intent of the Legislature that the amendments to this section enacted during the regular session of the Legislature in the year two thousand three which change criteria for an award of permanent total disability benefits be applied from the date of enactment to all injuries incurred on and after the date of enactment, all occupational diseases, including occupational pneumoconiosis, with a date of last exposure on and after the date of enactment, and for all claims filed before the date of enactment in which eligibility for permanent total disability has not been determined on or before the date of enactment. The Legislature finds that a deficit exists in the workers' compensation fund of such critical proportions that it constitutes an imminent threat to the immediate and long-term solvency of the fund, and that although provisions of this subdivision may appear to be inconsistent with the provisions of the decision of the West Virginia Supreme Court of Appeals in the case of State ex rel. Blankenship v. Richardson, the Legislature finds that an emergency exists as a result of the combined effect of this deficit, other state budgetary deficits and liabilities, and other grave social and economic circumstances currently confronting the state, and that unless the changes to the criteria for an award of permanent total disability benefits provided by the enactment of the amendments to this section, as well as other legislation designed to address the problem, enacted during the regular session of the Legislature in the year two thousand three are made effective immediately, the fiscal stability of this State will suffer irreparable harm. Accordingly, the Legislature finds that the need of the citizens of this state for the protection of the state treasury and the solvency of the workers' compensation fund requires the limitations on any expectations that may have arisen from the prior enactment of this section.
ARTICLE 4B. COAL-WORKERS' PNEUMOCONIOSIS FUND.
§23-4B-8b. Transfer of funds to workers' compensation fund.
          (a) Notwithstanding any provision of section eight of this article to the contrary, the assets which were previously transferred from the coal-workers' pneumoconiosis fund and held in a separate account may, on or after the first day of July, two thousand three, be expended for the satisfaction of obligation of the workers' compensation fund upon transfer in accordance with the provisions of this subsection. Prior to using the moneys, the commissioner shall obtain a certificate from the division's actuary that transferring the moneys from the separate account created under subsection (b), section eight of this article to the workers' compensation fund will not impair the ability of the coal-workers' pneumoconiosis fund to meet its claim obligations under Title IV of the federal Coal Mine Health and Safety Act of 1996, as amended.
          (b) If in any year expenditures from the workers' compensation fund exceed assets in that fund, the commissioner may under the following conditions request an appropriation of moneys from any actuarial surplus that may exist from the coal-workers' pneumoconiosis fund to the workers' compensation fund. Prior requesting an appropriation the commissioner shall obtain a certificate from the commission's actuary as to whether an actuarial surplus and adequate cash flow exists in the coal-workers' pneumoconiosis fund, and if so the amount of the surplus. The commissioner shall also obtain an opinion from the commission's actuary as to the amount of the deficit in the workers' compensation fund. The commissioner shall determine whether any portion of the actuarial surplus may be transferred and still maintain adequate reserves in the coal-workers' pneumoconiosis fund for claims or increased costs based on changes in the standards for obtaining benefits under Title IV of the federal Coal Mine Health and Safety Act of 1969, as amended.
          (c) Upon meeting the requirements of subsection (b) of this section, the commissioner shall submit a written request to the joint committee on government and finance that the Legislature appropriate an amount not to exceed one hundred million dollars from the coal workers' pneumoconiosis fund to the workers compensation fund. If the commissioner requests an appropriation from the coal workers' pneumoconiosis fund, the commissioner shall not increase benefit rates as provided in section fourteen, article four of this chapter and shall conduct an investigation into the causes of the deficit and determine the best course of action to alleviate the shortfall."
          The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
          On the passage of the bill, the yeas and nays were taken (Roll No. 617), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman.
         So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2120) passed.
          On motion of Delegate Staton, the title of the bill was amended to read as follows:
          Com. Sub. for H. B. 2120 - "A Bill to amend chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-a; to amend and reenact sections four, five and nine, article two of said chapter; to amend and reenact section one, article three of said chapter; to further amend said article by adding thereto a new section, designated section six; and to amend and reenact sections one-c, one-d and six, article four of said chapter; and to amend article four-b of said chapter by adding thereto an new section, designated section eight-b, all relating to providing security for the workers' compensation fund generally; providing for the workers' compensation deficit reduction act; requiring commissioner to obtain written professional opinion of qualified actuary that certifies rates of premium taxes or other assessments applicable to employers; prohibiting rates other than those certified; authorizing workers' compensation division to require employers to make reports and payments of premium taxes or other assessments at intervals other than quarterly; providing for the elimination of second injury awards and the second injury reserve fund for certain claims; providing for security or bond provided by employers; requiring payment of employer's deficit amortization assessment by certain employers; authorizing certain employers to insure its catastrophic risk through private insurance carrier; removing obsolete language; providing for a security risk pool; requiring the employers authorized to self-insure their obligations to administer their own claims; providing for certain audits; promulgation of rules by the commissioner; providing for emergency transfers to the workers compensation fund from the coal-workers' pneumoconiosis fund, from the West Virginia tobacco settlement trust fund, and from general revenue in certain circumstances upon legislative appropriation; expenditure of funds in coal-workers' pneumoconiosis special account; conditions for prohibiting increase in benefits upon certain annual calculations; removing requirement that division refund overpayments made by self-insured employers; authorizing the compensation programs performance council to approve future benefits from which overpayments may be recovered; reducing basis for computation of temporary total disability benefits for certain claims; increasing threshold measurement of medical impairment for eligibility for award of permanent total disability; applications for awards; effective date of enactment of amendments; conditions for expenditures and transfers of coal-workers' pneumoconiosis fund moneys."
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 618), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2120) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          At the request of Delegate Staton, and by unanimous consent, the House of Delegates proceeded to the Seventh Order of Business for the purpose of introducing and considering a resolution.
Resolutions Introduced
          Mr. Speaker, Mr. Kiss and all Members of the House of Delegates offered the following resolution, which was read by the Clerk, as follows:
          H. C. R. 100 - "Enrolling a Memorial to an extraordinary individual and public servant, Lewis N. McManus, former Speaker of the House of Delegates, exemplary public servant, outstanding citizen, gentleman and statesman."
          Whereas, Lewis N. McManus was born September 8, 1929, in Raleigh County, and was the son of the late Joab L. and Mattie Ferguson McManus, and died on Wednesday, December 18, 2002, at the age of seventy-three years.
          He received his education in the public schools of Raleigh County and attended Beckley College and Morris Harvey College, now the University of Charleston, where he received the Bachelor of Arts degree, graduating Magna Cum Laude.
          The political career of Lew McManus took hold when he was first elected to the House of Delegates in 1964, at a time when his Raleigh County friend and fellow Democrat Hulett Smith was Governor. He was reelected to the House in 1966, 1968, 1970, 1972 and 1974, and served as Chairman of the Committee on Finance in 1969, 1970 and 1971. When Speaker of the House Ivor Boiarsky died suddenly in 1971 on the frantic next-to-the-last day of the Session, members of the House looked to him to lead the House. His colleagues reelected him as Speaker for two more terms during his twelve years in the House.
          As Speaker of the House, Lew McManus often received the solicited as well as unsolicited - always stern but kind - advice, counsel and instruction in matters parliamentary from the long- time House Parliamentarian, Oshel Parsons, whom he revered and from whom he learned the importance of the rules and precedents of House. He was likewise an avid scholar of the budget process and the Constitution.
          In 1976, he declined to run for reelection, and friends urged him to run for the United States House of Representatives, which he also declined. He never ran for public office again.
          In private life, Lew McManus assumed the role of guest commentator on West Virginia Public Broadcasting's live show covering the last night of the legislative session, a twenty-four year long career which began in 1978 with the first gavel-to-gavel coverage being done in the State Senate.
          He also served assistant to the President of West Virginia University, President of the University of Charleston, where, as a young man he attended college, and Associate Vice President at Charles Ryan and Associates. In each endeavor, he performed with great ability, wisdom and zeal.
          Lewis McManus was a rare political figure who had the true unique ability to transcend politics in order to promote what he believed was in the best interests of the citizens of this State. While being a forceful and visionary leader in this State, he routinely practiced humility and compassion with all whose paths he crossed and firmly believed, in the context of the legislative process, that one should not burn bridges or be driven by hateful or vindictive thoughts, as his fundamental premise was that tomorrow we all have to work together again.
          Lew McManus leaves to all of us a legacy of statesmanhood and greatness of character that we should all seek to emulate, especially during those inevitable recurring conflicts which can sometimes inflame our passions, tempting us to obfuscate rather than to seek solutions to the problems we face; therefore, be it
          Resolved by the Legislature of West Virginia:
          That, while we formally mark the passing of a great leader of our State, a gentleman of the first magnitude, esteemed Speaker of the House and gentle friend, we also collectively celebrate in having been provided the example by this able and compassionate statesman and leader; and, be it
          Further Resolved, That this Seventy-Sixth Legislature of the State of West Virginia, in its Regular Session, 2003, hereby solemnly enrolls this memorial to an extraordinary individual and public servant, Lewis N. McManus, and hereby expresses the high esteem in which he was held by the Legislatures of West Virginia through the years; and, be it
          Further Resolved, That the Clerk of the House prepare certified copies of this resolution for the University of Charleston, West Virginia University, the West Virginia Public Broadcasting Corporation, Charles Ryan and Associates, and the Raleigh County Commission.
          At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. C. R. 100) to a committee was dispensed with, and it was taken up for immediate consideration.
          The question now being on the adoption of the resolution, the yeas and nays were demanded, which demand was sustained.
          The yeas and nays having been ordered, they were taken (Roll No. 619), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman.
        So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. C. R. 100) adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          At the request of Delegate Staton, and by unanimous consent, the House of Delegates proceeded to the Ninth Order of Business for the purpose of considering a resolution on Unfinished Business.
Unfinished Business
          On motion of Delegate Staton, the House of Delegates proceeded to further consideration of S. C. R. 35, Relating to pension fund bonds, having been reported in earlier proceedings and postponed until this time, was again reported by the Clerk.
          The question now being on the adoption of the resolution, the yeas and nays were demanded, which demand was sustained.
          The yeas and nays having been ordered, they were taken (Roll No. 620), and there were--yeas 80, nays 19, absent and not voting 1, with the nays and absent and not voting being as follows:
          Nays: Armstead, Ashley, Blair, Border, Calvert, Carmichael, Caruth, Duke, Ellem, Frich, Howard, Leggett, Louisos, Schoen, Sobonya, Spencer, Wakim, Walters and Webb.
          Absent And Not Voting: Coleman.
         So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (S. C. R. 35) adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
          On motion of Delegate Staton, the House of Delegates proceeded to further consideration of S. C. R. 52, Amending Joint Rule No. 5 relating to bill processing dates, having been reported in earlier proceedings and postponed until this time, which was again reported by the Clerk.
          The question now being on the adoption of the resolution, the yeas and nays were demanded, which demand was sustained.
          The yeas and nays having been ordered, they were taken (Roll No. 621), and there were--yeas 97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
          Nays: Louisos.
          Absent And Not Voting: Cann and Coleman.
         So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (S. C. R. 52) adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Messages from the Executive
          The Speaker laid before the House of Delegates a communication from His Excellency, the Governor, setting forth his disapproval of a bill heretofore passed by both houses, as follows:
State of West Virginia
OFFICE OF THE GOVERNOR
Charleston 25305
March 8, 2003
Veto Message
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305
Dear Speaker Kiss:
          Pursuant to Section Fourteen, Article Seven of the Constitution of West Virginia, I hereby disapprove and return to your office Enrolled House Bill No. 2122.
          House Bill 2122 provided for a substantial reformation of the law regarding to medical professional liability and insurance. While I strongly advocated for this reform, I must nevertheless object to this Bill for the following reasons:
          First, the title of the Bill is flawed because it erroneously refers to a credit against personal income tax, which is not contained in the Bill, and fails to refer to the credit against health care provider taxes, which is contained in the Bill.
          Secondly, §§33-3-14, 33-3-14a, 33-3-14d and 33-3-33 of the Bill divert certain net proceeds collected from the additional fire and casualty insurance premiums taxes, which are currently deposited into certain other funds, and provide for these diverted proceeds to be used to replenish those monies appropriated from the tobacco settlement medical trust fund account under §4011A- 2(c) of the Bill. While I recognize the need to replenish the tobacco settlement medical trust fund account, I object to the plan envisioned to effect that goal. I urge the Legislature to reconsider the plan and reenact a correct version.
          Finally, there is a typographical error in §33-20F-5(a)(2), the effect if which causes serious operational difficulties for the Physicians' Mutual Insurance Company created in Article 20F. Concisely stated, that section provides for the creation of a provisional board of directors to oversee the Physicians' Mutual Insurance Company commencing June 1, 2003. However, that board of directors should continue in existence until June 30, 2004, instead of 2003 as stated in the Bill.
          I wholeheartedly support the work of the Legislature on the serious reform contained in this Bill and urge that, at its earliest opportunity, the Legislature again take up this matter and return a corrected bill for approval.
                                        Very truly yours,
                                        Bob Wise,
                                         Governor.
          In accordance with Section 51, Article VI of the Constitution, the House of Delegates proceeded to reconsider Enrolled. Com. Sub. for H. B. 2122, Relating to medical professional liability generally, in an effort to meet the objections of the Governor.
          On motion of Delegate Staton, the bill was amended on page five by striking out the enacting section and inserting in lieu thereof, the following:
          "That section two, article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that chapter eleven of said code be amended by adding thereto a new article, designated article thirteen-t; that section five, article twelve, chapter twenty-nine of said code be amended and reenacted; that sections six and fourteen, article twelve-b of said chapter be amended and reenacted; that said chapter be further amended by adding thereto a new article, designated article twelve-c; that section fourteen, article three, chapter thirty of said code be amended and reenacted; that section twelve-a, article fourteen of said chapter be amended and reenacted; that article two, chapter thirty-three of said code be amended by adding thereto a new section, designated section nine-a; that sections fourteen and fourteen-a, article three of said chapter be amended and reenacted; that section fifteen-a, article four of said chapter be amended and reenacted; that sections two and three, article twenty-b of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section three-a; that sections two through eleven, inclusive, of article twenty-f of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section one-a; that section twenty-four, article twenty-five-a of said chapter be amended and reenacted; that section twenty-six, article twenty-five-d of said chapter be amended and reenacted; that section four, article ten, chapter thirty-eight of said code be amended and reenacted; that sections one, two, three, six, seven, eight, nine and ten, article seven-b, chapter fifty-five of said code be amended and reenacted; and that said article be further amended by adding thereto three new sections, designated sections nine-a, nine-b and nine-c, all to read as follows" followed by a colon.
          On page fifty-four, section fourteen, line twenty-five, following the words "Provided, That" by inserting the words "each year, the first one million six hundred sixty-seven thousand dollars of".
          On page fifty-six, section fourteen-a, line thirteen, following the words "Provided, That" by inserting the words "each year, the first eight hundred thirty-three thousand dollars of".
          On page fifty-six, section fourteen-d, by striking out section fourteen-d in its entirety from the bill.
          On page sixty, section thirty-three, by striking out section thirty-three in its entirety from the bill.
          On page seventy-seven, section four, line thirty-two, following the word "fourteen" by striking out the comma and inserting the word "and", and by striking out the words "fourteen-d and thirty-three".
          On page seventy-eight, section four, line forty-two, following the word "fourteen" by striking out the comma and inserting the word "and", and by striking out the words "fourteen-d and thirty-three".
          On page seventy-eight, section four, line fifty-four, following the word "fourteen" by striking out the comma and inserting the word "and", and by striking out the words "fourteen-d and thirty- three".
          On page seventy-eight, section four, lines sixty-eight and sixty-nine, following the word "fourteen" by striking out the comma and inserting the word "and", and by striking out the words "fourteen-d and thirty-three".
          On page seventy-nine, section five, line five, by striking out the word "three" and inserting in lieu thereof the word "four".
          And,
          On page one hundred-six, section six, line seventy-five, by striking out the word "service" and inserting in lieu thereof the word "mail".
          The Speaker propounded "Shall the bill now pass, as amended, in an effort to meet the objections of the Governor?"
          On this question, the yeas and nays were taken (Roll No. 622), and there were--yeas 95, nays 4, absent and not voting 1, with the yeas, nays and absent and not voting being as follows:
          Yeas: Mr. Speaker, Mr. Kiss and Delegates Amores, Anderson, Armstead, Ashley, Azinger, Beach, Beane, Blair, Boggs, Border, Brown, Browning, Calvert, Campbell, Cann, Canterbury, Caputo, Carmichael, Caruth, Craig, Crosier, DeLong, Doyle, Duke, Ellem, Ennis, Evans, Faircloth, Ferrell, Fleischauer, Foster, Fragale, Frederick, Frich, Hall, Hamilton, Hartman, Hatfield, Houston, Howard, Iaquinta, Kominar, Kuhn, Leach, Leggett, Long, Louisos, Mahan, Manchin, Manuel, Martin, Mezzatesta, Michael, Morgan, Overington, Palumbo, Paxton, Perdue, Perry, Pethtel, Pino, Poling, Proudfoot, Renner, Romine, Schadler, Schoen, Shaver, Shelton, Smirl, Sobonya, Stalnaker, Staton, Stemple, Sumner, Susman, Swartzmiller, Tabb, Talbott, R. M. Thompson, Trump, Tucker, Varner, Wakim, Walters, Warner, Webb, Webster, G. White, H. White, Williams, Wright, Yeager and Yost.
          Nays: Butcher, Hrutkay, Spencer and R. Thompson.
          Absent And Not Voting: Coleman.
          So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enrolled. Com. Sub. for H. B. 2122) passed, as a result of the objections of the Governor.
          On motion of Delegate Staton, the title of the bill was amended to read as follows:
          Enrolled. Com. Sub. for H. B. 2122 - "An Act to amend and reenact section two, article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend chapter eleven of said code by adding thereto a new article, designated article thirteen-t; to amend and reenact section five, article twelve, chapter twenty-nine of said code; to amend and reenact sections six and fourteen, article twelve-b of said chapter; to further amend said chapter by adding thereto a new article, designated article twelve-c; to amend and reenact section fourteen, article three, chapter thirty of said code; to amend and reenact section twelve-a, article fourteen of said chapter; to amend article two, chapter thirty-three of said code by adding thereto a new section, designated section nine-a; to amend and reenact sections fourteen and fourteen-a of article three of said chapter; to amend and reenact section fifteen-a, article four of said chapter; to amend and reenact sections two and three, article twenty-b of said chapter; to further amend said article by adding thereto a new section, designated section three-a; to amend and reenact sections two through eleven, inclusive, article twenty-f of said chapter; to further amend said article by adding thereto a new section, designated section one-a; to amend and reenact section twenty-four, article twenty-five-a of said chapter; to amend and reenact section twenty-six, article twenty-five-d of said chapter; to amend and reenact section four, article ten, chapter thirty-eight of said code; to amend and reenact sections one, two, three, six, seven, eight, nine and ten, article seven-b, chapter fifty-five of said code; and to further amend said article by adding thereto three new sections, designated sections nine-a, nine-b and nine-c, all relating to medical professional liability generally; transferring funds from board of risk and insurance management and from tobacco settlement medical trust fund; providing a health care provider tax credit for physicians based upon payment of certain medical malpractice liability insurance premiums paid; setting forth legislative findings and purpose; defining terms; creating tax credit and providing eligibility; establishing amount and time period for credit; allowing unused credit to carry forward; providing for the application of the credit; providing for the computation and application of credit; authorizing tax commissioner to promulgate legislative rules relating to the credit; establishing burden of proof relating to claiming the credit; allowing the board of risk and insurance management to include critical access hospitals as charitable or public service organizations eligible for receiving insurance coverage; authorizing the board of risk and insurance management to issue certain coverage to non-transferred health care providers; terminating authority of board of risk and insurance management to issue certain medical professional liability insurance upon transfer of assets to the physicians' mutual insurance company; creating board to study the feasibility of and propose a mechanism for funding the patient injury compensation fund; establishing term, authority and directives of the board; granting certain duties and conditionally authorizing the board of risk and insurance management to promulgate legislative and emergency rules; requiring the board of medicine and the board of osteopathy to take certain disciplinary actions against physicians in certain circumstances; providing for a limited diversion of premium taxes on certain insurance policies; providing a one-time assessment on all insurance carriers; prohibiting predatory rates and reduced rates designed to gain market share; requiring additional reporting requirements for insurance carriers providing medical malpractice coverage; providing for the creation of a physicians' mutual insurance company and the concomitant novation of certain board of risk and insurance management medical professional liability insurance programs; setting forth additional legislative findings and purpose; providing terms and conditions for transfer of specified assets and moneys to the physicians' mutual; defining terms; prohibiting company from taking certain actions; requiring certain premium taxes to be applied toward restoring West Virginia tobacco medical trust fund; returning premium taxes to originally allocated sources after moneys have been restored to the tobacco settlement medical trust fund; waiver of taxes under certain circumstances; providing for governance and organization of the company; specifying composition of company's board of directors; creating a special account to receive funds transferred from the tobacco settlement medical trust fund; imposing a one time assessment on certain licensed physicians for the privilege of practicing in West Virginia; exempting certain physicians from assessment; requiring competitive bidding in certain circumstances; exempting company from certain requirements imposed on other mutual insurance companies by the insurance commission; providing for additional reporting requirements and actuarial studies for the company; authorizing transfer of funds from special account and of certain assets, obligations and liabilities of the board of risk and insurance management to the company on a certain date and establishing other terms and conditions associated with the transfer; increasing exemption available to certain physician and surgeon debtors in bankruptcy proceedings; providing additional legislative findings and purposes relating to medical professional liability; defining terms; adding an element of proof in certain malpractice claims; altering notice requirements for malpractice claims; modifying the qualifications for experts who testify in medical professional liability actions; limiting liability for certain noneconomic losses; providing a reversion provision; creating conditional limitations and cap on certain damages; providing for limited severability; eliminating joint, but not several, liability among multiple defendants in medical professional liability actions; prohibiting consideration of certain third parties in malpractice cases; eliminating a cause of action based on ostensible agency in certain circumstances; allowing for reduction in damage awards for certain collateral source payments to plaintiffs; providing mechanism for determining collateral source payments and damages distribution; providing for calculation methodology for determining award payments; altering collection of economic damages upon implementation of patient compensation fund; barring actions against health care providers for certain third party claims; limiting civil liability for designated trauma center care; directing the office of emergency medical services to designate hospitals as trauma centers and provisional trauma centers; placing limitations on eligibility for trauma care caps; requiring the office of emergency medical services to develop a written protocol containing recognized and accepted standards for triage and emergency health procedures; authorizing the secretary of the department of health and human resources to promulgate legislative and emergency rules; and establishing effective date, applicable to all causes of action alleging medical professional liability."
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 623), and there were--yeas 95, nays 4, absent and not voting 1, with the nays and absent and not voting being as follows:
          Nays: Butcher, Hrutkay, Spencer and R. Thompson.
          Absent And Not Voting: Coleman.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Enrolled. Com. Sub. for H. B. 2122) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate
          A message from the Senate, by
          The Clerk of the Senate, announced concurrence in the amendments of the House of Delegates and the passage, as amended, to take effect from passage, of
          Com. Sub. for S. B. 583, Creating coal resource transportation road system.
          At 9:30 p.m., on motion of Delegate Staton, the House of Delegates recessed until 9:45 p.m., and reconvened at that time.
Messages from the Executive
          The Speaker laid before the House of Delegates a communication from His Excellency, the Governor, as follows:
State of West Virginia
OFFICE OF THE GOVERNOR
Charleston 25305
March 7, 2003
Executive Message No. 4
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Mr. Speaker:
          Pursuant to the provisions of §5-1-20 of the Code of West Virginia, I hereby certify that the following 2001-2002 annual reports have been received in the Office of the Governor:
          1. Accountancy, West Virginia Board of;
          2. Aeronautics Commission, West Virginia;
          3. Affordable Housing Trust Fund, The West Virginia;
          4. Alcohol Beverage Control Administration, West Virginia;
          5. Architects, West Virginia State Board of;
          6. Banking, West Virginia Division of;
          7. Barbers and Cosmetologists, Board of, West Virginia Department of Health and Human Resources;
          8. Behavioral Health, Office of the Ombudsman for;
          9. Cancer Registry, West Virginia;
          10. Charleston Housing;
          11. Charleston Renaissance Corporation;
          12. Chemical Studies, National Institute for;
          13. Children and Families, Governor's Cabinet on;
          14. Chiropractic, West Virginia Board of;
          15. Coal Heritage Highway Authority;
          16. Coal Mine Health and Safety, West Virginia Board of, and Coal Mine Safety and Technical Review Committee;
          17. College Prepaid Tuition Trust Fund, West Virginia;
          18. Commodities and Services from the Handicapped, Committee for the Purchase of;
          19. Community and Economic Development, West Virginia Council for;
          20. Consumer Advocate Division, West Virginia Public Service Commission;
          21. Consumer Protection and Antitrust Divisions, Activities of, West Virginia Attorney General's Report on;
          22. Corrections, West Virginia Division of;
          23. Counseling, West Virginia Board of Examiners in;
          24. Counties, West Virginia Association of;
          25. Court of Claims, West Virginia;
          26. Crime Victims Compensation Fund, West Virginia Court of Claims;
          27. Deaf and Hard-of-Hearing, West Virginia Commission for the;
          28. Dental Examiners, West Virginia Board of;
          29. Dieticians, West Virginia Board of Licensed;
          30. Eastern West Virginia Community Foundation;
          31. Education and State Employees Grievance Board, West Virginia;
          32. Employment Programs, West Virginia Bureau of;
          33. Environmental Protection, West Virginia Department of;
          34. Equal Employment Opportunity Office, West Virginia;
          35. Family Support Program, West Virginia Department of Health and Human Resources;
          36. Foresters, West Virginia Board of Registration of;
          37. Forestry, West Virginia Division of;
          38. Funeral Service Examiners, West Virginia Board of;
          39. Grievance Board, West Virginia Education and State Employees;
          40. Health Care Authority, West Virginia;
          41. Holocaust Education, West Virginia Commission on;
          42. Housing Development Fund, West Virginia;
          43. Human Rights Commission, West Virginia;
          44. Insurance Commissioner, Office of, State of West Virginia;
          45. Investment Management Board, West Virginia;
          46. Juvenile Services, West Virginia Division of;
          47. Labor, West Virginia Division of;
          48. Land Surveyors, West Virginia State Board of Examiners of;
          49. Library Commission, West Virginia;
          50. Licensed Practical Nurses, West Virginia State Board of;
          51. Logging Sediment Control Act, West Virginia Division of Forestry;
          52. Long-Term Care Nursing Program, Office of Health Facility Licensure and Certification, West Virginia Department of Health and Human Resources;
          53. Lottery Commission, West Virginia;
          54. Marshall University, Student Union Account;
          55. Medicine, West Virginia Board of (Volumes I and II);
          56. Message Therapy Licensure Board, West Virginia;
          57. Metropolitan Planning Commission, Brooke-Hancock-Jefferson;
          58. Motor Vehicles, West Virginia Division of;
          59. National and Community Service, West Virginia Commission for;
          60. National Guard, West Virginia;
          61. Natural Resources, West Virginia Division of;
          62. Neighborhood Investment Program, West Virginia Development Office;
          63. Nursing Home Administrators Licensing Board, West Virginia;
          64. Nursing Shortage Study Commission, West Virginia;
          65. Occupational Therapy, West Virginia Board of;
          66. Oil and Gas Inspector's Examining Board, West Virginia Department of Environmental Protection;
          67. Optometry, West Virginia Board of;
          68. Osteopathy, West Virginia Board of;
          69. Parole Board, West Virginia;
          70. Personnel, West Virginia Division of;
          71. Physical Therapy, West Virginia Board of;
          72. Planning and Development Council, Region IV;
          73. Planning and Development Council, Region VII;
          74. Poison Center, West Virginia;
          75. Professional Engineers of West Virginia, State Board of Registration for;
          76. Psychologists, West Virginia Board of Examiners of;
          77. Public Defender Services, West Virginia;
          78. Public Service Commission, West Virginia;
          79. Radiologic Technology, West Virginia Board of Examiners;
          80. Real Estate Appraiser Licensing and Certification Board, West Virginia;
          81. Real Estate Commission, West Virginia;
          82. Registered Professional Nurses, West Virginia Board of Examiners for;
          83. Risk and Insurance Management, West Virginia Board of, and Comprehensive Annual Financial Report;
          84. Sanitarians, West Virginia Board of Registration for;
          85. Senior Services, West Virginia Bureau of;
          86. Social Work Examiners, West Virginia Board of;
          87. Speech-Language Pathology and Audiology, West Virginia Board of Examiners for;
          88. State Police, West Virginia;
          89. State Rehabilitation Council, West Virginia;
          90. Steel Advisory Commission, West Virginia;
          91. Technology, Governor's Office of;
          92. Time Standards Compliance, West Virginia Workers' Compensation Office of Judges;
          93. Tourism Commission, West Virginia Division of;
          94. Transportation Study, Brooke-Hancock-Jefferson;
          95. Traumatic Brain and Spinal Cord Injury Rehabilitation Fund, West Virginia Board of;
          96. Veterans' Affairs, West Virginia Division of;
          97. Veterinary Medicine, West Virginia Board of;
          98. Water Development Authority, West Virginia;
          99. West Virginia University, School of Physical Education;
          100. West Virginia University, Student Union Account;
          101. Wheeling Housing Authority;
          102. Women's Commission, West Virginia;
          103. Workforce Investment Office, Governor's;
          Please advise my office if you should need copies of any of the above-listed reports.
                          Very truly yours,
                           Bob Wise,
                           Governor.
          Mr. Speaker, Mr. Kiss, laid before the House the following communication from His Excellency, the Governor, submitting the following annual probation and parole report, which was received:
State of West Virginia
OFFICE OF THE GOVERNOR
Charleston 25305
March 7, 2003
Executive Message No. 5
The Honorable Robert S. Kiss, Speaker
West Virginia House of Delegates
State Capitol
Charleston, West Virginia
Dear Mr. Speaker:
          As empowered by Section 11, Article VII of the Constitution of the State of West Virginia and Section 16, Article 1, Chapter 5 of the Code of West Virginia, I extended relief to the persons named on the attached report. I submit this report in accordance with the above-cited provisions, for the period March 1, 2002, through March 1, 2003.
                                Very truly yours,
                           Bob Wise,
                                 Governor.
PARDONS AND MEDICAL RESPITES GRANTED
BY GOVERNOR WISE
FOR THE PERIOD
MARCH 1, 2002 - MARCH 1, 2003
Leo Lester Belcher, Jr.
Decided: March 13, 2002
          In 1968, Mr. Belcher entered a plea of guilty to one felony count of breaking and entering. On January 9, 1968, the Fayette County Circuit Court sentenced him to one-to-ten years' imprisonment, which sentence was suspended for three years' probation. Mr. Belcher successfully completed his probationary period. Since that time, Mr. Belcher has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Leo Lester Belcher, Jr., for the offense of breaking and entering.
George Michael Hall
Decided: March 13, 2002
          In 1965, Mr. Hall entered a plea of guilty to one felony count of breaking and entering. On October 20, 1965, the Kanawha County Circuit Court sentenced Mr. Hall to a three-year term of probation. On October 20, 1966, after successful completion of one year, the probationary period was discharged. Since that time, Mr. Hall has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to George Michael Hall for the offense of breaking and entering.
James Harry McClure
Decided: March 13, 2002
          In 1958, Mr. McClure entered a plea of guilty to one felony count of breaking and entering. On October 4, 1958, the Logan County Circuit Court sentenced Mr. McClure to a three-year term of probation. Mr. McClure successfully completed the probationary period. Since that time, Mr. McClure has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to James Harry McClure for the offense of breaking and entering.
          Roy Edward Roton, Sr.
Decided: March 13, 2002
          In 1984, Mr. Roton entered a plea of guilty to one felony count of grand larceny. On October 18, 1984, the Roane County Circuit Court sentenced Mr. Roton to one-to-ten years' imprisonment, which sentence was suspended for a three-year term of probation. Mr. Roton successfully completed the probationary period. Since that time, Mr. Roton has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise grated a full, unconditional and complete pardon to Roy Edward Roton, Sr., for the offense of grand larceny.
Adrienne Melba
Granted: April 1, 2002
Extended: July 30, 2002
Extended: January 30, 2003
          Ms. Melba was diagnosed with end-stage liver disease while serving a five-year sentence for aggravated robbery and a 30-year sentence for wanton endangerment. Health care providers and the Division of Corrections agreed that Ms. Melba's disease is life-threatening and that she is a candidate for a liver transplant. The Division of Corrections does not have the resources to provide the necessary medical procedure/treatment and personal financial arrangements were available for these costs.
          For these reasons, on April 1, 2002, Governor Wise granted Ms. Melba a reprieve in the form of the suspension of her sentence of imprisonment for a period of one hundred twenty days; on July 30, 2002, Governor Wise again extended the reprieve for a period of one hundred eighty days; and on January 14, 2003, Governor Wise again extended the reprieve for a period of one hundred eighty days.
Danny Bradford Marion
Decided: April 10, 2002
          In 1964, Mr Marion entered a plea of guilty to one felony count of accessory to breaking and entering. On April 9, 1964, the Kanawha County Circuit Court suspended his sentence to a three- year probationary term. After successful completion of one year of the probationary term, the probationary period was discharged. Since that time, Mr. Marion has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Danny Bradford Marion for the offense of accessory to breaking and entering.
John Alvin Parker
Decided: September 3, 2002
          In 1978, Mr. Parker entered a plea of guilty to one count of
entering without breaking. On September 28, 1978, the Fayette County Circuit Court sentenced Mr. Parker to a three-year probationary term. Mr. Parker successfully completed his probationary period. Since that time, Mr. Parker has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise grated a full, unconditional and complete pardon to John Alvin Parker for the offense of entering without breaking.
Charles E. Pettry, Jr.
Decided: October 25, 2002

          In 1993, Mr. Pettry entered pleas of guilty to two counts of forgery. On December 23, 1993, the Kanawha County Circuit Court sentenced Mr. Pettry to a two-year probationary term. On December 23, 1955, Mr. Pettry successfully completed the probationary period. Since that time, Mr Pettry has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Charles E. Pettry, Jr., for the offenses of forgery.
Jeffrey Alan Eavenson
Decided: December 9, 2002
          In 1988, Mr. Eavenson entered a plea of guilty to one count of entering without breaking. On April 11, 1988, the Monongalia County Circuit Court sentenced Mr. Eavenson to one-to-ten years' imprisonment, which was suspended to one year of probation. Mr. Eavenson successfully completed the probationary period. Since that time, Mr. Eavenson has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Jeffrey Alan Eavenson for the offense of entering without breaking.
Larry Mack Davenport
Decided: January 13, 2003
          In 1985, Mr. Davenport entered a plea of guilty to one count of welfare fraud. On December 9, 1985, the Kanawha County Circuit Court sentenced Mr. Davenport to a five-year term of probation. Mr. Davenport successfully completed the probationary period and has made full restitution. Since that time, Mr. Davenport has maintained himself as a responsible, law- abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Larry Mack Davenport for the offense of welfare fraud.
Ronald H. Rebrook
Decided: January 13, 2003
          In 1959, Mr. Rebrook entered a plea of guilty to one count of breaking and entering. On June 6, 1959, the Harrison County Circuit Court sentenced Mr. Rebrook to a two-year term of probation. Mr. Rebrook successfully completed the probationary period. Since that time, Mr. Rebrook has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Ronald H. Rebrook for the offense of breaking and entering.
Thomas M. Estep
Decided: January 31, 2003

          In 1983, Mr. Estep entered a plea of guilty to one count of unarmed robbery. On March 4, 1983, the Wetzel County Circuit Court sentenced Mr. Estep to a five-year term of probation. Mr. Estep successfully completed the probationary period. Since that time, Mr. Estep has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Thomas M. Estep for the offense of unarmed robbery.
Terry Lilly
Granted: February 14, 2003
          Mr. Lilly was diagnosed with acute myelogenous leukemia while serving a six-year sentence for first-degree arson, a five-year sentence for wanton endangerment and a one-year sentence for destruction of property. Health care providers and the Division of Corrections agreed that Mr. Lilly's disease is life-threatening and that he was in a debilitated state due to the progression of the disease. Private financial arrangements were made to cover the costs of necessary medications and specialized medical treatment for Mr. Lilly.
          For these reasons, on February 14, 2003, Governor Wise granted Mr. Lilly a reprieve in the form of the suspension of his sentence for a period of thirty days. On February 28, 2003, while on reprieve, Mr. Lilly died.
Edward Burgess
Decided: February 20, 2003
          In 1976, Mr. Burgess entered a plea of guilty to one count of grand larceny. On July 14, 1976, the Raleigh County Circuit Court sentenced Mr. Burgess to one-to-ten years' imprisonment, which sentence was suspended to a two-year term of probation. Mr. Burgess successfully completed the probationary period. Since that time, Mr. Burgess has maintained himself as a responsible, law- abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Edward Burgess for the offense of grand larceny.
          Jason Newt Yauger
Decided: February 20, 2003
          In 1999, Mr. Yauger entered a plea of guilty to one count of underage consumption. On February 8, 1999, the Marion County Circuit Court sentenced Mr. Yauger to a one-year term of unsupervised probation. Mr. Yauger has maintained himself as a responsible, law-abiding citizen leading a productive and contributing lifestyle.
          For these reasons, Governor Wise granted a full, unconditional and complete pardon to Jason Newt Yauger for the offense of underage consumption.
          At the request of Delegate Staton, and by unanimous consent, the House of Delegates proceeded to the Ninth Order of Business for the purpose of considering resolutions on Unfinished Business.
Unfinished Business
          S. C. R. 11, Requesting Division of Highways name bridge on Route 5 near Elizabeth "World War II Veterans Memorial Bridge"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
          S. C. R. 12, Requesting Joint Committee on Government and Finance study bail bondsmen; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
          S. C. R. 20, Requesting Joint Committee on Government and Finance study impact on tax base of local governments when private lands are converted to parks or forests; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
          Com. Sub. for H. C. R. 34, Requesting a study of adding wheelchair accessible ramps and covered walkways to the wings of the state capitol; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          S. C. R. 45, Urging Congress to provide additional funding from Abandoned Mine Reclamation Fund to finance future water projects; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
          S. C. R. 46, Requesting Joint Committee on Government and Finance appoint interim committee to study mining regulatory program; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
          H. C. R. 60, Requesting a study on the feasibility of providing retirement programs for various state agencies; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 64, Requesting a study on the feasibility of developing and maintaining a central abuse registry; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 65, Requesting a study on the state's vital statistics system; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 80, Requesting a study on the use, benefits and management of technology as it impacts the Legislature; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 84, Calling upon the United States government to provide funding assistance for the unfunded mandates it places upon the states; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 85, Requesting a study on the changing role of school counseling and the potential impact of counselors on students in the public schools of the state; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 87, Name the proposed replacement bridge on 12 Pole Road at Breeden, Mingo County, West Virginia, the "Woodrow Baisden Bridge"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 88, Examining how the Legislature might operate more efficiently and effectively through the use of computers and communication technology; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 90, Naming the portion of U.S. 52 from Taylorville Bridge to the intersection of State Route 44 in Mingo County the "R. A. West Memorial Highway"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 93, Studying the feasibility of establishing a statewide trail coordinator to promote tourism and economic development; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. C. R. 95, Studying the annexation laws of the state of West Virginia and of the various states to develop responsible and fair annexation alternatives; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          Com. Sub. for H. C. R. 98, Requesting a study to determine the means of best facilitating the creation of a new Water Quality Board; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          The House then proceeded to further consideration of S. B. 661, S. B. 662, H. B. 3213, H. B. 3214, H. B. 3215, H. B. 3216, H. B. 3217 and H. B. 3218, all having been read a second time in earlier proceedings.
          S. B. 661, Making supplementary appropriation of federal funds to department of health and human resources, division of health, maternal and child health; on third reading, coming up for consideration at this time, was then reported by the Clerk:
          Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
          On this question, the yeas and nays were taken (Roll No. 624), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
          The bill was then read a third time.
          On the passage of the bill, the yeas and nays were taken (Roll No. 625), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 661) passed.
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 626), and there were-yeas 98, nays none, with absent and not voting being as follows:
          Absent and Not Voting: Coleman and Mezzatesta
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 661) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
          S. B. 662, Expiring funds to unappropriated surplus balance in general revenue and appropriating to tax division; on third reading, coming up for consideration at this time, was next reported by the Clerk:
          Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
          On this question, the yeas and nays were taken (Roll No. 627), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
          The bill was then read a third time.
          On the passage of the bill, the yeas and nays were taken (Roll No. 628), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 662) passed.
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 629), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 662) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
          H. B. 3213, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on third reading, coming up for consideration at this time, was next reported by the Clerk:
          Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
          On this question, the yeas and nays were taken (Roll No. 630), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
          The bill was then read a third time.
          On the passage of the bill, the yeas and nays were taken (Roll No. 631), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3213) passed.
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 632), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3213) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. B. 3214, Expiring funds to the secretary of state - state election fund; on third reading, coming up for consideration at this time, was next reported by the Clerk:
          Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
          On this question, the yeas and nays were taken (Roll No. 633), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
          The bill was then read a third time.
          On the passage of the bill, the yeas and nays were taken (Roll No. 634), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3214) passed.
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 635), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
          Absent And Not Voting: Calvert, Coleman and Mezzatesta.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3214) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. B. 3215, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on third reading, coming up for consideration at this time, was next reported by the Clerk:
          Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
          On this question, the yeas and nays were taken (Roll No. 636), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
          Absent And Not Voting: Calvert, Coleman and Mezzatesta.
          So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
          The bill was then read a third time.
          On the passage of the bill, the yeas and nays were taken (Roll No. 637), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
          Absent And Not Voting: Beach, Coleman, Mezzatesta and Varner.
          So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3215) passed.
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 638), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3215) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. B. 3216, Supplementing, amending, reducing and increasing items of the existing appropriations from the state fund, general revenue, to the secretary of state; on third reading, coming up for consideration at this time, was next reported by the Clerk:
          Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
          On this question, the yeas and nays were taken (Roll No. 639), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
          The bill was then read a third time.
          On the passage of the bill, the yeas and nays were taken (Roll No. 640), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
          Absent And Not Voting: Caputo, Coleman and Mezzatesta.
         So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3216) passed.
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 641), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3216) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. B. 3217, Establishing a fund and making a supplementary appropriation of federal funds out of the treasury from the balance of federal moneys remaining unappropriated; on third reading, coming up for consideration at this time, was next reported by the Clerk:
          Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
          On this question, the yeas and nays were taken (Roll No. 642), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
          The bill was then read a third time.
          On the passage of the bill, the yeas and nays were taken (Roll No. 643), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman, Mezzatesta and Susman.
         So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3217) passed.
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 644), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman, Fleischauer and Mezzatesta.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3217) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          H. B. 3218, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on third reading, coming up for consideration at this time, was next reported by the Clerk:
          Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
          On this question, the yeas and nays were taken (Roll No. 645), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
          The bill was then read a third time.
          On the passage of the bill, the yeas and nays were taken (Roll No. 646), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
          Absent And Not Voting: Coleman and Mezzatesta.
          So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3218) passed.
          Delegate Staton moved that the bill take effect from its passage.
          On this question, the yeas and nays were taken (Roll No. 647), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
          Absent And Not Voting: Calvert, Coleman and Mezzatesta.
          So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3218) takes effect from its passage.
          Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
          Delegate Calvert requested that the Clerk record her as voting "Yea" on Roll Nos. 635, 636 and 647.
Messages from the Senate
          A message from the Senate, by
          The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, bills of the House of Delegates as follows:
          H. B. 3204, Expiring funds from the insurance commissioner - insurance commission fund,
          H. B. 3205, Expiring funds from the public service commission,
          H. B. 3206, Supplemental appropriation to the department of tax and revenue - tax division,
          H. B. 3207, Supplemental appropriation to the department of military affairs and public safety - division of juvenile services,
          H. B. 3208, Supplemental appropriation to the department of military affairs and public safety - division of corrections - correctional units,
          H. B. 3209, Supplemental appropriation to the department of military affairs and public safety - West Virginia parole board,
          And,
          H. B. 3210, Supplemental appropriation to the department of military affairs and public safety - division of protective services.
          A message from the Senate, by
          The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution:
          S. C. R. 61 - "Authorizing the issuance of revenue bonds to provide new capital improvements consisting of facilities, buildings and structures for state institutions of higher education."
          Whereas, The West Virginia Higher Education Policy Commission is a governmental instrumentality of the State of West Virginia empowered and authorized to issue bonds by section eight, article ten, chapter eighteen-b of the code of West Virginia and section one, article twelve-b, chapter eighteen of the code; and
          Whereas, Section eighteen-a, article twenty-two, chapter twenty-nine of the code provides for the allocation and appropriation of net profits of state lottery funds; and
          Whereas, In accordance with the provisions of section eighteen-a, article twenty-two, chapter twenty-nine of the code, a special revenue fund within the state lottery fund in the state treasury was established and known as the "State Excess Lottery Revenue Fund". This fund provides for ten million dollars to be deposited within the state lottery fund to a sub-account to be known as the "Higher Education Improvement Fund for Higher Education"; and
          Whereas, In accordance with the provisions of section eighteen-a, article twenty-two, chapter twenty-nine of the code, the adoption of a concurrent resolution by the Legislature will authorize the issuance of bonds and payment of debt service on the bonds from the Higher Education Improvement Fund. The bonds will be issued by the Higher Education Policy Commission, payable from proceeds from the Higher Education Improvement Fund within the state excess lottery revenue fund and from revenues pledged from a combination of tuition and registration fees. The lottery director shall deposit into the state excess lottery revenue fund, created pursuant to section eighteen- a, article twenty-two, chapter twenty-nine of the code, the sum of ten million dollars in each fiscal year to be used to pay debt service on the revenue bonds issued by the Commission to finance improvements for state institutions of higher education. The revenues pledged for the repayment of principal and interest of these bonds shall include tuition and registration fees authorized by sections one and eight, article ten, chapter eighteen-b of the code and section one, article twelve-b, chapter eighteen of the code; and
          Whereas, Except as may otherwise be expressly provided by the Commission, every issue of its bonds shall be special obligations of the Commission, payable solely from the tuition and registration fees or other sources available to the Commission which were pledged therefor; and
          Whereas, The bonds shall be authorized by resolution of the Commission and shall bear such rate or rates of interest as the resolution may provide; therefore, be it
          Resolved by the Legislature of West Virginia:
          That the Legislature hereby authorizes the issuance of revenue bonds by the Higher Education Policy Commission to provide new capital improvements consisting of facilities, buildings and structures for state institutions of higher education; and, be it
          Further Resolved, That, except as may otherwise be provided by the Commission, every issue of its bonds shall be special obligations of the Commission, payable solely from the tuition and registration fees or other sources available to the Commission which were pledged therefor, including the higher education improvement fund; and, be it
          Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Governor and the Commission.
          A message from the Senate, by
          The Clerk of the Senate, announced concurrence in the amendments of the House of Delegates and the passage, as amended, of
          S. B. 95, Increasing length and width for certain vehicles,
          Com. Sub. for S. B. 178, Relating to subject matter jurisdiction in family courts,
          S. B. 357, Relating to standard nonforfeiture law for individual deferred annuities,
          Com. Sub. for S. B. 422, Allowing public service commission to change certain rates for municipalities or cooperative utilities,
          Com. Sub. for S. B. 437, Requiring joint committee on government and finance approve certain acquisitions, construction and long-term agreements,
          Com. Sub. for S. B. 440, Establishing Contractors Notice and Opportunity to Cure Act,
          S. B. 485, Authorizing insurance commissioner to enter into certain agreements and compromises,
          Com. Sub. for S. B. 494, Regulating fees between cemeteries, certain companies and veterans for setting grave markers,
          Com. Sub. for S. B. 522, Authorizing county boards of education to lease school property no longer needed,
          S. B. 531, Exempting certain lodging franchise assessed fees from consumers sales and service tax,
          Com. Sub. for S. B. 534, Creating Third-Party Administrator Act,
          Com. Sub. for S. B. 611, Defining podiatric medical assistants; other provisions,
          S. B. 636, Exempting competitive bidding requirement for commodities and services by nonprofit workshops,
          S. B. 654, Extending supervision for certain sex offenders,
          And,
          S. B. 655, Creating public utilities tax loss restoration fund.
          A message from the Senate, by
          The Clerk of the Senate, announced concurrence in the amendments of the House of Delegates, with amendment, and the passage, as amended, of
          Com. Sub. for S. B. 522, Authorizing county boards of education to lease certain school property; eligibility of members.
          On motion of Delegate Staton, the bill was taken up for immediate consideration.
          The following Senate amendments were reported by the Clerk:
          On page one, following the enacting section, by inserting the following:
"ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR EDUCATION.
§18-1-1. Definitions.
          The following words used in this chapter and in any proceedings pursuant thereto shall, unless the context clearly indicates a different meaning, be construed as follows:
          (a) 'School' means the pupils and teacher or teachers assembled in one or more buildings, organized as a unit;
          (b) 'District' means county school district;
          (c) 'State board' means the West Virginia board of education;
          (d) ~~'Board'~~ 'County board' or 'board' means the county board of education;
          (e) 'State superintendent' means the state superintendent of free schools;
          (f) ~~'Superintendent'~~ 'County superintendent' or 'superintendent' means the county superintendent of schools;
          (g) 'Teacher' means teacher, supervisor, principal, superintendent or public school librarian; registered professional nurse, licensed by the West Virginia board of examiners for registered professional nurses and employed by a county board of education, who has a baccalaureate degree; or any other person regularly employed for instructional purposes in a public school in this state;
          (h) 'Service personnel' means all nonteaching school employees not included in the above definition of 'teacher';
          (i) 'Social worker' means a nonteaching school employee who, at a minimum, possesses an undergraduate degree in social work from an accredited institution of higher learning and who provides various professional social work services, activities or methods as defined by the state board for the benefit of students;
          (j) 'Regular full-time employee' means any person employed by a county board of education who has a regular position or job throughout his or her employment term, without regard to hours or method of pay;
          (k) 'Career clusters' means broad groupings of related occupations;
          (l) 'Work-based learning' means a structured activity that correlates with and is mutually supportive of the school-based learning of the student and includes specific objectives to be learned by the student as a result of the activity;
          (m) 'School-age juvenile' means any individual who is entitled to attend or who, if not placed in a residential facility, would be entitled to attend public schools in accordance with: (1) Section five, article two of this chapter; (2) sections fifteen and eighteen, article five of this chapter; or (3) section one, article twenty of this chapter;
          (n) 'Student with a disability' means an exceptional child, other than gifted, pursuant to section one, article twenty of this chapter;
          (o) 'Low density county' means a county whose ratio of student population to square miles is less than or equal to the state average ratio as computed by the state department of education;
          (p) 'High density county' means a county whose ratio of student population to square miles is greater than the state average ratio as computed by the state department of education; and
          (q) 'Casual deficit' means a deficit of not more than three percent of the approved levy estimate or a deficit that is nonrecurring from year to year.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-4. Organization; appointment, compensation and duties of secretary.
          At its first regular meeting in every year the state board shall elect one of its members as president, who ~~shall not succeed himself as president~~ may serve an unlimited number of terms, but no more than two consecutive terms, and one as vice president of the board. The state superintendent shall be the chief executive officer of the state board and, subject to its direction, shall execute its policies.
          The state board shall appoint a secretary and fix ~~his~~ the secretary's salary to be paid out of the general school fund upon warrants drawn by the state superintendent. The secretary shall keep a record of the proceedings of the state board and shall perform such other duties as it may prescribe.
§18-2-5g. Duty to receive and submit summary of policy modifications and annual reports.
          In addition to filing each policy as required by section fourteen, article five of this chapter, the state board shall require each county board to provide a summary of any modifications to the policies and copies of annual reports developed pursuant to section fourteen, article five of this chapter. The state board shall submit copies of these summaries of modifications to the policies and annual reports, together with any comments and recommendations, to the legislative oversight commission on education accountability, no later than the thirty-first day of December of each year.
ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.

§18-2E-7. Providing for high quality basic skills development and remediation in all public schools.

  (a) The Legislature finds that teachers must be provided the support, assistance and teaching tools necessary to meet individual student instructional needs on a daily basis in a classroom of students who differ in learning styles, learning rates and in motivation to learn. The Legislature further finds that attaining a solid foundation in the basic skills of reading, composition and arithmetic is essential for advancement in higher education, occupational and avocational pursuits and that computers are an effective tool for the teacher in corrective, remedial and enrichment activities. Therefore, the state board shall develop a plan which specifies the resources to be used to provide services to students in the earliest grade level and moving upward as resources become available based on a plan developed by each individual school team.
  This plan must provide for standardization of computer hardware and software, and for technology upgrade and replacement, for the purposes of achieving economies of scale, facilitating teacher training, permitting the comparison of achievement of students in schools and counties utilizing the hardware and software, and facilitating the repair of equipment and ensuring appropriate utilization of the hardware and software purchased for remediation and basic skills development.
  The state board shall determine the computer hardware and software specifications after input from practicing teachers at the appropriate grade levels and with the assistance of education computer experts and the curriculum technology resource center.
  Computer hardware and software shall be purchased either directly or through a lease- purchase arrangement pursuant to the provisions of article three, chapter five-a of this code in the amount equal to anticipated revenues being appropriated: Provided, That, with the approval of the state board, the revenues appropriated may be expended directly or through contractual agreements with county boards and regional education service agencies for materials and other costs associated with installation, set-up, internet hook-up and wiring of the computer hardware and software: Provided, however, That nothing in this section shall be construed to require any specific level of funding by the Legislature.
  The state board shall develop and provide through the state curriculum technology resource center a program to ensure adequate teacher training, continuous teacher support and updates.
  To the extent practicable, such technology shall be utilized to enhance student access to learning tools and resources outside of the normal school day, such as: Before and after school; in the evenings, on weekends and during vacations; and for student use for homework, remedial work, independent learning and career planning and adult basic education.
  (b) The Legislature finds that the continued implementation of computer utilization under this section for high quality basic skills development and remediation in the middle schools, junior high schools and high schools is necessary to meet the goal that high school graduates will be prepared fully for college, other post-secondary education or gainful employment. Further, such implementation should provide a technology infrastructure at the middle schools, junior high schools and high schools that has multiple applications in enabling students to achieve at higher academic levels. The technology infrastructure should facilitate student development in the following areas:
  (1) Attaining basic computer skills such as word processing, spreadsheets, data bases, internet usage, telecommunications and graphic presentations;
  (2) Learning critical thinking and decision-making skills;
  (3) Applying academic knowledge in real life situations through simulated workplace programs;
  (4) Understanding the modern workplace environment, particularly in remote areas of the state, by bringing the workplace to the school;
  (5) Making informed career decisions based upon information on labor markets and the skills required for success in various occupations;
  (6) Gaining access to labor markets and job placement;
  (7) Obtaining information and assistance about college and other post-secondary education opportunities and financial aid; and
  (8) Other uses for acquiring the necessary skills and information to make a smooth transition from high school to college, other post-secondary education or gainful employment.
  Therefore, the state board shall extend the plan as set forth in subsection (a) of this section, and consistent with the terms and conditions in said subsection, to address the findings of this subsection regarding the continued implementation of computer hardware and software, and technical planning support in the middle schools, junior high schools and high schools of the state.
ARTICLE 3. STATE SUPERINTENDENT OF SCHOOLS.

§18-3-1. Appointment; qualifications; compensation; traveling expenses; office and residence; evaluation.

There shall be appointed by the state board a state superintendent of schools who shall serve at the will and pleasure of the state board. He or she shall be a person of good moral character, of recognized ability as a school administrator, holding at least a master's degree in educational administration, and shall have had not less than five years of experience in public school work. He or she shall receive an annual salary set by the state board, to be paid monthly: Provided, That the annual salary may not exceed one hundred forty-six thousand one hundred dollars The state superintendent ~~shall~~ also shall receive necessary traveling expenses incident to the performance of his or her duties ~~the traveling expenses~~ to be paid out of the general school fund upon warrants of the state auditor. The state superintendent shall have his or her office at the state ~~capital~~ capitol. The state board shall report to the legislative oversight commission on education accountability upon request concerning its progress during any hiring process for a state superintendent.
The state board annually shall evaluate the performance of the state superintendent and publicly announce the results of the evaluation.

ARTICLE 4. COUNTY SUPERINTENDENT OF SCHOOLS.

§18-4-1. Election and term; interim superintendent.
  (a) The county superintendent shall be ~~elected~~ appointed by the board upon a majority vote of the members thereof to serve for a term of not less than one, nor more than four years. At the expiration of the term or terms for which he or she shall have been ~~elected~~ appointed, each county superintendent shall be eligible for ~~reelection~~ reappointment for additional terms of not less than one, nor more than four years: Provided, That at the expiration of his or her term or terms of service he the county superintendent may transfer to any teaching position in the county for which he or she is qualified and has seniority, ~~shall be given the status of teacher in the system~~ unless dismissed for statutory reasons. The appointment of the county superintendent shall be made ~~Such election shall be held~~ on or before the first day of ~~May and the persons so elected shall take office~~ June for a term beginning on the first day of July following the appointment.
  (b) A county superintendent who fills a vacancy caused by an incomplete term shall be appointed to serve until the following first day of July: Provided, however, That the board may appoint an interim county superintendent to serve for a period not to exceed one hundred twenty days from the occurrence of the vacancy.
  (c) The president of the county board, immediately upon the ~~election~~ appointment of the county superintendent, or the appointment of an interim county superintendent, shall certify the ~~election or~~ appointment to the state superintendent. ~~of schools.~~
  (d) During his or her term of appointment, the county superintendent shall be a resident of the county, or of a contiguous county in this state, which he or she serves. The county superintendent in office on the effective date of this section shall continue in office until the expiration of his or her term.

§18-4-2. Qualifications; health certificate; disability; acting superintendent.

  (a) Each county superintendent shall hold a professional administrative certificate endorsed for superintendent, or a first class permit endorsed for superintendent, subject to the following:
__(1) ~~Provided,~~ ~~That~~ A superintendent who holds a first class permit may be appointed for ~~only~~ one year only, and may be reappointed two times for an additional year each upon an annual evaluation by the county board and a determination of satisfactory performance and reasonable progress toward completion of the requirements for a professional administrative certificate endorsed for superintendent;
  (2) ~~Provided, however,~~ ~~That~~ Any candidate for superintendent who possesses an earned doctorate from an accredited institution of higher education and either has completed three successful years of teaching in public education ~~and~~ or has the equivalent of three years of experience in management or supervision as defined by state board rule, ~~upon employment~~ after employment by the county board ~~of education,~~ shall be granted a permanent administrative certificate and shall be a licensed county superintendent;
  (c) Upon finding that the course work needed by a superintendent who holds a first class permit endorsed for superintendent is not available or is not scheduled in a manner at state institutions of higher education which will enable him or her to complete the normal requirements for a professional administrative certificate endorsed for superintendent within the three-year period allowed for appointment and reappointment under the permit, the state board shall adopt a rule in accordance with article three-b, chapter twenty-nine-a of this code, to enable completion of the requirements, or comparable alternative requirements, for a professional administrative certificate endorsed for superintendent.
   (3) The state board shall promulgate a legislative rule in accordance with article three-b, chapter twenty-nine-a of this code, to address those cases where a county board finds that course work needed by the county superintendent who holds a first class permit is not available or is not scheduled at state institutions of higher education in a manner which will enable the county superintendent to complete normal requirements for a professional administrative certificate within the three-year period allowed under the permit; and
__(4) Any person employed as assistant superintendent or educational administrator prior to the twenty-seventh day of June, one thousand nine hundred eighty-eight, and who was previously employed as superintendent is not required to hold the professional administrative certificate endorsed for superintendent.
  (b) In addition to other requirements set forth in this section, ~~before entering upon the discharge of his or her duties the~~ a county superintendent shall meet the following health-related conditions of employment:
__(1) Before entering upon the discharge of his or her duties, file with the president of the county board a ~~health~~ certificate from a reputable physician, on a form prescribed by the state department of education, certifying that he or she is physically fit for the duties of his or her office and that he or she has no infectious or contagious disease; and if the superintendent, due to accident or illness, becomes incapacitated to an extent that could lead to a prolonged absence, the board, upon unanimous vote, may enter an order declaring the incapacity and it shall appoint an acting superintendent until such time as a majority of the members of the board determine that the incapacity no longer exists. However, an acting superintendent shall not serve as such for more than one year, or later than the expiration date of the superintendent's term, whichever is less, without being reappointed by the board of education licensed physician certifying the following:
__(A) A tuberculin skin test, of the type Mantoux test (PPD skin test), approved by the director of the department of health, has been made within four months prior to the beginning of the term of the county superintendent; and
__(B) The county superintendent does not have tuberculosis in a communicable state based upon the test results and any further study;
__(2) After completion of the initial test, the county superintendent shall have an approved tuberculin skin test once every two years or more frequently if medically indicated. Positive reactors to the skin test are to be referred immediately to a physician for evaluation and indicated treatment or further studies;
__(3) A county superintendent who is certified by a licensed physician to have tuberculosis in a communicable stage shall have his or her employment discontinued or suspended until the disease has been arrested and is no longer communicable; and
__(4) A county superintendent who fails to complete required follow-up examinations as set forth in this subsection shall be suspended from employment until a report of examination is confirmed.
§18-4-6. Evaluation of county superintendent.
  (a) At least annually, the county board shall evaluate the performance of the county superintendent. The evaluation process to be used shall be one authorized by the state board. The West Virginia school board association shall maintain a catalog of evaluation instruments which comply with this section and shall make them available to county boards.
  (b) At a minimum, the evaluation process shall require the county superintendent and county board to establish written goals or objectives for the county superintendent to accomplish within a given period of time. Additionally, the county board shall evaluate the county superintendent on his or her success in improving student achievement generally across the county and specifically as it relates to the management and administration of low performing schools.
  (c) The evaluation also may cover the performance of a county superintendent in the areas of community relations, school finance, personnel relations, curricular standards and programs, and overall leadership of the school district as indicated primarily by improvements in student achievement, testing and assessment.
  (d) The evaluation of a county superintendent shall occur in executive session. At the conclusion of the evaluation, the county board shall make available to the public a general statement about the evaluation process and the overall result. Additional information about the evaluation may be released only by mutual consent of the county superintendent and the county board. The county board may use the evaluation results to determine:
  (1) Whether to extend the contract of the county superintendent;
  (2) Whether to offer the county superintendent a new contract; and
  (3) The level of compensation or benefits to offer the county superintendent in any new or extended contract.

§18-4-10. Duties of county superintendent.

  The county superintendent shall:
  (1) Act as the chief executive officer of the county board as may be delineated in his or her contract or other written agreement with the county board, and, ~~execute~~ under the direction of the state board, execute all its ~~educational~~ education policies;
  (2) Nominate all personnel to be employed; in case the county board ~~of education~~ refuses to employ any or all of the persons nominated, the county superintendent shall nominate others and submit the same to the county board ~~of education~~ at ~~such~~ a time as the county board may direct. ~~but~~ No ~~such~~ person or persons shall be employed except on the nomination of the county superintendent;
  (3) Assign, transfer, suspend or promote teachers and all other school employees of the district, subject only to the approval of the county board, and to recommend to the county board their dismissal pursuant to the provisions of this chapter;
  (4) ~~Organize and attend district institutes; organize and direct reading circles and boys' and girls' clubs~~ Report promptly to the county board in such manner as it directs whenever any school in the district appears to be failing to meet the standards for improving education established pursuant to section five, article two-e of this chapter;
  (5) Close ~~temporarily~~ a school temporarily when conditions are detrimental to the health, safety or welfare of the pupils;
  (6) Certify all expenditures and monthly payrolls of teachers and employees;
  (7) Be Serve as the secretary of the county board and attend all meetings of the county board or its committees, except when ~~his~~ the tenure, salary or administration of the county superintendent is under consideration;
  (8) Administer oaths and examine ~~under oath~~ witnesses under oath in any proceedings pertaining to the schools of the district, and have the testimony reduced to writing;
  (9) Keep the county board apprized continuously of any issues that affect the county board or its schools, programs and initiatives. The county superintendent shall report to the county board on these issues using any appropriate means agreeable to both parties. When practicable, the reports shall be fashioned to include a broad array of data and information that the county board may consult to aid in making decisions;
__~~(9)~~ (10) Exercise all other authority granted by this chapter or required by the county board or state board; and
  ~~(10)~~ (11) ~~Act~~ In case of emergency, act as the best interests of the school demand. ~~Provided,~~ ~~That~~ An emergency, as contemplated in this section, ~~shall be~~ is limited to an unforeseeable, catastrophic event including natural disaster or act of war ~~Provided, however,~~ ~~That~~ and nothing in this section ~~shall~~ may be construed as granting the county superintendent authority to override any statutory or constitutional provision in the exercise of ~~said~~ his or her emergency power except where such authority is specifically granted in the particular code section.
§18-4-11. Other powers and duties.
  The county superintendent shall:
  (1) Visit the schools as often as ~~practical~~ practicable; observe and make suggestions concerning the instruction and classroom management of the schools and their sanitary conditions;
  (2) Report to the county board cases of incompetence, neglect of duty, immorality or misconduct in office of any teacher or employee;
  (3) Recommend for condemnation buildings unfit for school use;
  ~~(4) Direct the taking of the school census;~~
  ~~(5)~~ (4) Call, at his or her discretion, conferences of principals and teachers to discuss the work of the schools of the district;
  ~~(6)~~ (5) Report to the county board the progress and general condition of the schools;
  ~~(7)~~ (6) Make ~~such~~ reports as ~~are~~ required by the state superintendent. In case the county superintendent fails to report as required, the state superintendent may direct that the salary of the county superintendent ~~superintendent's salary~~ be withheld until an acceptable report is received; and
__~~(8)~~ (7) Perform all other duties prescribed in this chapter or required by the county board or the state board.;
  On page five, after section one-a, by inserting the following:

§18-5-1c. Organization of board; evaluation.

(a) On the first Monday of January, following each biennial primary election, each respective board of education shall organize and elect for a two-year term, a president from its own membership and report same promptly to the state superintendent of schools: ~~Provided,~~ That on the first Monday of January, one thousand nine hundred eighty-one, each respective board of education shall elect a president for a term to expire the thirtieth day of June, one thousand nine hundred eighty-two: ~~Provided, however,~~ ~~That~~ On the first Monday of July, following ~~the~~ each biennial primary election, ~~in the year one thousand nine hundred eighty-two and each biennial primary election thereafter~~ each respective county board ~~of education~~ shall organize and shall elect a president from its own membership for a two-year term. ~~a president from its own membership and~~ The county board shall report promptly to the state superintendent the name of the member elected as county board president ~~same promptly to the state superintendent of schools~~
(b) Annually, each county board shall assess its own performance using an instrument approved by the state board. In developing or making determinations on approving evaluation instruments, the state board may consult with the West Virginia school board association or other appropriate organizations. The evaluation instrument selected shall focus on the effectiveness of the county board in the following areas:
__(1) Dealing with its various constituency groups and with the general public;
__(2) Providing a proper framework and the governance strategies necessary to monitor and approve student achievement on a continuing basis; and
__(3) Enhancing the effective utilization of the policy approach to governance.
__At the conclusion of the evaluation, the county board shall make available to the public a summary of the evaluation, including areas in which the board concludes improvement is warranted.

§18-5-4. Meetings; employment and assignment of teachers; budget hearing; compensation of members; affiliation with state and national associations.

  (a) The county board shall meet on the first Monday of July, and upon the dates provided by law for the laying of levies, and at any other times the county board fixes upon its records. Subject to adequate public notice, nothing herein shall prohibit the county board from conducting regular meetings in facilities within the county other than the county board office. At any meeting as authorized in this section and in compliance with the provisions of article four of this chapter, the county board may employ qualified teachers, or those who will qualify by the time ~~of entering~~ they enter upon their duties, necessary to fill existing or anticipated vacancies for the current or next ensuing school year. At a meeting of the county board, on or before the first Monday of May, the county superintendent shall furnish in writing to the county board a list of those teachers to be considered for transfer and subsequent assignment for the next ensuing school year. All other teachers not listed are considered as reassigned to the positions held at the time of this meeting. The list of those recommended for transfer shall be included in the minute record and the teachers listed shall be notified in writing. The notice shall be delivered in writing, by certified mail, return receipt requested, to the teachers' last-known addresses within ten days following the board meeting, of their having been recommended for transfer and subsequent assignment.
  (b) Special meetings may be called by the president or any three members, but no business may be transacted other than that designated in the call.
  (c) In addition, a public hearing shall be held concerning the preliminary operating budget for the next fiscal year not ~~less~~ fewer than ten days after the budget has been made available to the public for inspection, and within a reasonable time prior to the submission of the budget to the state board for approval. Reasonable time shall be granted at the hearing to any person who wishes to speak regarding any part of the budget. Notice of the hearing shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code.
  (d) A majority of the members of the county board constitutes the quorum necessary for the transaction of official business.
  (e) Board members may receive compensation at a rate not to exceed one hundred sixty dollars per meeting attended, but they may not receive pay for more than fifty meetings in any one fiscal year: ~~Provided,~~ ~~That~~ Board members who serve on an administrative council of a multi- county vocational center ~~may~~ also may receive compensation for attending up to twelve meetings of the council at the same rate as for meetings of the county board. Meetings of the council are not counted as board meetings for purposes of determining the limit on compensable board meetings.
  (f) Members ~~shall~~ also shall be paid, upon the presentation of an itemized sworn statement, for all necessary traveling expenses, including all authorized meetings, incurred on official business, at the order of the county board.
  (g) When, by a majority vote of its members, a county board considers it a matter of public interest, the county board may join the West Virginia school board association and the national school board association, and may pay the dues prescribed by the associations and approved by action of the respective county boards. Membership dues and actual traveling expenses of incurred by board members for attending meetings of the West Virginia school board association may be paid by their respective county boards out of funds available to meet actual expenses of the members, but no allowance may be made except upon sworn itemized statements.

On page eight, following section seven, by adding the following:

§18-5-13. Authority of boards generally.
  ~~The boards~~ Each county board, subject to the provisions of this chapter and the rules of the state board, ~~have~~ has the authority:
  (a) To control and manage all of the schools and school interests for all school activities and upon all school property, whether owned or leased by the county, including the authority to require that records be kept of all receipts and disbursements of all funds collected or received by any principal, teacher, student or other person in connection with the schools and school interests, any programs, activities or other endeavors of any nature operated or carried on by or in the name of the school, or any organization or body directly connected with the school, to audit the records and to conserve the funds, which shall be considered quasi-public moneys, including securing surety bonds by expenditure of board moneys;
  (b) To establish schools, from preschool through high school, inclusive of vocational schools; and to establish schools, ~~and~~ programs or both, for post high school instruction, subject to approval of the state board ~~of education~~;
  (c) To close any school which is unnecessary and to assign the pupils of the school to other schools. Provided, That the closing shall be officially acted upon, and teachers and service personnel involved notified on or before the first Monday in April, in the same manner as provided in section four of this article, except in an emergency, subject to the approval of the state superintendent, or under subdivision (e) of this section;
  (d) To consolidate schools;
  (e) To close any elementary school whose average daily attendance falls below twenty pupils for two months in succession and send the pupils to other schools in the district or to schools in adjoining districts. If the teachers in the closed school are not transferred or reassigned to other schools, they shall receive one month's salary;
  (f) (1) To provide at public expense adequate means of transportation, including transportation across county lines for students whose transfer from one district to another is agreed to by both county boards as reflected in the minutes of their respective meetings, for all children of school age who live more than two miles distance from school by the nearest available road; to provide at public expense, ~~and~~ according to such rules as the board may establish, adequate means of transportation for school children participating in county board-approved curricular and extracurricular activities; ~~and~~ to provide ~~in addition thereto~~ at public expense, by rules and within the available revenues, transportation for those within two miles distance; and to provide, ~~in addition thereto,~~ at no cost to the county board and according to rules established by the board, transportation for participants in projects operated, financed, sponsored or approved by the commission on aging, all subject to the following:
  (A) ~~Provided, That all~~ All costs and expenses incident in any way to transportation for projects connected with the commission on aging shall be borne by the commission, or the local or county chapter of the commission;
  (B) ~~Provided, however, That in~~ In all cases, the school buses owned by the county board ~~of education~~ shall be driven or operated only by drivers regularly employed by the county board; ~~of education:~~
  (C) ~~Provided further, That the~~ The county board may provide, under rules established by the state board, for the certification of professional employees as drivers of county board-owned vehicles with a seating capacity of less than ten passengers used for the transportation of pupils for school-sponsored activities other than transporting students between school and home. ~~And provided further, That the~~ The use of the vehicles shall be limited to one for each school-sponsored activity; and
__(D) ~~And provided further, That buses~~ Buses shall be used for extracurricular activities as provided in this section only when the insurance provided for by this section is in effect.
  (2) To enter into agreements with one another as reflected in the minutes of their respective meetings to provide, on a cooperative basis, adequate means of transportation across county lines for children of school age subject to the conditions and restrictions of this ~~subdivision~~ subsection and ~~subdivision~~ subsection (h) of this section;
  (g) (1) To lease school buses operated only by drivers regularly employed by the county board to public and private nonprofit organizations or private corporations to transport school-age children to and from camps or educational activities in accordance with rules established by the county board. All costs and expenses incurred by or incidental to the transportation of the children shall be borne by the lessee;
  (2) To contract with any college or university or officially recognized campus organizations to provide transportation for college or university students, faculty or staff to and from the college or university. ~~Provided, That~~ ~~only~~ Only college and university students, faculty and staff ~~are being~~ may be transported pursuant to this section. The contract shall include consideration and compensation for bus operators, repairs and other costs of service, insurance and any rules concerning student behavior;
  (h) To provide at public expense for insurance against the negligence of the drivers of school buses, trucks or other vehicles operated by the board; and if the transportation of pupils is contracted, then the contract for the transportation shall provide that the contractor shall carry insurance against negligence in an amount specified by the board;
  (i) To provide solely from county board funds for all regular full-time employees of the county board all or any part of the cost of a group plan or plans of insurance coverage not provided or available under the West Virginia public employees insurance act;
  (j) To employ teacher aides, to provide in-service training for teacher aides, the training to be in accordance with rules of the state board and, in the case of service personnel assuming duties as teacher aides in exceptional children programs, to provide a four-clock-hour program of training prior to the assignment which shall, in accordance with rules of the state board, consist of training in areas specifically related to the education of exceptional children;
  (k) To establish and conduct a self-supporting dormitory for the accommodation of the pupils attending a high school or participating in a post high school program and of persons employed to teach in the high school or post high school program;
  (l) At the board's discretion, To to employ, contract with or otherwise engage legal counsel in lieu of utilizing the prosecuting attorney to advise, attend to, bring, prosecute or defend, as the case may be, any matters, actions, suits and proceedings in which the board is interested;
  (m) To provide appropriate uniforms for school service personnel;
  (n) To provide at public expense and under rules as established by any county board ~~of education~~ for the payment of traveling expenses incurred by any person invited to appear to be interviewed concerning possible employment by the county board; ~~of education;~~
  (o) To allow or disallow their designated employees to use publicly provided carriage to travel from their residences to their workplace and return: Provided, That the usage is subject to the supervision of the county board and is directly connected with and required by the nature and in the performance of the employee's duties and responsibilities;
  (p) To provide, at public expense, adequate public liability insurance, including professional liability insurance for county board employees;
  (q) To enter into agreements with one another to provide, on a cooperative basis, improvements to the instructional needs of each ~~county~~ district. The cooperative agreements may be used to employ specialists in a field of academic study or support functions or services, for the academic study. The agreements are subject to approval by the state board; ~~of education;~~
  (r) To provide information about vocational or higher education opportunities to students with handicapping conditions. The county board shall provide in writing to the students and their parents or guardians information relating to programs of vocational education and to programs available at state funded institutions of higher education. The information may include sources of available funding, including grants, mentorships and loans for students who wish to attend classes at institutions of higher education;
  (s) To enter into agreements with one another, with the approval of the state board, for the transfer and receipt of any and all funds determined to be fair when students are permitted or required to attend school in a ~~county~~ district other than the ~~county~~ district of their residence; and
  (t) To enter into job-sharing arrangements, as defined in section one, article one, chapter eighteen-a of this code, with its ~~professional~~ employees, subject to the following provisions:
__(1) ~~Provided,~~ ~~That a~~ A job-sharing arrangement shall meet all the requirements relating to posting, qualifications and seniority, as provided for in article four, chapter eighteen-a of this code;
  (2) ~~Provided, however,~~ ~~That notwithstanding~~ Notwithstanding any provisions of this code or legislative rule and specifically the provisions of article ~~fifteen~~ sixteen, chapter five of this code to the contrary, a county board which enters into a job-sharing arrangement ~~wherein~~ in which two or more ~~professional~~ employees voluntarily share an authorized full-time position shall provide the mutually agreed upon employee coverage but shall not offer insurance coverage to more than one of the job-sharing employees, including any group plan or group plans available under the state public employees insurance act;
  (3) Each job-sharing agreement shall be in writing on a form prescribed and furnished by the county board. The agreement shall designate specifically one employee only who is entitled to the insurance coverage. Any employee who is not so designated is not eligible for state public employees insurance coverage regardless of the number of hours he or she works;
__(4) ~~provided further, That~~ ~~all~~ All employees involved in the job-sharing agreement meet the requirements of subdivision ~~(4)~~ (3), section two, article sixteen, chapter five of this code; and
__(5) When entering into a job sharing agreement, the county board and the employees involved in the job-sharing agreement shall consider issues such as retirement benefits, termination of the job sharing agreement and any other issue the parties to the agreement consider appropriate. Any provision in the agreement relating to retirement benefits shall not cause any cost to be incurred by the retirement system that is more than the cost that would be incurred if a single employee were filling the position.
  'Quasi-public funds' as used in this section means any money received by any principal, teacher, student or other person for the benefit of the school system as a result of curricular or noncurricular activities.
  ~~The board of each county~~ Each county board shall expend under rules it establishes for each child an amount not to exceed the proportion of all school funds of the district that each child would be entitled to receive if all the funds were distributed equally among all the children of school age in the district upon a per capita basis.
§18-5-14. Policies to promote school board effectiveness.
  (a) No later than ~~Prior to~~ the first day of August, ~~one thousand nine hundred ninety-four~~ two thousand three, each county board ~~in this state~~ shall adopt ~~and may modify thereafter as necessary~~ and file with the state board copies of policies and summaries of policies that promote school board effectiveness. These policies may be modified by the county board as necessary, but shall be refiled with the state board following each modification. The policies shall address the following objectives:
__~~(a)~~ (1) ~~Establish~~ Establishing direct links between the county board and its local school improvement councils, and between the county board and its faculty senates, for the purpose of enabling the county board to receive information, comments and suggestions directly from the councils and faculty senates regarding the broad guidelines for oversight procedures, standards of accountability and planning for future needs as required by this section. ~~and~~ To further development of these linkages, each county ~~boards~~ board shall:
  (A) Meet at least annually with ~~the full membership~~ a quorum of members from each ~~of their schools'~~ local school improvement ~~councils~~ council in the district, at a time and in a manner to be determined by the county board, except, ~~For purposes of this provision, full membership is defined as at least a quorum of the members of each of the school improvement councils~~ in order to facilitate scheduling, the county board may adopt an alternate procedure allowing it to conduct the required annual meeting with each council in the absence of a quorum of council members if the alternate procedure has received prior approval from the state board and if the school district serves more than twenty thousand students or has more than twelve public schools.
  Nothing ~~herein~~ in this section ~~shall prohibit~~ prohibits a county ~~boards~~ board from meeting with representatives of ~~local school improvement~~ ~~councils:~~ ~~Provided,~~ ~~That~~ a local school improvement council, but at least one annual meeting is shall be held, as specified ~~herein~~ in this section.
__At any time and with reasonable advance notice, county boards may schedule additional meetings with the council for any low performing school in the district;
__(B) At least thirty days before an annual meeting with each local school improvement council, develop and submit to the council an agenda for the annual meeting which requires the council chair or a member designated by the chair, to address items designated by the county board from the report created pursuant to this section, and one or more of the following issues:
__(i) School performance;
__(ii) Curriculum;
__(iii) Status of the school in meeting the unified school improvement plan established pursuant to section five, article two-e of this chapter; and
__(iv) Status of the school in meeting the county plan established pursuant to section five, article two-e of this chapter;
__(C) Make written requests for information from the local school improvement council throughout the year or hold community forums to receive input from the affected community as the county board considers necessary; and
__(D) Report details to the state board ~~details~~ concerning ~~such~~ the meeting or meetings held with councils, as specified ~~herein, and~~ in this section. ~~such~~ The information shall be provided to the state board at the conclusion of the school year, but no later than the first day of September of each year, and shall become an indicator in the performance accreditation process for each county. In order to facilitate development of this report, a county board may consult with and request assistance from members of the councils.
__~~(b)~~ (2) ~~Provide~~ Providing for the development of direct links between the county board and the community at large ~~allow~~ allowing for community involvement at regular county board meetings and ~~specify~~ specifying how the county board will ~~regularly~~ communicate regularly with the public regarding important issues;
  ~~(c)~~ (3) ~~Provide~~ Providing for the periodic review of personnel policies of the district in order to determine their effectiveness;
  ~~(d)~~ (4) ~~Set~~ Setting broad guidelines for the school district, including the establishment of specific oversight procedures, development and implementation of standards of accountability, and ~~the~~ development of long-range plans to meet future needs as required by this section; and
  ~~(e)~~ (5) ~~Use~~ Using school-based accreditation and performance data provided by the state board and other available data in county board decision making to meet the education goals of the state and ~~such~~ other goals as the county board may establish.
  (b) On or before the first day of August of each year, county school boards shall review the policies listed in subsection (a) of this section and may modify these policies as necessary.
§18-5-25. Duties of superintendent as secretary of board.
  The county superintendent as secretary of the board shall:
  (1) Take the oath prescribed in the constitution before performing any of the duties of his office;
  (2) Attend all board meetings and record its official proceedings in a book kept for that purpose;
  (3) Record the number of each order issued, the name of the payee, the purpose for which the order was issued, and the amount thereof. Every order shall be signed by the secretary and the president of the board;
  (4) Care for and keep all papers belonging to the board, including evidences of title, contracts and obligations. They shall be kept in the secretary's office, accessibly arranged for reference;
  (5) Record and keep on file all papers and documents pertaining to the business of the board;
  (6) Make a tabular report to the board on or before the twentieth day of July, annually, showing all the statistics and facts required by the blanks furnished by the state superintendent. He may collect his material from the annual report of the sheriff, the teachers' register and such other sources as he thinks desirable, and he may accompany his report with such explanation and comment as he deems pertinent;
  ~~(7)~~ (6) Keep the accounts and certify the reports required by law or requested by the board;
  ~~(8)~~ (7) Administer oaths to school officers, teachers, and others making reports;
  ~~(9)~~ (8) Deliver in proper condition to his successor all records and property pertaining to his office; and
__~~(10)~~ (9) Exercise such other duties as are prescribed by law.
§18-5-45. School calendar.
  (a) As used in this section, the following terms have the following meanings:
  (1) Instructional day means a day within the instructional term which meets the following criteria:
  (A) Instruction is offered to students for the amounts of time provided by state board rule;
  (B) A minimum percentage of students, as defined by state board rule, is present in the county schools;
  (C) Instructional time is used for instruction, cocurricular activities and approved extracurricular activities, and pursuant to the provisions of subdivision (12), subsection (b), section five, article five-a of this chapter, faculty senates; and
  (D) Such other criteria as the state board determines appropriate.
  (2) Bank time means time added beyond the required instructional day which may be accumulated and used in larger blocks of time during the school year for instructional or noninstructional activities, as further defined by the state board.
  (3) Extracurricular activities are activities under the supervision of the school such as athletics, noninstructional assemblies, social programs, entertainment and other similar activities, as further defined by the state board.
  (4) Cocurricular activities are activities that are closely related to identifiable academic programs or areas of study that serve to complement academic curricula as further defined by the state board.
  (b) Findings. --
  (1) The primary purpose of the school system is to provide instruction for students.
  (2) The school calendar, as defined in this section, is designed to define the school term both for employees and for instruction.
  (3) The school calendar traditionally has provided for one hundred eighty actual days of instruction but numerous circumstances have combined to cause the actual number of instructional days to be less than one hundred eighty.
  (4) The quality and amount of instruction offered during the instructional term is affected by the extracurricular and cocurricular activities allowed to occur during scheduled instructional time.
  (5) Within reasonable guidelines, the school calendar should be designed at least to guarantee that one hundred eighty actual days of instruction are possible.
  (c) The county board shall provide a school term for its schools that contains the following:
  (1) An employment term for teachers of no less than two hundred days, exclusive of Saturdays and Sundays; and
  (2) Within the employment term, an instructional term for students of no less than one hundred eighty separate instructional days.
  (d) The instructional term for students shall include, one instructional day in each of the months of October, December, February, April and June which is an instructional support and enhancement day scheduled by the board to include both instructional activities for students and professional activities for teachers to improve student instruction. The instructional activities for students may include, but are not limited to, both in school and outside of school activities such as student mentoring, tutoring, counseling, student research and other projects or activities of an instructional nature, community service, career exploration, parent and teacher conferences, visits to the homes of students, college and financial aid workshops and college visits. The instructional activities for students shall be determined and scheduled at the local school level. The first two hours of the instructional day shall be used for instructional activities for students which require the direct supervision or involvement by teachers, and such activities shall be limited to two hours. To ensure that the students who attend are properly supervised, the instructional activities for students shall be arranged by appointment with the individual school through the principal, a teacher or other professional personnel at the school. The school shall establish a policy relating to the use of the two hour block scheduled for instructional activities for students. The professional activities for teachers shall include a two hour block of time immediately following the first two hours of instructional activities for students during which the faculty senate shall have the opportunity to meet. Any time not used by the faculty senate and the remainder of the school day, not including the duty free lunch period, shall be used for other professional activities for teachers to improve student instruction which may include, but are not limited to, professional staff development, curriculum team meetings, individualized education plan meetings and other meetings between teachers, principals, aides and paraprofessionals to improve student instruction as determined and scheduled at the local school level. Notwithstanding any other provision of law or policy to the contrary, the presence of any specific number of students in attendance at the school for any specific period of time shall not be required on instructional support and enhancement days and the transportation of students to the school shall not be required. Instructional support and enhancement days are also a scheduled work day for all service personnel and shall be used for training or other tasks related to their job classification if their normal duties are not required.
__~~(d)~~ (e) The instructional term shall commence no earlier than the twenty-sixth day of August and terminate no later than the eighth day of June.
  ~~(e)~~ (f) Noninstructional days shall total twenty and shall be comprised of the following:
  (1) Seven holidays as specified in section two, article five, chapter eighteen-a of this code;
  (2) Election day as specified in section two, article five, chapter eighteen-a of this code;
  (3) Six days to be designated by the county board to be used by the employees outside the school environment; and
  (4) Six days to be designated by the county board for any of the following purposes:
  (A) Curriculum development;
  (B) Preparation for opening and closing school;
  (C) Professional development;
  (D) Teacher-pupil-parent conferences;
  (E) Professional meetings; and
  (F) Making up days when instruction was scheduled but not conducted.
  ~~(f)~~ (g) Three of the days described in subdivision (4), subsection (f) of this section shall be scheduled prior to the twenty-sixth day of August for the purposes of preparing for the opening of school and staff development.
  ~~(g)~~ (h) At least one of the days described in subdivision (4), subsection (f) of this section shall be scheduled after the eighth day of June for the purpose of preparing for the closing of school. If one hundred eighty separate instruction days occur prior to the eighth day of June, this day may be scheduled on or before the eighth day of June.
  ~~(h)~~ (i) At least four of the days described in subdivision (3), subsection (f) of this section shall be scheduled after the first day of March.
  ~~(i)~~ (j) At least two of the days described in subdivision (4), subsection (f) of this section, will be scheduled for professional development. The professional development conducted on these days will be consistent with the goals established by the state board pursuant to the provisions of section twenty-three-a, article two, chapter eighteen of this code.
  ~~(j)~~ (k) Subject to the provisions of subsection (h) of this section, all noninstructional days will be scheduled prior to the eighth day of June.
  ~~(k)~~ (l) ~~The~~ Except as otherwise provided in this subsection, the state board may not schedule the primary statewide assessment program prior to the fifteenth day of May of the instructional year, unless the state board determines that the nature of the test mandates an earlier testing date. For the school year beginning two thousand-three only, the state board may not schedule the primary statewide assessment program prior to the fifteenth day of April of the instructional year.
__~~(l)~~ (m) If, on or after the first day of March, the county board determines that it is not possible to complete one hundred eighty separate days of instruction, the county board shall schedule instruction on any available noninstructional day, regardless of the purpose for which the day originally was scheduled, and the day will be used for instruction: Provided, That the noninstructional days scheduled for professional development shall be the last available noninstructional days to be rescheduled as instructional days: Provided, however, That on or after the first day of March, the county board also may require additional minutes of instruction in the school day to make up for lost instructional days in excess of the days available through rescheduling and, if in its judgment it is reasonable and necessary to improve student performance, to avoid scheduling instruction on noninstructional days previously scheduled for professional development. The provisions of this subsection do not apply to: (1) Holidays; and (2) election day.
  ~~(m)~~ (n) The following applies to bank time:
  (1) Bank time may not be used to avoid one hundred eighty separate days of instruction;
  (2) Bank time may not be used to lengthen the time provided in law for faculty senates;
  (3) The use of bank time for extracurricular activities will be limited by the state board; and
  (4) Such other requirements or restrictions as the state board may provide in the rule required to be promulgated by this section.
  ~~(n)~~ (o) The following applies to cocurricular activities:
  (1) The state board shall determine what activities may be considered cocurricular;
  (2) The state board shall determine the amount of instructional time that may be consumed by cocurricular activities; and
  (3) Such other requirements or restrictions as the state board may provide in the rule required to be promulgated by this section.
  ~~(o)~~ (p) The following applies to extracurricular activities:
  (1) Except as provided by subdivision (3) of this subsection, extracurricular activities may not be scheduled during instructional time;
  (2) The use of bank time for extracurricular activities will be limited by the state board; and
  (3) The state board shall provide for the attendance by students of certain activities sanctioned by the secondary schools activities commission when those activities are related to statewide tournaments or playoffs or are programs required for secondary schools activities commission approval.
  ~~(p)~~ (q) Noninstructional interruptions to the instructional day shall be minimized to allow the classroom teacher to teach.
  ~~(q)~~ (r) Nothing in this section prohibits establishing year-round schools in accordance with rules to be established by the state board.
  ~~(r)~~ (s) Prior to implementing the school calendar, the county board shall secure approval of its proposed calendar from the state board or, if so designated by the state board, from the state superintendent.
  ~~(s)~~ (t) The county board may contract with all or part of the personnel for a longer term.
  ~~(t)~~ (u) The minimum instructional term may be decreased by order of the state superintendent in any county declared a federal disaster area and where the event causing the declaration is substantially related to a reduction of instructional days.
  ~~(u)~~ (v) Where the employment term overlaps a teacher's or service personnel's participation in a summer institute or institution of higher education for the purpose of advancement or professional growth, the teacher or service personnel may substitute, with the approval of the county superintendent, the participation for up to five of the noninstructional days of the employment term.
  ~~(v)~~ (w) The state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code for the purpose of implementing the provisions of this section.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-2. Local school improvement councils; election.
  (a) A local school improvement council shall be established at every school consisting of the following:
  (1) The principal, who shall serve as an ex officio member of the council and be entitled to vote;
  (2) Three teachers elected by the faculty senate of the school;
  (3) Two school service personnel elected by the school service personnel employed at the school;
  (4) Three parent(s), guardian(s) or custodian(s) of students enrolled at the school elected by the parent(s), guardian(s) or custodian(s) members of the school's parent teacher organization: Provided, That if there is no parent teacher organization, the parent(s), guardian(s) or custodian(s) members shall be elected by the parent(s), guardian(s) or custodian(s) of students enrolled at the school in such manner as may be determined by the principal;
  (5) Two at-large members appointed by the principal, one of whom resides in the school's attendance area and one of whom represents business or industry, neither of whom is eligible for membership under any of the other elected classes of members;
  (6) In the case of vocational-technical schools, the vocational director: Provided, That if there is no vocational director, then the principal may appoint no more than two additional representatives, one of whom represents business and one of whom represents industry;
  (7) In the case of a school with students in grade seven or higher, the student body president or other student in grade seven or higher elected by the student body in those grades.
  (b) Under no circumstances may more than one parent member of the council be then employed at that school in any capacity.
__~~(b)~~ (c) The principal shall arrange for such elections to be held prior to the fifteenth day of September of each school year to elect a council and shall give notice of the elections at least one week prior to the elections being held. To the extent practicable, all elections to select council members shall be held within the same week.
  (d) Parent(s), guardian(s) or custodian(s), teachers and service personnel elected to the council shall serve a two-year term, and elections shall be arranged in such a manner that no more than two teachers, no more than two parent(s), guardian(s) or custodian(s), and no more than one service person are elected in a given year. All other non-exofficio members shall serve one-year terms.
  (e) Council members may only be replaced upon death, resignation, failure to appear at three consecutive meetings of the council for which notice was given, or a change in personal circumstances so that the person is no longer representative of the class of members from which appointed. In the case of ~~replacement, an election shall be held~~ ~~to elect~~ a vacancy in an elected membership, the chair of the council shall appoint another qualified person to serve the unexpired term of the person being replaced, or in the case of an appointed member of the council, the principal shall appoint a replacement as soon as practicable.
  ~~(c)~~ (f) As soon as practicable after the election of council members, and no later than the first day of October of each school year, the principal shall convene an organizational meeting of the school improvement council. The principal shall notify each member in writing at least two employment days in advance of the organizational meeting. At this meeting, the principal shall provide each member with the following:
__(1) A copy of the current applicable ~~section~~ sections of this code; ~~and~~
  (2) Any state board rule or regulation promulgated pursuant to the operation of these councils; and
__(3) Any information as may be developed by the department of education on the operation and powers of local school improvement councils and their important role in improving student and school performance and progress.
  (g) The council shall elect from its membership a chair and two members to assist the chair in setting the agenda for each council meeting. The chair shall serve a term of one year and no person may serve as chair for more than two consecutive terms. If the chair's position becomes vacant for any reason, the principal shall call a meeting of the council to elect another qualified person to serve the unexpired term. ~~(d)~~ Once elected, the chair is responsible for notifying each member of the school improvement council in writing two employment days in advance of any council meeting.
  (h) School improvement councils shall meet at least once every nine weeks or equivalent grading period at the call of the chair or by three fourths of its members.
  (i) The local school improvement council shall meet at least annually with the county board, in accordance with the provisions in section fourteen, article five of this chapter. At this annual meeting, the local school improvement council chair, or another member designated by the chair, shall be prepared to address any matters as may be requested by the county board as specified in the meeting agenda provided to the council and may further provide any other information, comments or suggestions the local school improvement council wishes to bring to the county board's attention. Anything presented under this subsection shall be submitted to the county board in writing.
__~~(e)~~ (j) School improvement councils shall be considered for the receipt of school of excellence awards under section three of this article and competitive grant awards under section twenty-nine, article two of this chapter, and may receive and expend such grants for the purposes provided in such section. In any and all matters which may fall within the scope of both the school improvement councils and the school curriculum teams authorized in section five of this article, the school curriculum teams shall be deemed to have jurisdiction. In order to promote innovations and improvements in the environment for teaching and learning at the school, a school improvement council shall receive cooperation from the school in implementing policies and programs it may adopt to:
  (1) Encourage the involvement of parent(s), guardian(s) or custodian(s) in their child's educational process and in the school;
  (2) Encourage businesses to provide time for their employees who are parent(s), guardian(s) or custodian(s) to meet with teachers concerning their child's education;
  (3) Encourage advice and suggestions from the business community;
  (4) Encourage school volunteer programs and mentorship programs; and
  (5) Foster utilization of the school facilities and grounds for public community activities.
  ~~(f)~~ (k) On or before the eighth day of June, one thousand nine hundred ninety-five, each local school improvement council shall develop and deliver a report to the county-wide council on productive and safe schools. The report shall include guidelines for the instruction and rehabilitation of pupils who have been excluded from the classroom, suspended from the school, or expelled from the school, the description and recommendation of in-school suspension programs, a description of possible alternative settings, schedules for instruction, and alternative education programs and an implementation schedule for such guidelines. The guidelines shall include the following:
  (1) A system to provide for effective communication and coordination between school and local emergency services agencies;
  (2) A preventive discipline program which may include the responsible students program devised by the West Virginia board of education as adopted by the county board of education, pursuant to the provisions of subsection (e), section one, article five, chapter eighteen-a of this code; and
  (3) A student involvement program, which may include the peer mediation program or programs devised by the West Virginia board of education as adopted by the county board of education, pursuant to the provisions of subsection (e), section one, article five, chapter eighteen-a of this code.
  ~~(g)~~ (l) The council may include in its report to the county-wide council on productive and safe schools provisions of the state board of education policy 4373, Student Code of Conduct, or any expansion of such policy which increases the safety of students in schools in this state and is consistent with the policies and other laws of this state.
  ~~(h)~~ (m) Councils may adopt their own guidelines established under this section. In addition, the councils may adopt all or any part of the guidelines proposed by other local school improvement councils, as developed under this section, which are not inconsistent with the laws of this state, the policies of West Virginia board of education or the policies of the county board of education.
  (n) The state board of education shall provide assistance to a local school improvement council upon receipt of a reasonable request for that assistance. The state board also may solicit proposals from other parties or entities to provide orientation training for local school improvement council members and may enter into contracts or agreements for that purpose. Any training for members shall meet the guidelines established by the state board.

§18-5A-5. Public school faculty senates established; election of officers; powers and duties.

  (a) There is established at every public school in this state a faculty senate which is comprised of all permanent, full-time professional educators employed at the school who shall all be voting members. Professional educators, as used in this section, means professional educators as defined in chapter eighteen-a of this code. A quorum of more than one half of the voting members of the faculty shall be present at any meeting of the faculty senate at which official business is conducted. Prior to the beginning of the instructional term each year, but within the employment term, the principal shall convene a meeting of the faculty senate to elect a chair, vice chair and secretary and discuss matters relevant to the beginning of the school year. The vice chair shall preside at meetings when the chair is absent. Meetings of the faculty senate shall be held ~~on a regular basis as determined by a schedule approved by the faculty senate and amended periodically if needed~~ during the times provided in accordance with subdivision (12), subsection (b) of this section as determined by the faculty senate. Emergency meetings may be held during noninstructional time at the call of the chair or a majority of the voting members by petition submitted to the chair and vice chair. An agenda of matters to be considered at a scheduled meeting of the faculty senate shall be available to the members at least two employment days prior to the meeting. For emergency meetings the agenda shall be available as soon as possible prior to the meeting. The chair of the faculty senate may appoint such committees as may be desirable to study and submit recommendations to the full faculty senate, but the acts of the faculty senate shall be voted upon by the full body.
  (b) In addition to any other powers and duties conferred by law, or authorized by policies adopted by the state or county board of education or bylaws which may be adopted by the faculty senate not inconsistent with law, the powers and duties listed in this subsection are specifically reserved for the faculty senate. The intent of these provisions is neither to restrict nor to require the activities of every faculty senate to the enumerated items except as otherwise stated. Each faculty senate shall organize its activities as it deems most effective and efficient based on school size, departmental structure and other relevant factors.
  (1) Each faculty senate shall control funds allocated to the school from legislative appropriations pursuant to section nine, article nine-a of this chapter. From such funds, each classroom teacher and librarian shall be allotted fifty dollars for expenditure during the instructional year for academic materials, supplies or equipment which, in the judgment of the teacher or librarian, will assist him or her in providing instruction in his or her assigned academic subjects or shall be returned to the faculty senate: Provided, That nothing contained herein prohibits the funds from being used for programs and materials that, in the opinion of the teacher, enhance student behavior, increase academic achievement, improve self-esteem and address the problems of students at-risk. The remainder of funds shall be expended for academic materials, supplies or equipment in accordance with a budget approved by the faculty senate. Notwithstanding any other provisions of the law to the contrary, funds not expended in one school year are available for expenditure in the next school year: Provided, however, That the amount of county funds budgeted in a fiscal year may not be reduced throughout the year as a result of the faculty appropriations in the same fiscal year for such materials, supplies and equipment. Accounts shall be maintained of the allocations and expenditures of such funds for the purpose of financial audit. Academic materials, supplies or equipment shall be interpreted broadly, but does not include materials, supplies or equipment which will be used in or connected with interscholastic athletic events.
  (2) A faculty senate may establish a process for faculty members to interview new prospective professional educators and paraprofessional employees at the school and submit recommendations regarding employment to the principal, who may also make independent recommendations, for submission to the county superintendent: Provided, That such process shall be chaired by the school principal and must permit the timely employment of persons to perform necessary duties.
  (3) A faculty senate may nominate teachers for recognition as outstanding teachers under state and local teacher recognition programs and other personnel at the school, including parents, for recognition under other appropriate recognition programs and may establish such programs for operation at the school.
  (4) A faculty senate may submit recommendations to the principal regarding the assignment scheduling of secretaries, clerks, aides and paraprofessionals at the school.
  (5) A faculty senate may submit recommendations to the principal regarding establishment of the master curriculum schedule for the next ensuing school year.
  (6) A faculty senate may establish a process for the review and comment on sabbatical leave requests submitted by employees at the school pursuant to section eleven, article two of this chapter.
  (7) Each faculty senate shall elect three faculty representatives to the local school improvement council established pursuant to section two of this article.
  (8) Each faculty senate may nominate a member for election to the county staff development council pursuant to section eight, article three, chapter eighteen-a of this code.
  (9) Each faculty senate shall have an opportunity to make recommendations on the selection of faculty to serve as mentors for beginning teachers under beginning teacher internship programs at the school.
  (10) A faculty senate may solicit, accept and expend any grants, gifts, bequests, donations and any other funds made available to the faculty senate: Provided, That the faculty senate shall select a member who has the duty of maintaining a record of all funds received and expended by the faculty senate, which record shall be kept in the school office and is subject to normal auditing procedures.
  (11) Any faculty senate may review the evaluation procedure as conducted in their school to ascertain whether the evaluations were conducted in accordance with the written system required pursuant to section twelve, article two, chapter eighteen-a of this code and the general intent of this Legislature regarding meaningful performance evaluations of school personnel. If a majority of members of the faculty senate determine that such evaluations were not so conducted, they shall submit a report in writing to the state board of education: Provided, That nothing herein creates any new right of access to or review of any individual's evaluations.
  (12) A local board shall provide to each faculty senate ~~either: (A)~~ ~~A two-hour per month block of instructional time within the instructional day; or (B)~~ a two hour block of time for a faculty senate meeting on a day scheduled for the opening of school prior to the beginning of the instructional term, and a two hour block of time on each instructional support and enhancement day scheduled by the board for instructional activities for students and professional activities for teachers pursuant section forty-five, article five of this chapter. A faculty senate may meet for an unlimited block of time per month during noninstructional days to discuss and plan strategies to improve student instruction. A faculty senate meeting scheduled on a noninstructional day shall be considered as part of the purpose for which the noninstructional day is scheduled. This time may be utilized and determined at the local school level and includes, but is not limited to, faculty senate meetings.
  (13) Each faculty senate shall develop a strategic plan to manage the integration of special needs students into the regular classroom at their respective schools and submit the strategic plan to the superintendent of the county board of education periodically pursuant to guidelines developed by the state department of education. Each faculty senate shall encourage the participation of local school improvement councils, parents and the community at large in developing the strategic plan for each school.
  Each strategic plan developed by the faculty senate shall include at least: (A) A mission statement; (B) goals; (C) needs; (D) objectives and activities to implement plans relating to each goal; (E) work in progress to implement the strategic plan; (F) guidelines for placing additional staff into integrated classrooms to meet the needs of exceptional needs students without diminishing the services rendered to the other students in integrated classrooms; (G) guidelines for implementation of collaborative planning and instruction; and (H) training for all regular classroom teachers who serve students with exceptional needs in integrated classrooms.
§18-8-4. Duties of attendance director and assistant directors; complaints, warrants and hearings.

  (a) The county attendance director and the assistants shall diligently promote regular school attendance. They shall ascertain reasons for inexcusable absences from school of pupils of compulsory school age and students who remain enrolled beyond the sixteenth birthday as defined under this article and shall take such steps as are, in their discretion, best calculated to correct attitudes of parents and pupils which results in absences from school even though not clearly in violation of law.
  (b) In the case of five consecutive or ten total unexcused absences of a child during a school year, the attendance director or assistant shall serve written notice to the parent, guardian or custodian of such child that the attendance of such child at school is required and that within ten days of receipt of the notice the parent, guardian or custodian, accompanied by the child, shall report in person to the school the child attends for a conference with the principal or other designated representative of the school in order to discuss and correct the circumstances causing the inexcusable absences of the child; and if the parent, guardian or custodian does not comply with the provisions of this article, then the attendance director or assistant shall make complaint against the parent, guardian or custodian before a magistrate of the county. If it appears from the complaint that there is probable cause to believe that an offense has been committed and that the accused has committed it, a summons or a warrant for the arrest of the accused shall issue to any officer authorized by law to serve the summons or to arrest persons charged with offenses against the state. More than one summons or warrant may be issued on the same complaint. The summons or warrant shall be executed within ten days of its issuance.
  (c) The magistrate court clerk, or the clerk of the circuit court performing the duties of the magistrate court as authorized in section eight, article one, chapter fifty of this code, shall assign the case to a magistrate within ten days of execution of the summons or warrant. The hearing shall be held within twenty days of the assignment to the magistrate, subject to lawful continuance. The magistrate shall provide to the accused at least ten days' advance notice of the date, time and place of the hearing.
  (d) When any doubt exists as to the age of a child absent from school, the attendance director shall have authority to require a properly attested birth certificate or an affidavit from the parent, guardian or custodian of such child, stating age of the child. The county attendance director or assistant shall, in the performance of his or her duties, have authority to take without warrant any child absent from school in violation of the provisions of this article and to place such child in the school in which such child is or should be enrolled.
  (e) The county attendance director shall devote such time as is required by section three of this article to the duties of attendance director in accordance with this section during the instructional term and at such other times as the duties of an attendance director are required. All attendance directors hired for more than two hundred days may be assigned other duties determined by the superintendent during the period in excess of two hundred days. The county attendance director shall be responsible under direction of the county superintendent for the efficient administration of school attendance in the county.
  (f) In addition to those duties directly relating to the administration of attendance, the county attendance director and assistant directors shall also perform the following duties:
  ~~(a)~~ (1) Assist in directing the taking of the school census to see that it is taken at the time and in the manner provided by law;
  ~~(b)~~ (2) Confer with principals and teachers on the comparison of school census and enrollment for the detection of possible nonenrollees;
  ~~(c)~~ (3) Cooperate with existing state and federal agencies charged with enforcement of child labor laws;
  ~~(d)~~ (4) Prepare a report for submission by the county superintendent to the state superintendent of schools on school attendance, at such times and in such detail as may be required. The state board shall promulgate a legislative rule pursuant to article three-b, chapter twenty-nine-a of this code that sets forth student absences that shall be excluded for accountability purposes. The absences that shall be excluded by the rule shall include, but not be limited to, excused student absences, students not in attendance due to disciplinary measures and absent students for whom the attendance director has pursued judicial remedies to compel attendance to the extent of his or her authority. The attendance director shall ~~also,~~ file with the county superintendent and county board of education at the close of each month a report showing activities of the school attendance office and the status of attendance in the county at the time;
  ~~(e)~~ (5) Promote attendance in the county by the compilation of data for schools and by furnishing suggestions and recommendations for publication through school bulletins and the press, or in such manner as the county superintendent may direct;
  ~~(f)~~ (6) Participate in school teachers' conferences with parents and students;
  ~~(g)~~ (7) Assist in such other ways as the county superintendent may direct for improving school attendance;
  ~~(h)~~ (8) Make home visits of students who have excessive unexcused absences, as provided above, or if requested by the chief administrator, principal or assistant principal; and
__~~(i) The attendance director shall~~ (9) Serve as the liaison for homeless children and youth."
  On page one, by amending the enacting section, to read as follows:
  "That section one, article one, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that section four, article two of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section five-g; that section seven, article two-e of said chapter be amended and reenacted; that section one, article three of said chapter be amended and reenacted; that sections one and two, article four of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section six; that sections ten and eleven of said article be amended and reenacted; that sections one-a, one-c, four, seven, thirteen, fourteen, twenty-five and forty-five, article five of said chapter be amended and reenacted; that sections two and five, article five-a of said chapter be amended and reenacted; and that section four, article eight of said chapter be amended and reenacted all to read as follows" followed by a colon.
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for S. B. 522 - "A Bill to amend and reenact section one, article one, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section four, article two of said chapter; to further amend said article by adding thereto a new section, designated section five-g; to amend and reenact section seven, article two-e of said chapter; to amend and reenact section one, article three of said chapter; to amend and reenact sections one and two, article four of said chapter; to amend said article by adding thereto a new section, designated section six; to amend and reenact sections ten and eleven of said article; to amend and reenact sections one-a, one-c, four, seven, thirteen, fourteen, twenty-five and forty-five, article five of said chapter; to amend and reenact section two and five, article five-a of said chapter; and to amend and reenact section four, article eight of said chapter, all relating to public education generally; definitions; allowing state board president to serve an unlimited number of terms, but no more than two consecutive terms; requiring county boards to provide summary of any modifications to policies or copies of annual reports to state board and requiring state board to submit copies to the legislative oversight commission on education accountability; allowing certain appropriations to be expended directly or through contractual agreements with county boards and regional education service agencies for materials and other costs associated with installation, set-up, internet hook-up and wiring of the computer hardware and software; clarifying that state superintendent serves at the will and pleasure of the state board; requiring the state board to annually evaluate the performance of the state superintendent and publicly announce the results of the evaluation; modifies authorization for county superintendent to transfer to a teaching position at the end of his or her term; extending the date before which the county superintendent is required to be appointed; requiring county superintendent to be a resident of the county, or of a contiguous county in this state, which he or she serves; requires state board to define three years of experience in management or supervision in rule; modifying requirements for health related conditions of employment for county superintendents; providing for discontinuing or suspending employment of county superintendent under certain circumstances; requiring that county superintendents be evaluated at least annually; providing criteria for evaluation; providing for evaluation to take place in executive session; directing county board to release general statement to the public and provide additional information only by mutual consent of county board and county superintendent; delineating appropriate uses of evaluation results; allowing contract or written agreement to delineate a county superintendent's acting as chief executive officer; deletes obsolete language; requiring county superintendent to report promptly to the county board whenever any school in the district appears to be failing to meet the standards for improving education; requiring county superintendent to keep county board apprized of issues affecting education in the district; removing requirement for county superintendent to direct the taking of school census; allowing county board members to serve on certain boards; allowing request of ethics commission for an advisory opinion; requiring ethics commission to issue advisory opinion within thirty days; entitling county board member who relies on opinion to reimbursement for fees and costs incurred under certain circumstances; prohibiting vote cast from being invalidated due to subsequent finding that holding particular office or committee is a bar to membership on the board; providing that good faith reliance on a written advisory opinion is an absolute defense to certain civil suits or criminal prosecutions; requiring board member training to include school performance issues; allowing feasible and practicable extension of training time; requiring annual county board self assessment; specifying focus of evaluation instrument; requiring summary of evaluation to be made public; allowing county boards to meet in facilities within the county other than the county board office; authorizing lease of school property subject to certain requirements; clarifying county board authority to employ, contract with or otherwise engage legal counsel; including service personnel in job sharing arrangements; adding requirements for job sharing; limiting cost to retirement system; requiring filing of policies and summaries of policies that promote school board effectiveness; requiring annual meeting with a quorum of members from each local school improvement council; providing for meeting with less than a quorum under certain circumstances; allowing county board to schedule additional meeting for any low performing school in the district; requires county board to develop agenda for required annual meeting with local school improvement council; requires county boards to make written requests for information from local school improvement council or hold community forums to receive input from the affected community as the county board considers necessary; modifying time requirements for reporting to state board on meetings with local school improvement councils; authorizing county board to request assistance from local school improvement council members to facilitate development of report; requiring county boards to review the policies to promote school board effectiveness each year; eliminating duty of county superintendent to make a tabular report to the county board annually; including five instructional support and enhancement days within the instructional term that include instructional activities, professional activities and time for a faculty senate meeting; requiring instructional activities for students to be scheduled by appointment; requiring school policy relating to use of time designated for instructional activities; providing that presence of any certain number of students and the transportation of students not required on instructional support and enhancement days; declaring instructional support and enhancement days a regular work day for all service personnel; providing that for one school year only, statewide assessment must be prior to the fifteenth day of April; requiring professional development days to be used last when making up instructional days; using additional minutes of instruction each day for making up lost instructional days in excess of the days available through rescheduling; to avoid scheduling instruction on noninstructional days previously scheduled for professional development under certain circumstances; prohibiting more than one parent member of a local school improvement council from being employed at the school; requiring chair to appoint replacement of elected member of local school improvement council if position becomes vacant; requiring principal to appoint replacement if appointed position becomes vacant; requires principal to provide certain information at the organizational meeting of the local school improvement council; requires local school improvement council chair, or designee, to be able to address certain matters at annual meeting and in writing; allows state board to enter into contracts to provide orientation training for local school improvement council members; requires that any training meet guidelines established by the state board; requires a two hour block of time be scheduled for a faculty senate meeting on a day scheduled for the opening of school prior to the beginning of the instructional term; and requires state board rule excluding certain absences for accountability purposes."
  Delegate Staton then offered an amendment to the Senate amendment to the House of Delegates amendment, as follows:
  On page thirty-five, section forty-five, line twenty-three, by striking out the words "(B) A minimum percentage of students, as defined by state board rule, is present in the county schools" and re-lettering subsequent paragraphs in the sequence.
  [Clerk's Note: The proceedings of the House were rapid at this point, and the amendment to the third degree was momentarily unnoticed. A Roll Call was also taken in error on the passage of the bill, as amended. The Roll Call (No. 648) has been discarded. The Clerk advised the Speaker of the erroneous parliamentary procedure and thereafter the proper proceedings were then followed.]
  Whereupon,
  The House, on motion, then insisted on its amendments and the Clerk was directed to inform the Senate of the action of the House.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates, with further amendment, and the passage, as amended, to take effect from passage, of
  S. B. 538, Allowing supplemental assessment of personal property in certain cases.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
  S. B. 657, Relating to capital company act.
  On motion of Delegate Staton, the bill was taken up for immediate consideration and the House receded from its amendment thereto.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 649), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Doyle.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 657) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect July 1, 2003, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2051, Expanding the eligibility of part-time students for higher education adult part-time student grants.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. HIGHER EDUCATION GRANT PROGRAM.
§18C-5-7. Higher education adult part-time student grant program.
  (a) There is established the higher education adult part-time student grant program, ~~hereafter~~ referred to in this section as the HEAPS grant program. The grant program established and authorized by this section is administered by the vice chancellor for administration. Moneys appropriated or otherwise available for ~~such purpose~~ the grant program shall be allocated by line item to an appropriate account. Any moneys remaining in the fund at the close of a fiscal year shall be carried forward for use in the next fiscal year.
  (b) As used in this section, the following terms have the meanings ascribed to them:
  (1) 'Approved distance education' means a course of study offered via electronic access that has been approved for inclusion in the applicant's program of study by the eligible institution of higher education at which the applicant is enrolled or has been accepted for enrollment;
  (2) 'Part-time' means enrollment for not less than ~~six~~ three nor more than eleven semester or term hours: Provided, That for no more than two semesters during the recipient's ten years of eligibility, the recipient may be considered to be enrolled part-time if he or she is enrolled for three or more semester or term hours: ~~Provided, however,~~ ~~That~~ in the case of enrollment in postsecondary certificate, industry recognized credential and other skill development programs in demand occupations in this state, 'part-time' means enrollment on such basis as is established for the program in which enrolled.
  (3) 'Satisfactory academic progress' means maintaining a cumulative grade point average of at least 2.0 on a 4.0 grading scale with a goal of obtaining a certificate, associate degree or bachelor's degree. In the case of postsecondary certificate, industry recognized credential and other skill development programs, satisfactory academic progress means continuous advancement toward completion of the program on the normal schedule established for the program in which enrolled;
  (4) 'Eligible institution' means:
  (A) Any community college; community and technical college; adult technical preparatory education program or training;
  (B) Any state college or university, as those terms are defined in section two, article one, chapter eighteen-b of this code;
  (C) Any approved institution of higher education as that term is defined in section two of this article; and
  (D) Any approved distance education, including world wide web based courses;
  (5) 'Eligible program or programs' or 'eligible course or courses' means, in addition to programs and courses offered by eligible institutions as defined in subdivision (4) of this subsection:
  (A) Programs and courses offered by any nationally accredited degree granting institution of higher learning permitted pursuant to section five, article three, chapter eighteen-b of this code and approved by the joint commission for vocational-technical occupational education; and
  (B) Any postsecondary certificate, industry recognized credential and other skill development programs of study as defined in this section in a demand occupation in this state;
  (6) 'State resident' means a student who has lived in West Virginia continuously for a minimum of twelve months immediately preceding the date of application for a HEAPS grant or renewal of a grant;
  (7) 'Postsecondary certificate program' means an organized program of study, approved by the joint commission for vocational-technical-occupational education, with defined competencies or skill sets that may be offered for credit or noncredit and which culminates in the awarding of a certificate: Provided, That postsecondary certificate programs offered by eligible institutions as defined in subdivision (4) of this subsection do not require the approval of the joint commission for vocational-technical-occupational education;
  (8) 'Demand occupation' means any occupation having documented verification from employers that job opportunities in that occupation are currently available or are projected to be available within a year within the state or regions of the state. The joint commission for vocational- technical-occupational education shall prepare and update annually a list of occupations that they determine meet the requirements of this definition;
  (9) 'Industry recognized credential program' means an organized program that meets nationally recognized standards in a particular industry, is approved by the joint commission for vocational-technical-occupational education and which culminates in the awarding of a certification or other credential commonly recognized in that industry: Provided, That industry recognized credential programs offered by eligible institutions as defined in subdivision (4) of this subsection do not require the approval of the joint commission for vocational-technical-occupational education; and
  (10) 'Skill development program' means a structured sequence or set of courses, approved by the joint commission for vocational-technical-occupational education, with defined competencies that are designed to meet the specific skill requirements of an occupation and which culminates in the awarding of a certificate of completion that specifically lists the competencies or skills mastered: Provided, That skill development programs offered by eligible institutions as defined in subdivision (4) of this subsection do not require the approval of the joint commission.
  (c) A person is eligible for consideration for a HEAPS grant if the person:
  (1) Demonstrates that he or she has applied for, accepted, or both, other student financial assistance in compliance with federal financial aid rules, including the federal Pell grant;
  (2) Qualifies as an independent student according to current federal financial aid criteria, unless the person is enrolling in a postsecondary certificate, industry recognized credential or other skill development program in a demand occupation in the state and has graduated from high school within the past two years;
  (2) Demonstrates financial need for funds, as defined by legislative rule;
  (4) Has not been enrolled in a high school diploma program, other than general education development (GED), for at least the two preceding years, unless the person applies the grant toward the cost of enrolling in a postsecondary certificate, industry recognized credential or other skill development program of study in a demand occupation in this state;
  (3) Is a state resident and may not be considered a resident of any other state;
  (4) Is a United States citizen or permanent resident thereof;
  (5) Is not incarcerated in a correctional facility;
  (6) Is not in default on a higher education loan; and
  (7) Is enrolled in a program of study at less than the graduate level on a part-time basis in an eligible institution or program of study and is making satisfactory academic progress at the time of application: Provided, That the requirement that the student be making satisfactory academic progress may not preclude a HEAPS grant award to a student who has been accepted for enrollment in an eligible institution or program of study but has not yet been enrolled.
  (d) Each HEAPS grant award is eligible for renewal until the course of study is completed, but not to exceed an additional nine years beyond the first year of the award.
  (e) The higher education policy commission shall propose a legislative rule pursuant to article three-a, chapter twenty-nine-a of this code to implement the provisions of this section which shall be filed with the legislative oversight commission on education accountability by the first day of September, two thousand ~~one~~ three. The Legislature hereby declares that an emergency situation exists and, therefore, the policy commission may establish, by emergency rule, under the procedures of article three-a, chapter twenty-nine-a of this code, a rule to implement the provisions of this section, after approval by the legislative oversight commission on education accountability.
  (f) The legislative rule shall provide at least the following:
  (1) That consideration of financial need, as required by subdivision (3), subsection (c) of this section, include the following factors:
  (A) Whether the applicant has dependents as defined by federal law;
  (B) Whether the applicant has any personal hardship as determined at the discretion of the vice chancellor for administration; and
  (C) Whether the applicant will receive any other source of student financial aid during the award period.
  (2) That an appropriate allocation process be provided for distribution of funds directly to the eligible institutions or programs based on the part-time enrollment figures of the prior year;
  (3) That not less than twenty-five percent of the funds appropriated in any one fiscal year be used to make grants to students enrolled in postsecondary certificate, industry recognized credential and other skill development programs of study: Provided, That after giving written notice to the legislative oversight commission on education accountability, the vice chancellor for administration may allocate less than twenty-five percent of the funds for such grants;
  (4) That ten percent of the funds appropriated in any one fiscal year shall be granted to state community and technical colleges by the council for community and technical college education in accordance with a process specified in the rule for noncredit and customized training programs which further the economic development goals of the state, help meet the training and skill upgrade needs of employers in the state, and for which funds are not available from other sources;
__~~(4)~~ (5) That any funds not expended by an eligible institution or program at the end of each fiscal year shall be returned to the vice chancellor for administration for distribution under the provisions of this section; ~~and~~
  (6) That grants under this section shall be available for approved distance education throughout the calendar year, subject only to the availability of funds; and
__~~(5)~~ (7) That the amount of each HEAPS grant award be determined using the following guidelines:
  (A) The amount of any HEAPS grant awarded to a student per semester, term hour or program for those students who are enrolled in eligible institutions or programs operated under the jurisdiction of an agency of the state or a political subdivision thereof shall be based upon the following:
  (i) Actual cost of tuition and fees;
  (ii) The portion of the costs determined to be appropriate by the commission; and
  (iii) In addition to factors (i) and (ii) above, in determining the amount of the award, the vice chancellor may consider the demand for the program pursuant to subdivision (8), subsection (b) of this section; and
  (B) The amount of any HEAPS grant awarded to a student who is enrolled in any other eligible institution, program or course shall be no greater than the average amount for comparable programs or courses as determined pursuant to the provisions of paragraph (A) above.
  (g) The vice chancellor for administration shall report annually, by the first day of December, on the status of the HEAPS grant program to the legislative oversight commission on education accountability.
  (h) The HEAPS grant program is subject to any provision of this article not inconsistent with the provisions of this section."
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2051 - "A Bill to amend and reenact section seven, article five, chapter eighteen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to reducing the semester or term hours required for eligibility; requiring rule provisions to provide for set aside and distribution of funds for certain noncredit and customized training programs; and requiring rule provisions on grant availability for approved distance education."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 650), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
  Absent And Not Voting: Cann, Caputo, Coleman and Doyle.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2051) passed.
  Delegate Staton moved that the bill take effect July 1, 2003.
  On this question, the yeas and nays were taken (Roll No. 651), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman, Doyle and Tabb.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2051) takes effect July 1, 2003.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2675, Mandating insurance coverage for certain clinical trials for ordinary costs of covered services.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That article sixteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto two new sections, designated sections seven-d and seven-e; that article sixteen-b of said chapter be amended by adding thereto two new sections, designated sections six-a and six-b; that article two, chapter nine of said code be amended by adding thereto two new sections, designated sections twelve and twelve-a; that article fifteen, chapter thirty-three of said code be amended by adding thereto a new section, designated section four-h; that article sixteen of said chapter be amended by adding thereto a new section, designated section three- r; that article twenty-four of said chapter be amended by adding thereto a new section, designated section four-a; that section six, article twenty-five of said chapter be amended and reenacted; that article twenty-five-a of said chapter be amended by adding thereto a new section, designated section twenty-four-a; and that said chapter be further amended by adding thereto a new article, designated article twenty-five-f, all to read as follows:
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.
§5-16-7d. Coverage for patient cost of clinical trials.
  (a) The provisions of this section and section seven-e of this article apply to the health plans regulated by this article.
  (b) This section does not apply to a policy, plan or contract paid for under Title XVIII of the Social Security Act.
  (c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial, as a result of:
  (1) Treatment provided for a life-threatening condition; or
  (2) Prevention of, early detection of or treatment studies on cancer.
  (d) The coverage under subsection (c) of this section is required if:
  (1)(A) The treatment is being provided or the studies are being conducted in a phase II, phase III or phase IV clinical trial for cancer and has therapeutic intent; or
  (B) The treatment is being provided in a phase II, phase III or phase IV clinical trial for any other life-threatening condition and has therapeutic intent;
  (2) The treatment is being provided in a clinical trial approved by:
  (A) One of the national institutes of health;
  (B) An NIH cooperative group or an NIH center;
  (C) The FDA in the form of an investigational new drug application or investigational device exemption;
  (D) The federal department of veterans affairs; or
  (E) An institutional review board of an institution in the state which has a multiple project assurance contract approved by the office of protection from research risks of the national institutes of health;
  (3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;
  (4) There is no clearly superior, noninvestigational treatment alternative;
  (5) The available clinical or preclinical data provide a reasonable expectation that the treatment will be more effective than the noninvestigational treatment alternative;
  (6) The treatment is provided in this state: Provided, That, if the treatment is provided outside of this state, the treatment must be approved by the payor designated in subsection (a) of this section;
  (7) Reimbursement for treatment is subject to all coinsurance, copayment and deductibles and is otherwise subject to all restrictions and obligations of the health plan; and
  (8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no greater than that provided by an in network or contracting provider. Coverage shall not be required if the out of network or noncontracting provider will not accept this level of reimbursement.
  (e) Payment for patient costs for a clinical trial is not required by the provisions of this section, if:
  (1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug, or to gain approval or coverage relating to additional clinical indications for an existing drug; or
  (2) The purpose of the clinical trial is designed to keep a generic version of a drug from becoming available on the market; or
  (3) The purpose of the clinical trial is to gain approval of or coverage for a reformulated or repackaged version of an existing drug.
  (f) Any provider billing a third party payor for services or products provided to a patient in a clinical trial shall provide written notice to the payor that specifically identifies the services as part of a clinical trial.
  (g) Notwithstanding any provision in this section to the contrary, coverage is not required for phase I of any clinical trial.
§5-16-7e. Definitions.

For purposes of section seven-d of this article:

  (a) A 'clinical trial' is a study that determines whether new drugs, treatments or medical procedures are safe and effective on humans. To determine the efficacy of experimental drugs, treatments or procedures, a study is conducted in four phases including the following:
  Phase II: The experimental drug or treatment is given to, or a procedure is performed on, a larger group of people to further measure its effectiveness and safety.
  Phase III: Further research is conducted to confirm the effectiveness of the drug, treatment or procedure, to monitor the side effects, to compare commonly used treatments and to collect information on safe use.
  Phase IV: After the drug, treatment or medical procedure is marketed, investigators continue testing to determine the effects on various populations and to determine whether there are side effects associated with long-term use.
  (b) 'Cooperative group' means a formal network of facilities that collaborate on research projects and have an established NIH-approved peer review program operating within the group.
  (c) 'Cooperative group' includes:
  (1) The national cancer institute clinical cooperative group;
  (2) The national cancer institute community clinical oncology program;
  (3) The AIDS clinical trial group; and
  (4) The community programs for clinical research in AIDS.
  (d) 'FDA' means the federal food and drug administration.
  (e) 'Life-threatening condition' means that the member has a terminal condition or illness that according to current diagnosis has a high probability of death within two years, even with treatment with an existing generally accepted treatment protocol.
  (f) 'Member' means a policyholder, subscriber, insured, certificate holder or a covered dependent of a policyholder, subscriber, insured or certificate holder.
  (g) 'Multiple project assurance contract' means a contract between an institution and the federal department of health and human services that defines the relationship of the institution to the federal department of health and human services and sets out the responsibilities of the institution and the procedures that will be used by the institution to protect human subjects.
  (h) 'NIH' means the national institutes of health.
  (i) 'Patient cost' means the routine costs of a medically necessary health care service that is incurred by a member as a result of the treatment being provided pursuant to the protocols of the clinical trial. Routine costs of a clinical trial include all items or services that are otherwise generally available to beneficiaries of the insurance policies. 'Patient cost' does not include:
  (1) The cost of the investigational drug or device;
  (2) The cost of nonhealth care services that a patient may be required to receive as a result of the treatment being provided to the member for purposes of the clinical trial;
  (3) Services customarily provided by the research sponsor free of charge for any participant in the trial;
  (4) Costs associated with managing the research associated with the clinical trial including, but not limited to, services furnished to satisfy data collection and analysis needs that are not used in the direct clinical management of the participant; or
  (5) Costs that would not be covered under the participant's policy, plan, or contract for noninvestigational treatments;
  (6) Adverse events during treatment are divided into those that reflect the natural history of the disease, or its progression, and those that are unique in the experimental treatment. Costs for the former are the responsibility of the payor as provided in section two of this article, and costs for the later are the responsibility of the sponsor. The sponsor shall hold harmless any payor for any losses and injuries sustained by any member as a result of his or her participation in the clinical trial.
ARTICLE 16B. WEST VIRGINIA CHILDREN'S HEALTH PROGRAM.
§5-16B-6a. Coverage for patient cost of clinical trials.
  (a) The provisions of this section and section six-b of this article apply to the health plans regulated by this article.
  (b) This section does not apply to a policy, plan or contract paid for under Title XVIII of the Social Security Act.
  (c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial, as a result of:
  (1) Treatment provided for a life-threatening condition; or
  (2) Prevention of, early detection of or treatment studies on cancer.
  (d) The coverage under subsection (c) of this section is required if:
  (1)(A) The treatment is being provided or the studies are being conducted in a phase II, phase III or phase IV clinical trial for cancer and has therapeutic intent; or
  (B) The treatment is being provided in a phase II, phase III or phase IV clinical trial for any other life-threatening condition and has therapeutic intent;
  (2) The treatment is being provided in a clinical trial approved by:
  (A) One of the national institutes of health;
  (B) An NIH cooperative group or an NIH center;
  (C) The FDA in the form of an investigational new drug application or investigational device exemption;
  (D) The federal department of veterans affairs; or
  (E) An institutional review board of an institution in the state which has a multiple project assurance contract approved by the office of protection from research risks of the national institutes of health;
  (3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;
  (4) There is no clearly superior, noninvestigational treatment alternative;
  (5) The available clinical or preclinical data provide a reasonable expectation that the treatment will be more effective than the noninvestigational treatment alternative;
  (6) The treatment is provided in this state: Provided, That, if the treatment is provided outside of this state, the treatment must be approved by the payor designated in subsection (a) of this section;
  (7) Reimbursement for treatment is subject to all coinsurance, copayment and deductibles and is otherwise subject to all restrictions and obligations of the health plan; and
  (8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no greater than that provided by an in network or contracting provider. Coverage shall not be required if the out of network or noncontracting provider will not accept this level of reimbursement.
  (e) Payment for patient costs for a clinical trial is not required by the provisions of this section, if:
  (1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug, or to gain approval or coverage relating to additional clinical indications for an existing drug; or
  (2) The purpose of the clinical trial is designed to keep a generic version of a drug from becoming available on the market; or
  (3) The purpose of the clinical trial is to gain approval of or coverage for a reformulated or repackaged version of an existing drug.
  (f) Any provider billing a third party payor for services or products provided to a patient in a clinical trial shall provide written notice to the payor that specifically identifies the services as part of a clinical trial.
  (g) Notwithstanding any provision in this section to the contrary, coverage is not required for phase I of any clinical trial.
§5-16B-6b. Definitions.
  For purposes of section six-a of this article:
  (a) A 'clinical trial' is a study that determines whether new drugs, treatments or medical procedures are safe and effective on humans. To determine the efficacy of experimental drugs, treatments or procedures, a study is conducted in four phases including the following:
  Phase II: The experimental drug or treatment is given to, or a procedure is performed on, a larger group of people to further measure its effectiveness and safety.
  Phase III: Further research is conducted to confirm the effectiveness of the drug, treatment or procedure, to monitor the side effects, to compare commonly used treatments and to collect information on safe use.
  Phase IV: After the drug, treatment or medical procedure is marketed, investigators continue testing to determine the effects on various populations and to determine whether there are side effects associated with long-term use.
  (b) 'Cooperative group' means a formal network of facilities that collaborate on research projects and have an established NIH-approved peer review program operating within the group.
  (c) 'Cooperative group' includes:
  (1) The national cancer institute clinical cooperative group;
  (2) The national cancer institute community clinical oncology program;
  (3) The AIDS clinical trial group; and
  (4) The community programs for clinical research in AIDS.
  (d) 'FDA' means the federal food and drug administration.
  (e) 'Life-threatening condition' means that the member has a terminal condition or illness that according to current diagnosis has a high probability of death within two years, even with treatment with an existing generally accepted treatment protocol.
  (f) 'Member' means a policyholder, subscriber, insured, certificate holder or a covered dependent of a policyholder, subscriber, insured or certificate holder.
  (g) 'Multiple project assurance contract' means a contract between an institution and the federal department of health and human services that defines the relationship of the institution to the federal department of health and human services and sets out the responsibilities of the institution and the procedures that will be used by the institution to protect human subjects.
  (h) 'NIH' means the national institutes of health.
  (i) 'Patient cost' means the routine costs of a medically necessary health care service that is incurred by a member as a result of the treatment being provided pursuant to the protocols of the clinical trial. Routine costs of a clinical trial include all items or services that are otherwise generally available to beneficiaries of the insurance policies. 'Patient cost' does not include:
  (1) The cost of the investigational drug or device;
  (2) The cost of nonhealth care services that a patient may be required to receive as a result of the treatment being provided to the member for purposes of the clinical trial;
  (3) Services customarily provided by the research sponsor free of charge for any participant in the trial;
  (4) Costs associated with managing the research associated with the clinical trial including, but not limited to, services furnished to satisfy data collection and analysis needs that are not used in the direct clinical management of the participant; or
  (5) Costs that would not be covered under the participant's policy, plan, or contract for noninvestigational treatments;
  (6) Adverse events during treatment are divided into those that reflect the natural history of the disease, or its progression, and those that are unique in the experimental treatment. Costs for the former are the responsibility of the payor as provided in section two of this article, and costs for the later are the responsibility of the sponsor. The sponsor shall hold harmless any payor for any losses and injuries sustained by any member as a result of his or her participation in the clinical trial.
CHAPTER 9. HUMAN SERVICES.

ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE OF COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND RESPONSIBILITIES GENERALLY.

§9-2-12. Coverage for patient cost of clinical trials.
  (a) The provisions of this section and section twelve-a of this article apply to the health plans regulated by this article.
  (b) This section does not apply to a policy, plan or contract paid for under Title XVIII of the Social Security Act.
  (c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial, as a result of:
  (1) Treatment provided for a life-threatening condition; or
  (2) Prevention of, early detection of or treatment studies on cancer.
  (d) The coverage under subsection (c) of this section is required if:
  (1)(A) The treatment is being provided or the studies are being conducted in a phase II, phase III or phase IV clinical trial for cancer and has therapeutic intent; or
  (B) The treatment is being provided in a phase II, phase III or phase IV clinical trial for any other life-threatening condition and has therapeutic intent;
  (2) The treatment is being provided in a clinical trial approved by:
  (A) One of the national institutes of health;
  (B) An NIH cooperative group or an NIH center;
  (C) The FDA in the form of an investigational new drug application or investigational device exemption;
  (D) The federal department of veterans affairs; or
  (E) An institutional review board of an institution in the state which has a multiple project assurance contract approved by the office of protection from research risks of the national institutes of health;
  (3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;
  (4) There is no clearly superior, noninvestigational treatment alternative;
  (5) The available clinical or preclinical data provide a reasonable expectation that the treatment will be more effective than the noninvestigational treatment alternative;
  (6) The treatment is provided in this state: Provided, That, if the treatment is provided outside of this state, the treatment must be approved by the payor designated in subsection (a) of this section;
  (7) Reimbursement for treatment is subject to all coinsurance, copayment and deductibles and is otherwise subject to all restrictions and obligations of the health plan; and
  (8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no greater than that provided by an in network or contracting provider. Coverage shall not be required if the out of network or noncontracting provider will not accept this level of reimbursement.
  (e) Payment for patient costs for a clinical trial is not required by the provisions of this section, if:
  (1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug, or to gain approval or coverage relating to additional clinical indications for an existing drug; or
  (2) The purpose of the clinical trial is designed to keep a generic version of a drug from becoming available on the market; or
  (3) The purpose of the clinical trial is to gain approval of or coverage for a reformulated or repackaged version of an existing drug.
  (f) Any provider billing a third party payor for services or products provided to a patient in a clinical trial shall provide written notice to the payor that specifically identifies the services as part of a clinical trial.
  (g) Notwithstanding any provision in this section to the contrary, coverage is not required for phase I of any clinical trial.
§9-2-12a. Definitions.
  For purposes of section twelve of this article:
  (a) A 'clinical trial' is a study that determines whether new drugs, treatments or medical procedures are safe and effective on humans. To determine the efficacy of experimental drugs, treatments or procedures, a study is conducted in four phases including the following:
  Phase II: The experimental drug or treatment is given to, or a procedure is performed on, a larger group of people to further measure its effectiveness and safety.
  Phase III: Further research is conducted to confirm the effectiveness of the drug, treatment or procedure, to monitor the side effects, to compare commonly used treatments and to collect information on safe use.
  Phase IV: After the drug, treatment or medical procedure is marketed, investigators continue testing to determine the effects on various populations and to determine whether there are side effects associated with long-term use.
  (b) 'Cooperative group' means a formal network of facilities that collaborate on research projects and have an established NIH-approved peer review program operating within the group.
  (c) 'Cooperative group' includes:
  (1) The national cancer institute clinical cooperative group;
  (2) The national cancer institute community clinical oncology program;
  (3) The AIDS clinical trial group; and
  (4) The community programs for clinical research in AIDS.
  (d) 'FDA' means the federal food and drug administration.
  (e) 'Life-threatening condition' means that the member has a terminal condition or illness that according to current diagnosis has a high probability of death within two years, even with treatment with an existing generally accepted treatment protocol.
  (f) 'Member' means a policyholder, subscriber, insured, certificate holder or a covered dependent of a policyholder, subscriber, insured or certificate holder.
  (g) 'Multiple project assurance contract' means a contract between an institution and the federal department of health and human services that defines the relationship of the institution to the federal department of health and human services and sets out the responsibilities of the institution and the procedures that will be used by the institution to protect human subjects.
  (h) 'NIH' means the national institutes of health.
  (i) 'Patient cost' means the routine costs of a medically necessary health care service that is incurred by a member as a result of the treatment being provided pursuant to the protocols of the clinical trial. Routine costs of a clinical trial include all items or services that are otherwise generally available to beneficiaries of the insurance policies. 'Patient cost' does not include:
  (1) The cost of the investigational drug or device;
  (2) The cost of nonhealth care services that a patient may be required to receive as a result of the treatment being provided to the member for purposes of the clinical trial;
  (3) Services customarily provided by the research sponsor free of charge for any participant in the trial;
  (4) Costs associated with managing the research associated with the clinical trial including, but not limited to, services furnished to satisfy data collection and analysis needs that are not used in the direct clinical management of the participant; or
  (5) Costs that would not be covered under the participant's policy, plan, or contract for noninvestigational treatments;
  (6) Adverse events during treatment are divided into those that reflect the natural history of the disease, or its progression, and those that are unique in the experimental treatment. Costs for the former are the responsibility of the payor as provided in section two of this article, and costs for the later are the responsibility of the sponsor. The sponsor shall hold harmless any payor for any losses and injuries sustained by any member as a result of his or her participation in the clinical trial.
CHAPTER 33. INSURANCE.
ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.
§33-15-4h. Coverage for patient cost of clinical trials.
  The provisions relating to clinical trials established in article twenty-five-f of this chapter shall apply to the individual market regulated by this article.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3r. Coverage for patient cost of clinical trials.
  The provisions relating to clinical trials established in article twenty-five-f of this chapter shall apply to the health benefit plans regulated by this article.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-4a. Coverage for patient cost of clinical trials.
  The provisions relating to clinical trials established in article twenty-five-f of this chapter shall apply to the insurance regulated by this article.
ARTICLE 25. HEALTH CARE CORPORATIONS.

§33-25-6. Supervision and regulation by insurance commissioner; exemption from insurance laws.

  Corporations organized under this article are subject to supervision and regulation of the insurance commissioner. The corporations organized under this article, to the same extent these provisions are applicable to insurers transacting similar kinds of insurance and not inconsistent with the provisions of this article, shall be governed by and be subject to the provisions as hereinbelow indicated of the following articles of this chapter: Article four (general provisions), except that section sixteen of said article shall not be applicable thereto; article six-c (guaranteed loss ratio); article seven (assets and liabilities); article eight (investments); article ten (rehabilitation and liquidation); section two-a, article fifteen (definitions); section two-b, article fifteen (guaranteed issue); section two-d, article fifteen (exception to guaranteed renewability); section two-e, article fifteen (discontinuation of coverage); section two-f, article fifteen (certification of creditable coverage); section two-g, article fifteen (applicability); section four-e, article fifteen (benefits for mothers and newborns); section fourteen, article fifteen (individual accident and sickness insurance); section sixteen, article fifteen (coverage of children); section eighteen, article fifteen (equal treatment of state agency); section nineteen, article fifteen (coordination of benefits with medicaid); article fifteen-c (diabetes insurance); section three, article sixteen (required policy provisions); section three-a, article sixteen (mental health); section three-j, article sixteen (benefits for mothers and newborns); section three-k, article sixteen (preexisting condition exclusions); section three-l, article sixteen (guaranteed renewability); section three-m, article sixteen (creditable coverage); section three-n, article sixteen (eligibility for enrollment); section eleven, article sixteen (coverage of children); section thirteen, article sixteen (equal treatment of state agency); section fourteen, article sixteen (coordination of benefits with medicaid); section sixteen, article sixteen (diabetes insurance); article sixteen-a (group health insurance conversion); article sixteen-c (small employer group policies); article sixteen-d (marketing and rate practices for small employers); article twenty- five-f (coverage for patient cost of clinical trials); article twenty-six-a (West Virginia life and health insurance guaranty association act); article twenty-seven (insurance holding company systems); article thirty-three (annual audited financial report); article thirty-four-a (standards and commissioner's authority for companies deemed to be in hazardous financial condition); article thirty-five (criminal sanctions for failure to report impairment); article thirty-seven (managing general agents); and article forty-one (privileges and immunity); and no other provision of this chapter may apply to these corporations unless specifically made applicable by the provisions of this article.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24a. Coverage for patient cost of clinical trials.
  The provisions relating to clinical trials established in article twenty-five-f of this chapter shall apply to the insurance regulated by this article.
ARTICLE 25F. COVERAGE FOR PATIENT COST OF CLINICAL TRIALS.
§33-25F-1. Definitions.
  For purposes of this article:
  (a) A 'clinical trial' is a study that determines whether new drugs, treatments or medical procedures are safe and effective on humans. To determine the efficacy of experimental drugs, treatments or procedures, a study is conducted in four phases including the following:
  Phase II: The experimental drug or treatment is given to, or a procedure is performed on, a larger group of people to further measure its effectiveness and safety.
  Phase III: Further research is conducted to confirm the effectiveness of the drug, treatment or procedure, to monitor the side effects, to compare commonly used treatments and to collect information on safe use.
  Phase IV: After the drug, treatment or medical procedure is marketed, investigators continue testing to determine the effects on various populations and to determine whether there are side effects associated with long-term use.
  (b) 'Cooperative group' means a formal network of facilities that collaborate on research projects and have an established NIH-approved peer review program operating within the group.
  (c) 'Cooperative group' includes:
  (1) The national cancer institute clinical cooperative group;
  (2) The national cancer institute community clinical oncology program;
  (3) The AIDS clinical trial group; and
  (4) The community programs for clinical research in AIDS.
  (d) 'FDA' means the federal food and drug administration.
  (e) 'Life-threatening condition' means that the member has a terminal condition or illness that according to current diagnosis has a high probability of death within two years, even with treatment with an existing generally accepted treatment protocol.
  (f) 'Member' means a policyholder, subscriber, insured, certificate holder or a covered dependent of a policyholder, subscriber, insured or certificate holder.
  (g) 'Multiple project assurance contract' means a contract between an institution and the federal department of health and human services that defines the relationship of the institution to the federal department of health and human services and sets out the responsibilities of the institution and the procedures that will be used by the institution to protect human subjects.
  (h) 'NIH' means the national institutes of health.
  (i) 'Patient cost' means the routine costs of a medically necessary health care service that is incurred by a member as a result of the treatment being provided pursuant to the protocols of the clinical trial. Routine costs of a clinical trial include all items or services that are otherwise generally available to beneficiaries of the insurance policies. 'Patient cost' does not include:
  (1) The cost of the investigational drug or device;
  (2) The cost of nonhealth care services that a patient may be required to receive as a result of the treatment being provided to the member for purposes of the clinical trial;
  (3) Services customarily provided by the research sponsor free of charge for any participant in the trial;
  (4) Costs associated with managing the research associated with the clinical trial including, but not limited to, services furnished to satisfy data collection and analysis needs that are not used in the direct clinical management of the participant; or
  (5) Costs that would not be covered under the participant's policy, plan, or contract for noninvestigational treatments;
  (6) Adverse events during treatment are divided into those that reflect the natural history of the disease, or its progression, and those that are unique in the experimental treatment. Costs for the former are the responsibility of the payor as provided in section two of this article, and costs for the later are the responsibility of the sponsor. The sponsor shall hold harmless any payor for any losses and injuries sustained by any member as a result of his or her participation in the clinical trial.
§33-25F-2. Coverage applicable under this article.
  (a) This section applies to:
  (1) Insurers and nonprofit health service plans that provide hospital, medical, surgical or pharmaceutical benefits to individuals or groups on an expense-incurred basis under a health insurance policy or contract issued or delivered in the state; and
  (2) Health maintenance organizations that provide hospital, medical, surgical or pharmaceutical benefits to individuals or groups under contracts that are issued or delivered in the state.
  (b) This section does not apply to a policy, plan or contract paid for under Title XVIII of the Social Security Act.
  (c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial, as a result of:
  (1) Treatment provided for a life-threatening condition; or
  (2) Prevention of, early detection of or treatment studies on cancer.
  (d) The coverage under subsection (c) of this section is required if:
  (1)(A) The treatment is being provided or the studies are being conducted in a phase II, phase III or phase IV clinical trial for cancer and has therapeutic intent; or
  (B) The treatment is being provided in a phase II, phase III or phase IV clinical trial for any other life-threatening condition and has therapeutic intent;
  (2) The treatment is being provided in a clinical trial approved by:
  (A) One of the national institutes of health;
  (B) An NIH cooperative group or an NIH center;
  (C) The FDA in the form of an investigational new drug application or investigational device exemption;
  (D) The federal department of veterans affairs; or
  (E) An institutional review board of an institution in the state which has a multiple project assurance contract approved by the office of protection from research risks of the national institutes of health;
  (3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;
  (4) There is no clearly superior, noninvestigational treatment alternative;
  (5) The available clinical or preclinical data provide a reasonable expectation that the treatment will be more effective than the noninvestigational treatment alternative;
  (6) The treatment is provided in this state: Provided, That, if the treatment is provided outside of this state, the treatment must be approved by the payor designated in subsection (a) of this section;
  (7) Reimbursement for treatment is subject to all coinsurance, copayment and deductibles and is otherwise subject to all restrictions and obligations of the health plan; and
  (8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no greater than that provided by an in network or contracting provider. Coverage shall not be required if the out of network or noncontracting provider will not accept this level of reimbursement.
  (e) Payment for patient costs for a clinical trial is not required by the provisions of this section, if:
  (1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug, or to gain approval or coverage relating to additional clinical indications for an existing drug; or
  (2) The purpose of the clinical trial is designed to keep a generic version of a drug from becoming available on the market; or
  (3) The purpose of the clinical trial is to gain approval of or coverage for a reformulated or repackaged version of an existing drug.
  (f) Any provider billing a third party payor for services or products provided to a patient in a clinical trial shall provide written notice to the payor that specifically identifies the services as part of a clinical trial.
  (g) Notwithstanding any provision in this section to the contrary, coverage is not required for phase I of any clinical trial."
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2675 - "A Bill to amend article sixteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto two new sections, designated sections seven-d and seven-e; to amend article sixteen-b of said chapter by adding thereto two new sections, designated sections six-a and six-b; to amend article two, chapter nine of said code by adding thereto two new sections, designated sections twelve and twelve-a; to amend article fifteen, chapter thirty-three of said code by adding thereto a new section, designated section four-h; to amend article sixteen of said chapter by adding thereto a new section, designated section three-r; to amend article twenty-four of said chapter by adding thereto a new section, designated section four-a; to amend and reenact section six, article twenty-five of said chapter; to amend article twenty-five-a of said chapter by adding thereto a new section, designated section twenty-four-a; and to further amend said chapter by adding thereto a new article, designated article twenty-five-f, all relating to mandating coverage for certain clinical trials under public employees insurance, children's health program, medicaid program, accident and sickness insurance, groups accident and sickness insurance, hospital service corporations, medical service corporations, dental service corporations, health service corporations, health care corporations and health maintenance organizations."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 652), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Cann and Faircloth.
  Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2675) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates, with amendment, and the passage, as amended, to take effect from passage, of
  Com. Sub. for S. B. 558, Establishing County and Municipal Economic Opportunity Development District Acts.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On pages one and two, by amending the title of the bill to read as follows:
  Com. Sub. for S. B. 558 - "A Bill to amend chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twenty-two; to amend chapter eight of said code by adding thereto a new article, designated article thirty-eight; to amend and reenact section eleven-a, article ten, chapter eleven of said code; and to amend and reenact section nine-f, article fifteen of said chapter, all relating generally to economic development for public purposes; authorizing counties and certain municipalities to create economic opportunity development districts and to use as special district excise tax to finance economic development within the districts; describing purposes for expenditures; providing for notice and hearing; providing for approval by council for community and economic development; establishing a special revenue account; providing for the Legislature's authorization to levy a special district excise tax; describing order or ordinance required to establish district; creating a district board to administer district; authorizing imposition of special district excise tax by order or ordinance; modifying district boundaries; procedures for abolition and dissolution of district; authorizing issuance of bonds or notes to finance development expenditures; providing for administration of special district excise tax by tax commissioner; and exempting certain sales and services in district from consumers sales and service tax."
  On motion of Delegate Staton, the House concurred in the Senate amendment to the House amendment.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 653), and there were--yeas 91, nays 8, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Ashley, Border, Browning, Calvert, Carmichael, Evans, Louisos and Schoen.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 558) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 654), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Calvert, Carmichael and Frich.
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 558) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  The House then proceeded to further consideration of S. B. 636, Exempting competitive bidding requirement for commodities and services by nonprofit workshops, having been read a second time in earlier proceedings and postponed until this time.
  Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
  On this question, the yeas and nays were taken (Roll No. 655), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
  The Speaker stated that the bill was on third reading.
  Delegate Amores asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill at this stage.
  On motion of Delegate Amores, the bill was amended on page five, line twenty-one, following the period, by inserting the following language:
  "Provided, however, That if a purchasing unit is required or may be required by federal statute or regulations to purchase commodities or services with competitive bidding, or may otherwise be disqualified from federal funding or assistance if it fails to purchase commodities or services with competitive bidding, the purchasing unit shall not be required to purchase commodities or services from non-profit workshops. Such purchasing units not required to purchase commodities or services from non-profit workshops include military installations of the national guard."
  The bill was then read a third time and put upon its passage.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 656), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 636) passed.
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 657), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 636) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  The House then proceeded to further consideration of S. B. 647, Establishing and maintaining self-insurance account by investment management board, having been read a second time in earlier proceedings and temporarily postponed.
  Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
  On this question, the yeas and nays were taken (Roll No. 658), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
  The bill was then read a third time and put upon its passage.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 659), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 647) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  S. B. 647 - "A Bill to repeal section twelve-a, article one, chapter twelve of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to repeal sections ten, fifteen, nineteen and twenty-one, article six of said chapter; to amend and reenact sections two, seven, twelve and thirteen, article one of said chapter; to amend and reenact sections one, two and three, article two of said chapter; to amend and reenact sections one and one-a, article three of said chapter; to amend and reenact sections three, four and six, article three-a of said chapter; to amend and reenact sections one and five, article five of said chapter; to amend and reenact sections one-a, two, four, five, eight, nine-e, twelve, thirteen and sixteen, article six of said chapter; to further amend said chapter by adding thereto a new article, designated article six-c; and to amend and reenact section twenty, article fifteen, chapter thirty-one of said code, all relating generally to the management and investment of moneys by the state; designating financial institutions as depositories for state funds; adding state and federal savings and loan associations as candidates as depository banks; removing requirement the state treasurer retain and invest money for current operation purposes; providing types of accounts; requiring approval of state treasurer to open account or process transaction through financial institution and exceptions; adding provision that the requirement that state funds only be deposited in designated depositories meeting collateral requirements does not apply to bond proceeds from the sale of general obligation bonds and bonds issued by various state entities; requiring contracts or agreements for banking goods or services with exceptions for trust and investment accounts for various bond issues; directing the treasurer to invest moneys; disposition of earnings on investments; expressly allowing payments to the state by electronic funds transfer; distribution of deposit reports; deleting collections by the chief inspector of public offices as the position no longer exists; requiring spending units to comply with procedures for receipt and disbursement of moneys not due the state; requiring disposition of federal funds transferred from unclaimed property division; extending the time for stale checks to become unclaimed property from six months to a maximum of one year; requiring competitive bids for the selection of vendors to implement electronic capabilities of offices of state treasurer and auditor; specifying legal effect of documents and electronic signatures and adding the comptroller; administration of the West Virginia check card; allowing the state treasurer to authorize spending units to assess and collect fees for electronic commerce receipts; adding cash to the definition of securities; authorizing the treasurer to create any accounts needed for the deposit of cash, to invest the money and to prescribe forms and procedures for receipt and disbursements of the moneys; transfer of management of consolidated fund from investment management board to the state treasurer; amending definition of consolidated fund; providing insurance coverage for investment management board and others; investment of funds of political subdivisions; transferring rights, duties and responsibilities for the consolidated fund and certain loans made from consolidated fund; creating the consolidated fund investment act; stating purposes and findings of the act; specifying the authority of the treasurer for investments and restrictions on investments; continuing the consolidated fund and vesting it in the state treasurer on the first day of July, two thousand three; transferring the management, control and administration of the consolidated fund to the state treasurer from the investment management board; requiring the state treasurer to retain an internal auditor; requiring the treasurer to annually develop, adopt and review asset allocation plans and investment policies; specifying permitted investments; authorizing loans for industrial development and investment in the West Virginia enterprise capital fund, LLC; increasing the amount of loans available to the economic development authority to one hundred seventy-five million dollars; exempting West Virginia enterprise capital fund, LLC, from taxes or fees; handling of securities; establishing the uniform prudent investor act as the standard of care; requiring the investment management board to transfer the cash, securities and other investments of the consolidated fund to the treasurer on the first day of July, two thousand three; requiring audits, financial statements and reports; specifying that spending units retain the functions and duties imposed by law as to any fund or account; creating fee and investment accounts; and authorizing fees for administration and expenses."
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 660), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Long.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 647) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  The House then proceeded to further consideration of S. B. 650, Making supplementary appropriation of federal funds to department of health and human resources, division of health, maternal and child health, having been read a second time in earlier proceedings and postponed until this time.
  Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
  On this question, the yeas and nays were taken (Roll No. 661), and there were--yeas 94, nays 5, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Ashley, Faircloth, Leggett, Louisos and Sobonya.
  Absent And Not Voting: Coleman.
  So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
  The Speaker stated that the bill was on third reading.
  Delegate Amores asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill at this stage.
  On motion of Delegate Amores, the bill was amended on page two, beginning on line one, by striking out the remainder of the bill, and inserting in lieu thereof the following language:
"ARTICLE 15. WATER RESOURCES OF THE STATE.
§20-15-1. Protection of water resources.
  (a) Water is a vital natural resource of the state. A sufficient quantity of water is essential to maintain, preserve and promote the quality of life and the economic vitality of the state.
  (b) The state's power to own, manage and control waters within the state in the public interest shall extend to the limits allowed under the common law existing on the effective date of this section, applicable federal and state statutes and the constitutions of West Virginia and the United States: Provided, That the state's ownership, management and control is subject to private rights or ownership in property as recognized by the common law existing on the effective date of this section, applicable federal and state statutes and the constitutions of West Virginia and the United States existing on the effective date of this section, including, but not limited to, private rights or ownership in flowing waters, in springs, and in surface and subterranean waters.
  (c) The state of West Virginia may not impose a tax or fee for the use of waters within the state or impose a tax or fee for the use thereof, other than those fees by a governmental body or regulatory agency imposed pursuant to legislative enactment."
  The bill was then read a third time and put upon its passage.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 662), and there were--yeas 88, nays 11, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Armstead, Canterbury, Carmichael, Faircloth, Leggett, Louisos, Poling, Romine, Shaver, Sobonya and Walters.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 650) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  On motion of Delegate Varner, the House of Delegates requested the return from the Senate of
  H. B. 2224, Relating to higher education reorganization.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Special Calendar
Third Reading
  Com. Sub. for S. B. 162, Expunging certain motor vehicle license information for nineteen-year-olds; on third reading, coming up in regular order, was read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 664), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 162) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  The House then proceeded to further consideration of S. B. 352, Reenacting jobs act, having been read a second time in earlier proceedings.
  Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
  On this question, the yeas and nays were taken (Roll No. 665), and there were--yeas 91, nays 8, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Blair, Border, Calvert, Duke, Frederick, Leggett, Overington and Schoen.
  Absent And Not Voting: Coleman.
  So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
  The bill was then read a third time.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 666), and there were--yeas 94, nays 5, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Calvert, Duke, Faircloth, Frederick and Overington.
  Absent And Not Voting: Coleman.
  So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 352) passed.
  An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
  S. B. 352 - "A Bill to amend and reenact sections five and seven, article one-c, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the West Virginia jobs act; requiring reporting to the state tax department; and changing the effective date."
  Delegate Staton moved that the bill take effect March 15, 2003.
  On this question, the yeas and nays were taken (Roll No. 667), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Overington.
  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 352) takes effect March 15, 2003.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  At 11:00 p.m., on motion of Delegate Staton, the House of Delegates recessed until 11:30 p.m., and reconvened at that time.
  Com. Sub. for S. B. 594, Increasing membership on public employees insurance agency finance board, having been reported in earlier proceedings and postponed until this time, was taken up for further consideration.
  The bill was then read a third time.
  Delegate Ashley requested to be excused from voting on the passage of Com. Sub. for S. B. 594 under the provisions of House Rule 49.
  The Speaker refused to excuse the Gentleman from voting, stating that he was a member of a class of persons possibly to be affected by the passage of the bill and that he demonstrated no direct personal or pecuniary interest therein.
  The question being on the passage of the bill, the yeas and nays were taken (Roll No. 668), and there were--yeas 37, nays 61, absent and not voting 2, with the yeas and absent and not voting being as follows:
  Yeas: Mr. Speaker, Mr. Kiss, and Delegates Amores, Azinger, Beane, Browning, Butcher, Campbell, Caputo, Craig, DeLong, Doyle, Ellem, Ennis, Ferrell, Frederick, Hrutkay, Kominar, Kuhn, Leach, Long, Manchin, Martin, Morgan, Paxton, Perdue, Perry, Pino, Stalnaker, Staton, Tabb, R. Thompson, R. M. Thompson, Tucker, Varner, G. White, H. White and Wright.
  Absent And Not Voting: Coleman and Mezzatesta.
  So, a majority of the members present and voting not having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 594) rejected.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Messages from the Senate
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence in the amendments of the House of Delegates and the passage, as amended, to take effect March 15, 2003, of
  S. B. 352, Relating to jobs act.
  A message from the Senate, by
  The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, of
  Com. Sub. for H. B. 2092, Creating a sentencing commission and providing for the appointment, terms and qualifications of members.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  H. B. 2748, Preventing mail order or internet sales of tobacco products to persons under eighteen years of age.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto two new articles, designated articles nine-e and nine-f, all to read as follows:
ARTICLE 9E. DELIVERY SALES OF TOBACCO.

§16-9E-1. Definitions.
For purposes of this article:
  (a) 'Adult' means a person who is at least the legal minimum purchase age, as defined by section two, article nine-a of this chapter.
  (b) 'Consumer' means an individual who does not hold a business registration certificate in this state for the business of selling tobacco products as a wholesale or retail dealer.
  (c) 'Delivery sale' means any sale of cigarettes to a consumer in this state where either: (1) The purchaser submits the order for such sale by means of a telephonic or other method of voice transmission, the mails or any other delivery service, or the internet or other online service; or (2) the cigarettes are delivered by use of the mails or a delivery service. A sale of cigarettes shall be a delivery sale regardless of whether or not the seller is located within this state. A sale of cigarettes not for personal consumption to a person who holds a business registration certificate as a wholesale dealer or a retail dealer shall not be a delivery sale.
  (d) 'Delivery service' means any person who is engaged in the commercial delivery of letters, packages, or other containers.
  (e) 'Department' means the state tax department.
  (f) 'Legal minimum purchase age' is at least eighteen years of age as defined by section two, article nine-a of this chapter for the purchase of cigarettes in this state.
  (g) 'Mails' or 'mailing' means the shipment of cigarettes through the United States postal service.
  (h) 'Shipping container' means a container in which cigarettes are shipped in connection with a delivery sale.
  (i) 'Shipping documents' means bills of lading, airbills, or any other documents used to evidence the undertaking by a delivery service to deliver letters, packages, or other containers.

16-9E-2. Requirements for delivery sales.

  (a) No person shall make a delivery sale of cigarettes to any individual who is under the legal minimum purchase age in this state.
  (b) Each person accepting a purchase order for a delivery sale shall comply with:
  (1) The age verification requirements set forth in section three of this article;
  (2) The disclosure requirements set forth in subdivision (3), subsection (a), section three of this article;
  (3) The shipping requirements set forth in section four of this article;
  (4) The registration and reporting requirements set forth in section five of this article;
  (5) The tax collection requirements set forth in section six of this article; and
  (6) All other laws of this state generally applicable to sales of cigarettes that occur entirely within this state, including, but not limited to, those laws imposing: (i) Excise taxes; (ii) sales taxes; (iii) license and revenue-stamping requirements; and (iv) escrow or other payment obligations.

§16-9E-3. Age verification requirements.

  (a) No person shall mail, ship, or otherwise deliver cigarettes in connection with a delivery sale unless prior to the first delivery sale to a consumer, the person:
  (1) Obtains from the prospective consumer a certification that includes a reliable confirmation that the consumer is at least the legal minimum purchase age and a statement signed by the prospective consumer in writing that certifies the prospective consumer's address and that the consumer is at least eighteen years of age. The statement shall also confirm: (i) That the prospective consumer understands that it is illegal to sign another person's name to the certification; (ii) that the sale of cigarettes to individuals under the legal minimum purchase age is illegal; and (iii) that the purchase of cigarettes by individuals under the legal minimum purchase age is illegal under the laws of this state;
  (2) Verifies the information contained in the certification provided by the prospective consumer against an appropriate database of government records available to the distributor or seller, or obtains simultaneous with the certificate as provided for in subdivision (1), a photocopy or other image of the valid, government-issued identification stating the date of birth or age of the individual placing the order;
  (3) Sends to the prospective consumer, via e-mail or other means, a notice that contains: (A) A prominent and clearly legible statement that cigarette sales to a consumer below the legal minimum purchase age is illegal; (B) a prominent and clearly legible statement that consists of one of the warnings set forth in section 4(a)(1) of the federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1333(a)(1), rotated on a quarterly basis; (C) a prominent and clearly legible statement that sales of cigarettes are restricted to those consumers who provide verifiable proof of age in accordance with section three of this article; and (D) a prominent and clearly legible statement that cigarette sales are subject to excise and sales taxes in this state, and an explanation of how such taxes have been, or are to be, paid with respect to the delivery sale.
  (4) In the case of an order for cigarettes pursuant to an advertisement on the internet, receives payment for the delivery sale from the prospective consumer by a credit or debit card or check that has been issued in the consumer's name.
  (b) Persons accepting purchase orders for delivery sales may request that prospective consumers provide their e-mail addresses.

§16-9E-4. Shipping requirements.

  (a) Each person who mails, ships, or otherwise delivers cigarettes in connection with a delivery sale:
  (1) Shall include as part of the bill of lading or other shipping documents a clear and conspicuous statement providing as follows: 'Cigarettes: West Virginia Law Prohibits Shipping to Individuals Under 18, and Requires the Payment of all Applicable Taxes';
  (2) Shall use a method of mailing, shipping, or delivery that obligates the delivery service to require: (i) The consumer placing the purchase order for the delivery sale, or another adult of legal minimum purchase age, to sign to accept delivery of the shipping container; and (ii) proof, in the form of a valid, government-issued identification bearing a photograph of the individual who signs to accept delivery of the shipping container, demonstrating that he is either the addressee or another adult of legal minimum purchase age; and
  (3) Shall provide to the delivery service retained for such delivery sale evidence of full compliance with section seven of this article.
  (b) A delivery service shall be in violation of this article if it: (1) Ships or otherwise delivers cigarettes in connection with a delivery sale without first receiving evidence of compliance with section seven of this article; or (2) fails to comply with the requirements described in subsection (a) or described in section six of this article:
  (1) When obligated to do so under a method of shipping or delivery;
  (2) When delivering any container pursuant to shipping documents containing the statement described in subdivision (1), of subsection (a) of this section; or
  (3) When delivering any container that the delivery service otherwise has reason to know contains cigarettes.
  (c) If the person accepting a purchase order for a delivery sale delivers the cigarettes without using a delivery service, that person shall comply with all requirements of this article applicable to a delivery service and shall be in violation of the provisions of this article upon failure to comply with the requirements.

§16-9E-5. Registration and reporting requirements.

  (a) Prior to making delivery sales or mailing, shipping, or otherwise delivering cigarettes in connection with any such sales, every person shall file with the department a statement setting forth the seller's name, trade name, and the address of the seller's principal place of business and any other place of business.
  (b) Not later than the tenth day of each calendar month, each person that has made a delivery sale or mailed, shipped, or otherwise delivered cigarettes in connection with any such sale during the previous calendar month shall file with the department a memorandum or a copy of the invoice that provides for each and every delivery sale:
  (1) The name and address of the consumer to whom the delivery sale was made;
  (2) The brand or brands of the cigarettes that were sold in the delivery sale; and
  (3) The quantity of cigarettes that were sold in the delivery sale.
  (c) Any person that satisfies the requirements of 15 U.S.C. §376 shall be deemed to satisfy the requirements of this section.

§16-9E-6. Collection of taxes.

Each person accepting a purchase order for a delivery sale shall collect and remit to the department all cigarette taxes imposed by this state with respect to such delivery sale, except that the collection and remission shall not be required to the extent the person has obtained proof, in the form of the presence of applicable tax stamps or otherwise, that the taxes already have been paid to this state.

§16-9E-7. Penalties.

  (a) Except as otherwise provided in this section, a first violation of any provision of this article shall be a misdemeanor, and punishable by a fine of five hundred dollars or five times the retail value of the cigarettes involved, whichever is greater.
  (b) Any person who knowingly violates any provision of this article, or who knowingly and falsely submits a certification under section three of this article in another person's name, shall be guilty of a misdemeanor, be fined one thousand dollars or ten times the retail value of the cigarettes involved, whichever is greater, or confined not more than six months, or both.
  (c) Any person failing to collect or remit to the department any tax required in connection with a delivery sale shall be assessed, in addition to any other penalty, a penalty of five times the retail value of the cigarettes involved.
  (d) Any cigarettes sold or attempted to be sold in a delivery sale that does not meet the requirements of this article shall be forfeited to this state and destroyed. All fixtures, equipment, and all other materials and personal property on the premises of any person who, with the intent to defraud this state, violates any of the requirements of this article, shall be forfeited to this state.

§16-9E-8. Enforcement.

For violations of this article resulting in a delivery of tobacco products in this state, the prosecuting attorney of the county where the delivery is made shall have the power to prosecute the violation and to bring any action necessary to prevent further violations. The attorney general or any person who holds a valid permit under 26 U.S.C. § 5712 may bring any actions required to enforce all other requirements of this article and to prevent all other violations of its provisions.

ARTICLE 9F. COUNTERFEIT CIGARETTES.

§16-9F-1. Definition.
As used in this article, 'counterfeit cigarettes' means cigarettes that: (a) Have false manufacturing labels; (b) are not manufactured by the manufacturer indicated on the container; or (c) have a false tax stamp affixed to the container.

§16-9F-2. Prohibition of counterfeit cigarettes.

It shall be unlawful for any person to knowingly possess or sell counterfeit cigarettes, and all counterfeit cigarettes and the equipment, materials and personal property used in substantial connection with a knowing violation of this article may be seized and destroyed by any law- enforcement agency of this state.

§16-9F-3. Penalties.

(a) Any person who knowingly violates the provisions of this article with a total quantity of less than two cartons of cigarettes shall, for the first offense, be punished by a civil penalty of no more than one thousand dollars, and for a second or subsequent offense involving a total quantity of less than two cartons of cigarettes shall be punished by a civil penalty of no more than five thousand dollars and the revocation for a period of six months of any business held by the person.
(b) Any person who knowingly violates the provisions of this article with a total quantity of two or more cartons of cigarettes shall, for the first offense, be punished by a civil penalty of no more than two thousand dollars, and for a second or subsequent offense involving a total quantity of two or more cartons of cigarettes shall be punished by a civil penalty of no more than fifty thousand dollars and the revocation for a period of one year of any business registration certificate held by the person.

§16-9F-4. Enforcement.

  The attorney general, the prosecuting attorney for the county in which counterfeit cigarettes are found or any person who holds a valid permit under 26 U.S.C. § 5712 may bring an action in the circuit court of that county to prevent or restrain violations of this article by any person, or any person controlling that person."
  And,
  By amending the title of the bill to read as follows:
  H. B. 2748 - "A Bill to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto two new articles, designated articles nine-e and nine-f, all relating to restricting delivery sales of tobacco products and prohibiting possession of counterfeit cigarettes; defining terms; specifying requirements for verification of age and identity of purchasers; requiring notices to consumers; establishing requirements for shipping and shippers; establishing requirements for registration and reporting to the department of tax and revenue; requiring payment of taxes; providing for forfeiture of tobacco products and personal property; prohibiting the possession or sale of counterfeit cigarettes; and providing for civil and criminal penalties."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 669), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman and Mezzatesta.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2748) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
  H. B. 2771, Repealing exemptions from gasoline and special fuels excise tax for bulk sales to interstate motor carriers.
  The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
  Senators Prezioso, Chafin and Facemyer.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2818, Authorizing the county commissions of growth counties to include the transfer of development rights as part of a zoning ordinance.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto two new sections, designated sections three- mm and three-nn, all to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3mm. Transfer of development rights in growth counties.
  (a) In addition to all other powers and duties now conferred by law upon county commissions, if a county has been designated as a growth county, as that term is defined in section three, article twenty, chapter seven of this code, those county commissions, upon approval by a majority of the legal votes cast at an election as provided in section three-nn of this article, are hereby authorized to, as part of a county-wide zoning ordinance, which has been in effect for a minimum of five years, establish a program for the transfer of development rights, in order to:
  (1) Encourage the preservation of natural resources;
  (2) Protect the scenic, recreational and agricultural qualities of open lands; and
  (3) Facilitate orderly growth and development in the county.
  (b) The program for the transfer of development rights may provide for:
  (1) The voluntary transfer of the development rights permitted on any parcel of land to another parcel of land;
  (2) Restricting or prohibiting further development of the parcel from which development rights; and
  (3) Increasing the density or intensity of development of the parcel to which such rights are transferred.
  (c) The program for the transfer of development rights shall:
  (1) Designate a universal program for which development rights may be transferred from any parcel of land to any other parcel of land;
  (2) Provide that any rights transferred under this section be for ten years; and
  (3) Any rights purchased, but not used for development, revert to the original owner after ten years.
  (d) The county commission may not set a price for any development rights that are proposed to be transferred or received.
  (e) 'Transferable development rights' means an interest in real property that constitutes the right to develop and use property under the zoning ordinance which is made severable from the parcel to which the interest is appurtenant and transferable to another parcel of land for development and use in accordance with the zoning ordinance. Transferable development rights may be transferred by deed from the owner of the parcel from which the development rights are derived and upon the transfer shall vest in the grantee and be freely alienable. The zoning ordinance may provide for the method of transfer of these rights and may provide for the granting of easements and reasonable regulations to effect and control transfers and assure compliance with the provisions of the ordinance.
§7-1-3nn. Election on ordinance for program for transfer of development rights; form of ballots or ballot labels; procedure.
  (a) A county commission which has been designated as a growth county may submit a proposed ordinance to establish a program for the transfer of development rights pursuant to section three-mm of this article to the qualified voters residing within the county for approval or rejection at any regular primary or general election. Notice of the election shall be provided and the ballots shall be printed as set forth in subsection (b) of this section. The ordinance may be adopted if it is approved by a majority of the legal votes cast thereon in that county. If the ordinance is rejected, no election on the issue shall be held thereafter for a period of one hundred four weeks.
  (b) On the election ballots shall be printed the following:
  Shall the County Commission of (name of county) be authorized to adopt an ordinance to establish a program for the transfer of development rights in accordance with Section three-mm, Article one, Chapter seven of the Code of West Virginia?

  / /Yes

  / /No
  (c) If a majority of the legal votes cast upon the question be for the ordinance, the provisions of the ordinance become effective upon the date the results of the election are declared. If a majority of the legal votes cast upon the question be against the ordinance, the ordinance shall not take effect.
  (d) Subject to the provisions of subsection (c) of this section, an election permitted by this section may be conducted at any regular primary or general election as the county commission in its order submitting the same to a vote may designate.
  (e) Notice of an election pursuant to this section shall be given by publication of the order calling for a vote on the question as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication shall be the county in which the election is to be conducted.
  (f) Any election permitted by this section shall be held at the voting precincts established for holding primary or general elections. All of the provisions of the general election laws of this state applicable to primary or general elections not inconsistent with the provisions of this section shall apply to voting and elections authorized by this section."
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2818 - "A Bill to amend article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto two new sections, designated sections three-mm and three-nn, all relating to authorizing the county commissions of growth counties, by adoption of an ordinance, to establish programs for the transfer of property rights upon approval by a majority of the legal votes cast at a county-wide election; providing for a county-wide election on an ordinance for a program for transfer of development rights; form of ballots or ballot labels; election procedure."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 670), and there were--yeas 71, nays 27, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Armstead, Ashley, Border, Browning, Butcher, Calvert, Carmichael, Craig, Ellem, Evans, Faircloth, Hall, Howard, Hrutkay, Leggett, Louisos, Martin, Paxton, Perry, Schadler, Schoen, Smirl, Sobonya, Wakim, Walters, Webb and Yost.
  Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2818) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2828, Increasing certain county clerk, circuit clerk, assessor, sheriff, prosecuting attorney and magistrate court fees.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page three, by striking out everything following the enacting section and inserting in lieu thereof the following:
"CHAPTER 11. TAXATION.

ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.

§11-1C-7. Duties of county assessors; property to be appraised at fair market value; exceptions; initial equalization; valuation plan.

  (a) Except for property appraised by the state tax commissioner under section ten of this article and property appraised and assessed under article six of this chapter, all assessors shall, within three years of the approval of the county valuation plan required pursuant to this section, appraise all real and personal property in their jurisdiction at fair market value except for special valuation provided for farmland and managed timberland. They shall utilize the procedures and methodologies established by the property valuation training and procedures commission and the valuation system established by the tax commissioner.
  (b) In determining the fair market value of the property in their jurisdictions, assessors may use as an aid to valuation any information available on the character and values of such property including, but not limited to, the updated information found on any statewide electronic data processing system network established pursuant to section twenty-one, article one-a of this chapter. Valuations shall not be based exclusively on such statewide electronic data processing system network, and usage of the information on such files as an aid to proper valuation shall not constitute an implementation of the statewide mass reappraisal of property.
  (c) Before beginning the valuation process, each assessor shall develop a county valuation plan for using information currently available, for checking its accuracy and for correcting any errors found. The plan must be submitted to the tax commissioner on or before the first day of December, one thousand nine hundred ninety, for review and approval, and such plan must be revised as necessary and resubmitted every three years thereafter. Whenever a plan is submitted to the tax commissioner, a copy shall also be submitted to the county commission of that county and the property valuation training and procedures commission, and that county commission and the property valuation training and procedures commission may forward comments to the tax commissioner. The tax commissioner shall respond to any plan submitted or resubmitted within sixty days of its receipt. The valuation process shall not begin nor shall funds provided in section eight of this article be available until the plan has received approval by the tax commissioner: Provided, That any initial plan that has not received approval by the commissioner prior to the first day of May, one thousand nine hundred ninety-one, shall be submitted on or by such date to the valuation commission for resolution prior to the first day of July, one thousand nine hundred ninety- one, by which date all counties shall have an approved valuation plan in effect.
  (d) Upon approval of the valuation plan, the assessor shall immediately begin implementation of the valuation process. Any change in value discovered subsequent to the certification of values by the assessor to the county commission, acting as the board of equalization and review, in any given year shall be placed upon the property books for the next certification of values: Provided, That notwithstanding any other provision of this code to the contrary, the property valuation training and procedures commission may authorize the tax commissioner to approve a valuation plan and the board of public works to submit such a plan which would permit the placement of proportionately uniform percentage changes in values on the books that estimate the percentage difference between the current assessed value and sixty percent of the fair market value for classes or identified sub-classes of property and distribute the change between the two tax years preceding the tax year beginning on the first day of July, one thousand nine hundred ninety-three. This procedure may be used in lieu of placing individual values on the books at sixty percent of value as discovered, or may be in addition to such valuation. If such procedure is adopted by a county, then property whose reevaluation is the responsibility of the board of public works and the state tax commissioner shall have its values estimated and placed on the books in like manner. Such estimates shall be based on the best information obtained by the assessor, the board of public works and the tax commissioner, and the changes shall move those values substantially towards sixty percent of fair market value, such sixty percent to be reached on or before the first day of July, one thousand nine hundred ninety-three.
  (e) (1) The county assessor shall establish and maintain as official records of the county tax maps of the entire county drawn to scale or aerial maps, which maps shall indicate all property and lot lines, set forth dimensions or areas, indicate whether the land is improved, and identify the respective parcels or lots by a system of numbers or symbols and numbers, whereby the ownership of such parcels and lots can be ascertained by reference to the appropriate records: Provided, That all such records shall be established and maintained and the sale or reproduction of microfilm, photography and maps shall be in accordance with legislative rules promulgated by the commission.
__(2) Upon resolution of a county commission approving the increase of fee, the following fees apply in addition to any fee charged by the assessor or the map sales unit of the property tax division of the department of revenue for the sale or reproduction of microfilm, photography and maps pursuant to the legislative rules referenced in subdivision (1) of this subsection:
__(A) For a full map sheet, an additional fee of three dollars per copy shall be charged, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
__(B) For a parcel reproduction on 8 ½ x 11" or 8 ½ x 14" paper, an additional fee of one dollar and fifty cents per copy shall be charged, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code; and
__(C) For all other map sizes, an additional fee of two dollars per copy shall be charged, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (f) Willing and knowing refusal of the assessor or the county commission to comply with and effect the provisions of this article, or to correct any deficiencies as may be ordered by the tax commissioner with the concurrence of the valuation commission under any authority granted pursuant to this article or other provisions of this code, shall constitute grounds for removal from office. Such removal may be appealed to the circuit court.
CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.

ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE AND UNAPPROPRIATED LANDS.

§11A-3-26. Certificate of redemption issued by clerk; recordation; disposition of redemption money.

  (a) Upon payment of the sum necessary to redeem, the clerk shall execute a certificate of redemption in duplicate, which certificate shall specify the real estate redeemed, or the part thereof or the interest therein, as the case may be, together with any changes in respect thereto which were made in the landbook and in the record of delinquent lands; shall specify the year or years for which payment was made; and shall state that it is a receipt for the money paid and a release of the tax lien on the real estate redeemed. The original certificate shall be retained in the files in the clerk's office and one copy shall be delivered to the person redeeming. The clerk shall make any necessary changes in his record of delinquent lands and shall note the fact of redemption on such record, and shall record the certificate in a separate volume provided for the purpose.
  Upon resolution of a county commission approving the increase of fee, the fee for issuing the certificate of redemption shall be ~~twenty-five~~ thirty-five dollars, of which ten dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (b) All certificates of redemption issued by the clerk in each year shall be numbered consecutively and shall be filed by the clerk in numerical order. Reference to the year and number of the certificate shall be included in the notation of redemption required herein. No fee shall be charged by the clerk for any recordation, filing or notation required by this section.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-1. Costs in civil actions.
  Upon resolution of a county commission approving the increase of fee, the following costs shall be charged in magistrate courts in civil actions and shall be collected in advance:
  (a) For filing and trying any civil action and for all services connected therewith, but excluding services regarding enforcement of judgment, the following amounts dependent upon the amount of damages sought in the complaint:
  Where the action is for five hundred dollars or less$~~25.00~~ 30.00
  Where the action is for more than five hundred dollars but not more than one thousand dollars$~~30.00~~ 35.00
  Where the action is for more than one thousand dollars but not more than two thousand dollars$~~35.00~~ 40.00
  Where the action is for more than two thousand dollars $~~45.00~~ 50.00
  Where the action seeks relief other than money damages $~~25.00~~ 30.00
__~~On and after the first day of July, one thousand nine hundred ninety-six,~~ Five dollars from each of the filing fees listed above ~~will~~ shall be deposited in the court security fund created by the provisions of section fourteen, article three, chapter fifty-one of this code.
  On or after approval of a county commission to increase fees dedicated to the courthouse facilities improvement fund, five dollars from each of the filing fees listed above shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (b) For each service regarding enforcement of a judgment including execution, suggestion, garnishment and suggestee execution$5.00
  (c) For each bond filed in a case$1.00
  (d) For taking deposition of witness for each hour or portion thereof$ 1.00
  (e) For taking and certifying acknowledgment of a deed or other writing or taking oath upon an affidavit$ .50
  (f) For mailing any matter required or provided by law to be mailed by certified or registered mail with return receipt$1.00
  Costs incurred in a civil action shall be reflected in any judgment rendered thereon. The provisions of section one, article two, chapter fifty-nine of this code, relating to the payment of costs by poor persons, shall be applicable to all costs in civil actions.
§50-3-2. Costs in criminal proceedings.
  (a) In each criminal case before a magistrate court in which the defendant is convicted, whether by plea or at trial, there is imposed, in addition to other costs, fines, forfeitures or penalties as may be allowed by law: (1) Costs in the amount of ~~fifty-five~~ sixty dollars. Upon resolution of a county commission approving the increase of fee, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code; and (2) an amount equal to the one-day per diem provided for in subsection (h), section ten, article twenty, chapter thirty-one of this code. A magistrate may not collect costs in advance. Notwithstanding any other provision of this code, a person liable for fines and court costs in a criminal proceeding in which the defendant is confined in a jail or prison and not participating in a work release program shall not be held liable for the fines and court costs until ninety days after completion of the term in jail or prison. A magistrate court shall deposit five dollars from each of the criminal proceedings fees collected pursuant to this section in the court security fund created in section fourteen, article three, chapter fifty-one of this code. A magistrate court shall, on or before the tenth day of the month following the month in which the fees imposed in this section were collected, remit an amount equal to the one-day per diem provided for in subsection (h), section ten, article twenty, chapter thirty-one of this code from each of the criminal proceedings in which the fees specified in this section were collected to the magistrate court clerk or if there is no magistrate court clerk to the clerk of the circuit, together with information as may be required by the rules of the supreme court of appeals and the rules of the office of chief inspector. These moneys are paid to the sheriff who shall distribute the moneys solely in accordance with the provisions of section fifteen, article five, chapter seven of this code. Amendments made to this section during the regular session of the Legislature, two thousand one, are effective after the thirtieth day of June, two thousand one.
  (b) A magistrate shall assess costs in the amount of two dollars and fifty cents for issuing a sheep warrant and the appointment and swearing appraisers and docketing the proceedings.
  (c) In each criminal case which must be tried by the circuit court but in which a magistrate renders some service, costs in the amount of ten dollars shall be imposed by the magistrate court and is certified to the clerk of the circuit court in accordance with the provisions of section six, article five, chapter sixty-two of this code.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-10. Fees to be charged by clerk of county commission.
  For the purpose of this section, the word 'page' is defined as being a paper writing of not more than legal size, 8 ½" x 14".
  The clerk of the county commission shall charge and collect the following fees:
  (a) When a writing is admitted to record, for receiving proof of acknowledgment thereof, entering an order in connection therewith, endorsing clerk's certificate of recordation thereon and indexing in a proper index, where the writing is a:
  (1) Deed of conveyance (with or without a plat), trust deed, fixture filing or security agreement concerning real estate lease$10.00
  (2) Financing, continuation, termination or other statement or writing permitted to be filed
under chapter forty-six of this code$10.00
  (3) Plat or map (with no deed of conveyance)$10.00
  (4) Service discharge record No Charge
  (5) Any document or writing other than those referenced in subdivisions (1), (2), (3) and (4) of this subsection$5.00
  (6) If any document or writing contains more than five pages, for each additional page..$1.00
  (b) For administering any oath other than oaths by officers and employees of the state, political subdivisions of the state, or a public or quasi public entity of the state or a political subdivision of the state, taken in his or her official capacity$5.00
  (c)~~(1)~~ Upon resolution of a county commission approving the increase of fee, for issuance of marriage license and other duties pertaining to the marriage license (including preparation of the application, administrating the oath, registering and recording the license, mailing acknowledgment of minister's return to one of the licensees and notification to a licensee after sixty days of the nonreceipt of the minister's return)$~~25.00~~ 35.00
__~~(2)~~ (1) One dollar of the marriage license fee received pursuant to this subsection shall be paid by the county clerk into the state treasury as a state registration fee in the same manner that license taxes are paid into the treasury under article twelve, chapter eleven of this code;
  ~~(3)~~ (2) Fifteen dollars of the marriage license fee received pursuant to this subsection shall be paid by the county clerk into the state treasury for the family protection shelter support act in the same manner that license taxes are paid into the treasury under article twelve, chapter eleven of this code;
  (3) Upon resolution of a county commission approving the increase of fee, ten dollars of the marriage license fee received pursuant to this subsection shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (d) (1) For a copy of any writing or document, if it is not otherwise provided for$1.50
  (2) If the copy of the writing or document contains more than two pages, for each additional page$1.00
  (3) For annexing the seal of the commission or clerk to any paper$1.00
  (4) For a certified copy of a birth certificate, death certificate or marriage license$5.00
§59-1-11. Fees to be charged by clerk of circuit court.
  (a) The clerk of a circuit court shall charge and collect for services rendered as such clerk the following fees, and such fees shall be paid in advance by the parties for whom such services are to be rendered:
  (1) For instituting any civil action under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals, or any other action, cause, suit or proceeding, ~~eighty-five~~ one hundred fifteen dollars, of which thirty dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
  (2) ~~Beginning on and after the first day of January, two thousand two,~~ Upon resolution of a county commission approving the increase of fee, for instituting an action for medical professional liability, two hundred ~~fifty~~ sixty dollars, of which ten dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty- nine of this code;
  (3) Beginning on and after the first day of July, one thousand nine hundred ninety-nine, for instituting an action for divorce, separate maintenance or annulment, one hundred thirty-five dollars;
(4) For petitioning for the modification of an order involving child custody, child visitation, child support or spousal support, eighty-five dollars; and
  (5) For petitioning for an expedited modification of a child support order, thirty-five dollars.
  (b) In addition to the foregoing fees, the following fees shall likewise be charged and collected:
  (1) For preparing an abstract of judgment, five dollars;
  (2) For any transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office, for each page, fifty cents;
  (3) For action on suggestion, ten dollars;
  (4) For issuing an execution, ten dollars;
  (5) For issuing or renewing a suggestee execution, including copies, postage, registered or certified mail fees and the fee provided by section four, article five-a, chapter thirty-eight of this code, three dollars;
  (6) For vacation or modification of a suggestee execution, one dollar;
  (7) For docketing and issuing an execution on a transcript of judgment from magistrate's court, three dollars;
  (8) Upon resolution of a county commission approving the increase of fee, for arranging the papers in a certified question, writ of error, appeal or removal to any other court, ~~five~~ ten dollars, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
  (9) For postage and express and for sending or receiving decrees, orders or records, by mail or express, three times the amount of the postage or express charges;
  (10) For each subpoena, on the part of either plaintiff or defendant, to be paid by the party requesting the same, fifty cents; ~~and~~
  (11) For additional service (plaintiff or appellant) where any case remains on the docket longer than three years, for each additional year or part year, twenty dollars;
  (12) Upon resolution of a county commission approving the increase of fee, for processing of criminal bond, twenty-five dollars per bond, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code; and
__(13) Upon resolution of a county commission approving the increase of fee, for processing of bail piece, ten dollars per bail piece, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (c) The clerk shall tax the following fees for services in any criminal case against any defendant convicted in such court:
  (1) In the case of any misdemeanor, fifty-five dollars; ~~and~~
  (2) Upon resolution of a county commission approving the increase of fee, in the case of any felony, ~~sixty-five~~ seventy-five dollars, of which ten dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty- nine of this code;
  (d) No such clerk shall be required to handle or accept for disbursement any fees, cost or amounts, of any other officer or party not payable into the county treasury, except it be on order of the court or in compliance with the provisions of law governing such fees, costs or accounts.
§59-1-28a. Disposition of filing fees in civil actions and fees for services in criminal cases.
  (a) Except for those payments to be made from amounts equaling filing fees received for the institution of divorce actions as prescribed in subsection (b) of this section, and except for those payments to be made from amounts equaling filing fees received for the institution of actions for divorce, separate maintenance and annulment as prescribed in subsection (b) of this section, for each civil action instituted under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals, or any other action, cause, suit or proceeding in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts described in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting the action as follows:
  (1) Into the regional jail and correctional facility authority fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of sixty dollars; and
  (2) Into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
  (b) For each action for divorce, separate maintenance or annulment instituted in the circuit court, the clerk of the court shall, at the end of each month, report to the supreme court of appeals, the number of actions filed by persons unable to pay, and pay into the funds or accounts in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting the divorce action as follows:
  (1) Into the regional jail and correctional facility authority fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of ten dollars;
  (2) Into the special revenue account of the state treasury, established pursuant to section six hundred four, article two, chapter forty-eight of this code, an amount of thirty dollars;
  (3) Into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code, an amount of seventy dollars; and
  (4) Into the court security fund in the state treasury, established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
  (c) Notwithstanding any provision of subsection (a) or (b) of this section to the contrary, the clerk of the court shall, at the end of each month, pay into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount equal to the amount of every fee received for petitioning for the modification of an order involving child custody, child visitation, child support or spousal support as determined by subdivision (3), subsection (a), section eleven of this article and for petitioning for an expedited modification of a child support order as provided in subdivision (4), subsection (a), section eleven of this article.
  (d) The clerk of the court from which a protective order is issued shall, at the end of each month, pay into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount equal to every fee received pursuant to the provisions of section five hundred eight, article twenty-seven, chapter forty-eight of this code.
  (e) The clerk of each circuit court shall, at the end of each month, pay into the regional jail and correctional facility authority fund in the state treasury an amount equal to forty dollars of every fee for service received in any criminal case against any respondent convicted in such court and shall pay an amount equal to five dollars of every such fee into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code.
  (f) Beginning the first day of January, two thousand two, the clerk of the circuit court shall, at the end of each month, pay into the medical liability fund established under article twelve-b, chapter twenty-nine of this code an amount equal to one hundred sixty-five dollars of every filing fee received for instituting a medical professional liability action.
  (g) Upon resolution of a county commission approving the increase of fee, the clerk of the circuit court shall, at the end of each month, pay into the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code, those amounts received by the clerk which are dedicated for deposit in the fund.
ARTICLE 2. COSTS GENERALLY.
§59-2-17. Fees of prosecuting attorney.
  The clerk shall include in the costs, for fees of the prosecuting attorney, the following:
  (a) Upon resolution of a county commission approving the increase of fee, in cases of misdemeanor, or an action upon a bond for a violation of the license laws, ~~ten~~ fifteen dollars, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
  (b) In a case of bastardy, ten dollars;
  (c) In a suit or proceeding upon a forfeited recognizance upon behalf of the state, five percent upon the amount recovered and paid into the treasury;
  (d) Upon resolution of a county commission approving the increase of fee, in cases of felony, ~~thirty~~ thirty-five dollars, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
  (e) In any other case of the state, if a different fee is not prescribed, ten dollars.
  Such fees shall be collected and accounted for as provided in article one of this chapter, but shall not in any case be paid out of the county or state treasury.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 7. DANGEROUS WEAPONS.

§61-7-4. License to carry deadly weapons; how obtained.
  (a) Except as provided in subsection (h) of this section, any person desiring to obtain a state license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for ~~such~~ a license, and shall pay to the sheriff, at the time of application, and upon resolution of a county commission approving the increase of fee, a fee of ~~sixty~~ seventy-five dollars, of which fifteen dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may only be issued for pistols or revolvers. Each applicant shall file with the sheriff, a complete application, as prepared by the superintendent of the West Virginia state police, in writing, duly verified, which sets forth only the following licensing requirements:
  (1) The applicant's full name, date of birth, social security number and a description of the applicant's physical features;
  (2) That, on the date the application is made, the applicant is a bona fide resident of this state and of the county in which the application is made and has a valid driver's license or other state- issued photo identification showing such residence;
  (3) That the applicant is twenty-one years of age or older: Provided, That any individual who is less than twenty-one years of age and possesses a properly issued concealed weapons license as of the effective date of this article shall be licensed to maintain his or her concealed weapons license notwithstanding the provisions of this section requiring new applicants to be at least twenty- one years of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older that he or she is required to carry a concealed weapon as a condition for employment, and presents satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other conditions of this section. Upon discontinuance of employment that requires the concealed weapons license, if the individual issued the license is not yet twenty-one years of age, then the individual issued the license is no longer eligible and must return his or her license to the issuing sheriff;
  (4) That the applicant is not addicted to alcohol, a controlled substance or a drug, and is not an unlawful user thereof;
  (5) That the applicant has not been convicted of a felony or of an act of violence involving the misuse of a deadly weapon;
  (6) That the applicant has no criminal charges pending and is not currently serving a sentence of confinement, parole, probation or other court-ordered supervision, because of a charge of domestic violence as provided for in section twenty-eight, article two of this chapter, or is the subject of a restraining order as a result of a domestic violence act as defined in that section, or because of a verified petition of domestic violence as provided for in article two-a, chapter forty- eight of this code or is subject to a protective order as provided for in that article;
  (7) That the applicant is physically and mentally competent to carry such weapon;
  (8) That the applicant has not been adjudicated to be mentally incompetent;
  (9) That the applicant has qualified under the minimum requirements set forth in subsection (d) of this section for handling and firing such weapon: Provided, That this requirement shall be waived in the case of a renewal applicant who has previously qualified;
  (10) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct an investigation relative to the information contained in the application.
  (b) The sheriff shall conduct an investigation which shall verify that the information required in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section are true and correct.
  (c) The ~~sixty dollar~~ application fee and any fees for replacement of lost or stolen licenses received by the sheriff shall be deposited by the sheriff into a concealed weapons license administration fund. Such fund shall be administered by the sheriff and shall take the form of an interest bearing account with any interest earned to be compounded to the fund. Any funds deposited in this concealed weapon license administration fund are to be expended by the sheriff to pay for the costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end of each fiscal year may be expended for other law-enforcement purposes or operating needs of the sheriff's office, as the sheriff may deem appropriate.
  (d) All persons applying for a license must complete a training course in handling and firing a handgun. The successful completion of any of the following courses fulfills this training requirement:
  (1) Any official national rifle association handgun safety or training course;
  (2) Any handgun safety or training course or class available to the general public offered by an official law-enforcement organization, community college, junior college, college or private or public institution or organization or handgun training school utilizing instructors duly certified by such institution;
  (3) Any handgun training or safety course or class conducted by a handgun instructor certified as such by the state or by the national rifle association;
  (4) Any handgun training or safety course or class conducted by any branch of the United States military, reserve or national guard.
  A photocopy of a certificate of completion of any of the courses or classes or an affidavit from the instructor, school, club, organization or group that conducted or taught said course or class attesting to the successful completion of the course or class by the applicant or a copy of any document which shows successful completion of the course or class shall constitute evidence of qualification under this section.
  (e) All concealed weapons license applications must be notarized by a notary public duly licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the application constitutes false swearing and is punishable under the provisions of section two, article five, chapter sixty-one of this code.
  (f) If the information in the application is found to be true and correct, the sheriff shall issue a license. The sheriff shall issue or deny the license within forty-five days after the application is filed if all required background checks authorized by this section are completed.
  (g) Before any approved license shall be issued or become effective, the applicant shall pay to the sheriff a fee in the amount of fifteen dollars which the sheriff shall forward to the superintendent of the West Virginia state police within thirty days of receipt. Any such license shall be valid for five years throughout the state, unless sooner revoked.
  (h) All persons holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety-five, shall continue to hold a valid concealed weapons license until his or her license expires or is revoked as provided for in this article: Provided, That all reapplication fees shall be waived for applications received by the first day of January, one thousand nine hundred ninety-seven, for any person holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety- five, which contains use restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses reissued pursuant to this subsection will be issued for the time period of the original license.
  (i) Each license shall contain the full name, social security number and address of the licensee and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable for carrying in a wallet, and such license card is deemed a license for the purposes of this section.
  (j) The superintendent of the West Virginia state police shall prepare uniform applications for licenses and license cards showing that such license has been granted and shall do any other act required to be done to protect the state and see to the enforcement of this section.
  (k) In the event an application is denied, the specific reasons for the denial shall be stated by the sheriff denying the application. Any person denied a license may file, in the circuit court of the county in which the application was made, a petition seeking review of the denial. Such petition shall be filed within thirty days of the denial. The court shall then determine whether the applicant is entitled to the issuance of a license under the criteria set forth in this section. The applicant may be represented by counsel, but in no case shall the court be required to appoint counsel for an applicant. The final order of the court shall include the court's findings of fact and conclusions of law. If the final order upholds the denial, the applicant may file an appeal in accordance with the rules of appellate procedure of the supreme court of appeals.
  (l) In the event a license is lost or destroyed, the person to whom the license was issued may obtain a duplicate or substitute license for a fee of five dollars by filing a notarized statement with the sheriff indicating that the license has been lost or destroyed.
  (m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the superintendent of the West Virginia state police a certified copy of the approved application. It shall be the duty of the sheriff to furnish to the superintendent of the West Virginia state police at any time so requested a certified list of all such licenses issued in the county. The superintendent of the West Virginia state police shall maintain a registry of all persons who have been issued concealed weapons licenses.
  (n) All licensees must carry with them a state-issued photo identification card with the concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who fails to have in his or her possession a state-issued photo identification card and a current concealed weapons license while carrying a concealed weapon shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty or more than two hundred dollars for each offense.
  (o) The sheriff shall deny any application or revoke any existing license upon determination that any of the licensing application requirements established in this section have been violated by the licensee.
  (p) No person who is engaged in the receipt, review or in the issuance or revocation of a concealed weapon license shall incur any civil liability as the result of the lawful performance of his or her duties under this article.
  (q) Notwithstanding the provisions of subsection (a) of this section, with respect to application by a former law-enforcement officer honorably retired from agencies governed by article fourteen, chapter seven; article fourteen, chapter eight; article two, chapter fifteen; and article seven, chapter twenty of this code, an honorably retired officer is exempt from payment of fees and costs as otherwise required by this section, and the application of the honorably retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements of this section and has the approval of the appropriate chief law-enforcement officer."
  And,
  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2828 - "A Bill to amend and reenact section seven, article one-c, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section twenty-six, article three, chapter eleven-a of said code; to amend and reenact sections one and two, article three, chapter fifty of said code; to amend and reenact sections ten, eleven and twenty-eight-a, article one, chapter fifty-nine of said code; to amend and reenact section seventeen, article two of said chapter; and to amend and reenact section four, article seven, chapter sixty-one of said code, all relating to increasing certain county clerk, circuit clerk, assessor, sheriff, prosecuting attorney and magistrate court fees by resolution of county commission; and dedicating those fee increases to the courthouse facilities improvement fund."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment as follows:
  On page one of the Senate amendment, following the enacting section, by striking out the remainder of the amendment and inserting in lieu thereof the following:
"CHAPTER 11. TAXATION.
ARTICLE 1C. FAIR AND EQUITABLE PROPERTY VALUATION.

§11-1C-7. Duties of county assessors; property to be appraised at fair market value; exceptions; initial equalization; valuation plan.

  (a) Except for property appraised by the state tax commissioner under section ten of this article and property appraised and assessed under article six of this chapter, all assessors shall, within three years of the approval of the county valuation plan required pursuant to this section, appraise all real and personal property in their jurisdiction at fair market value except for special valuation provided for farmland and managed timberland. They shall utilize the procedures and methodologies established by the property valuation training and procedures commission and the valuation system established by the tax commissioner.
  (b) In determining the fair market value of the property in their jurisdictions, assessors may use as an aid to valuation any information available on the character and values of such property including, but not limited to, the updated information found on any statewide electronic data processing system network established pursuant to section twenty-one, article one-a of this chapter. Valuations shall not be based exclusively on such statewide electronic data processing system network, and usage of the information on such files as an aid to proper valuation shall not constitute an implementation of the statewide mass reappraisal of property.
  (c) Before beginning the valuation process, each assessor shall develop a county valuation plan for using information currently available, for checking its accuracy and for correcting any errors found. The plan must be submitted to the tax commissioner on or before the first day of December, one thousand nine hundred ninety, for review and approval, and such plan must be revised as necessary and resubmitted every three years thereafter. Whenever a plan is submitted to the tax commissioner, a copy shall also be submitted to the county commission of that county and the property valuation training and procedures commission, and that county commission and the property valuation training and procedures commission may forward comments to the tax commissioner. The tax commissioner shall respond to any plan submitted or resubmitted within sixty days of its receipt. The valuation process shall not begin nor shall funds provided in section eight of this article be available until the plan has received approval by the tax commissioner: Provided, That any initial plan that has not received approval by the commissioner prior to the first day of May, one thousand nine hundred ninety-one, shall be submitted on or by such date to the valuation commission for resolution prior to the first day of July, one thousand nine hundred ninety-one, by which date all counties shall have an approved valuation plan in effect.
  (d) Upon approval of the valuation plan, the assessor shall immediately begin implementation of the valuation process. Any change in value discovered subsequent to the certification of values by the assessor to the county commission, acting as the board of equalization and review, in any given year shall be placed upon the property books for the next certification of values: Provided, That notwithstanding any other provision of this code to the contrary, the property valuation training and procedures commission may authorize the tax commissioner to approve a valuation plan and the board of public works to submit such a plan which would permit the placement of proportionately uniform percentage changes in values on the books that estimate the percentage difference between the current assessed value and sixty percent of the fair market value for classes or identified sub-classes of property and distribute the change between the two tax years preceding the tax year beginning on the first day of July, one thousand nine hundred ninety-three. This procedure may be used in lieu of placing individual values on the books at sixty percent of value as discovered, or may be in addition to such valuation. If such procedure is adopted by a county, then property whose reevaluation is the responsibility of the board of public works and the state tax commissioner shall have its values estimated and placed on the books in like manner. Such estimates shall be based on the best information obtained by the assessor, the board of public works and the tax commissioner, and the changes shall move those values substantially towards sixty percent of fair market value, such sixty percent to be reached on or before the first day of July, one thousand nine hundred ninety-three.
  (e) (1) The county assessor shall establish and maintain as official records of the county tax maps of the entire county drawn to scale or aerial maps, which maps shall indicate all property and lot lines, set forth dimensions or areas, indicate whether the land is improved, and identify the respective parcels or lots by a system of numbers or symbols and numbers, whereby the ownership of such parcels and lots can be ascertained by reference to the appropriate records: Provided, That all such records shall be established and maintained and the sale or reproduction of microfilm, photography and maps shall be in accordance with legislative rules promulgated by the commission.
__(2) The following fees apply in addition to any fee charged by the assessor or the map sales unit of the property tax division of the department of revenue for the sale or reproduction of microfilm, photography and maps pursuant to the legislative rules referenced in subdivision (1) of this subsection:
__(A) For a full map sheet, an additional fee of three dollars per copy shall be charged, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
__(B) For a parcel reproduction on 8 ½ x 11" or 8 ½ x 14" paper, an additional fee of one dollar and fifty cents per copy shall be charged, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code; and
__(C) For all other map sizes, an additional fee of two dollars per copy shall be charged, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (f) Willing and knowing refusal of the assessor or the county commission to comply with and effect the provisions of this article, or to correct any deficiencies as may be ordered by the tax commissioner with the concurrence of the valuation commission under any authority granted pursuant to this article or other provisions of this code, shall constitute grounds for removal from office. Such removal may be appealed to the circuit court.
CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.
ARTICLE 3. SALE OF TAX LIENS AND NONENTERED, ESCHEATED AND WASTE AND UNAPPROPRIATED LANDS.
§11A-3-26. Certificate of redemption issued by clerk; recordation; disposition of redemption money.
  (a) Upon payment of the sum necessary to redeem, the clerk shall execute a certificate of redemption in duplicate, which certificate shall specify the real estate redeemed, or the part thereof or the interest therein, as the case may be, together with any changes in respect thereto which were made in the landbook and in the record of delinquent lands; shall specify the year or years for which payment was made; and shall state that it is a receipt for the money paid and a release of the tax lien on the real estate redeemed. The original certificate shall be retained in the files in the clerk's office and one copy shall be delivered to the person redeeming. The clerk shall make any necessary changes in his record of delinquent lands and shall note the fact of redemption on such record, and shall record the certificate in a separate volume provided for the purpose.
  The fee for issuing the certificate of redemption shall be ~~twenty-five~~ thirty-five dollars, of which ten dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
__(b) All certificates of redemption issued by the clerk in each year shall be numbered consecutively and shall be filed by the clerk in numerical order. Reference to the year and number of the certificate shall be included in the notation of redemption required herein. No fee shall be charged by the clerk for any recordation, filing or notation required by this section.
CHAPTER 50. MAGISTRATE COURTS.
ARTICLE 3. COSTS, FINES AND RECORDS.
§50-3-1. Costs in civil actions.
  The following costs shall be charged in magistrate courts in civil actions and shall be collected in advance:
  (a) For filing and trying any civil action and for all services connected therewith, but excluding services regarding enforcement of judgment, the following amounts dependent upon the amount of damages sought in the complaint:
  Where the action is for five hundred dollars or less....................................$~~25.00~~ 30.00
  Where the action is for more than five hundred dollars but not more than one thousand dollars...................................$~~30.00~~ 35.00
  Where the action is for more than one thousand dollars but not more than two thousand dollars...................................$~~35.00~~ 40.00
  Where the action is for more than two thousand dollars...................................$~~45.00~~ 50.00
  Where the action seeks relief other than money damages.................................$~~25.00~~ 30.00
__~~On and after the first day of July, one thousand nine hundred ninety-six,~~ Five dollars from each of the filing fees listed above ~~will~~ shall be deposited in the court security fund created by the provisions of section fourteen, article three, chapter fifty-one of this code.
  Five dollars from each of the filing fees listed above shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (b) For each service regarding enforcement of a judgment including execution, suggestion, garnishment and suggestee execution...................................$5.00
  (c) For each bond filed in a case...................$1.00
  (d) For taking deposition of witness for each hour or portion thereof.........................$ 1.00
  (e) For taking and certifying acknowledgment of a deed or other writing or taking oath upon an affidavit.........................................$ .50
  (f) For mailing any matter required or provided by law to be mailed by certified or registered mail with return receipt.......................$1.00
  Costs incurred in a civil action shall be reflected in any judgment rendered thereon. The provisions of section one, article two, chapter fifty-nine of this code, relating to the payment of costs by poor persons, shall be applicable to all costs in civil actions.
§50-3-2. Costs in criminal proceedings.
  (a) In each criminal case before a magistrate court in which the defendant is convicted, whether by plea or at trial, there is imposed, in addition to other costs, fines, forfeitures or penalties as may be allowed by law: (1) Costs in the amount of ~~fifty-five~~ sixty dollars, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code; and (2) an amount equal to the one-day per diem provided for in subsection (h), section ten, article twenty, chapter thirty-one of this code. A magistrate may not collect costs in advance. Notwithstanding any other provision of this code, a person liable for fines and court costs in a criminal proceeding in which the defendant is confined in a jail or prison and not participating in a work release program shall not be held liable for the fines and court costs until ninety days after completion of the term in jail or prison. A magistrate court shall deposit five dollars from each of the criminal proceedings fees collected pursuant to this section in the court security fund created in section fourteen, article three, chapter fifty-one of this code. A magistrate court shall, on or before the tenth day of the month following the month in which the fees imposed in this section were collected, remit an amount equal to the one-day per diem provided for in subsection (h), section ten, article twenty, chapter thirty-one of this code from each of the criminal proceedings in which the fees specified in this section were collected to the magistrate court clerk or if there is no magistrate court clerk to the clerk of the circuit, together with information as may be required by the rules of the supreme court of appeals and the rules of the office of chief inspector. These moneys are paid to the sheriff who shall distribute the moneys solely in accordance with the provisions of section fifteen, article five, chapter seven of this code. Amendments made to this section during the regular session of the Legislature, two thousand one, are effective after the thirtieth day of June, two thousand one.
  (b) A magistrate shall assess costs in the amount of two dollars and fifty cents for issuing a sheep warrant and the appointment and swearing appraisers and docketing the proceedings.
  (c) In each criminal case which must be tried by the circuit court but in which a magistrate renders some service, costs in the amount of ten dollars shall be imposed by the magistrate court and is certified to the clerk of the circuit court in accordance with the provisions of section six, article five, chapter sixty-two of this code.
CHAPTER 59. FEES, ALLOWANCES AND COSTS;
NEWSPAPERS; LEGAL ADVERTISEMENTS.
ARTICLE 1. FEES AND ALLOWANCES.
§59-1-10. Fees to be charged by clerk of county commission.
  For the purpose of this section, the word "page" is defined as being a paper writing of not more than legal size, 8 ½" x 14".
  The clerk of the county commission shall charge and collect the following fees:
  (a) When a writing is admitted to record, for receiving proof of acknowledgment thereof, entering an order in connection therewith, endorsing clerk's certificate of recordation thereon and indexing in a proper index, where the writing is a:
  (1) Deed of conveyance (with or without a plat), trust deed, fixture filing or security
agreement concerning real estate lease...................$10.00
  (2) Financing, continuation, termination or other statement or writing permitted to be filed
under chapter forty-six of this code$10.00
  (3) Plat or map (with no deed of conveyance)$10.00
  (4) Service discharge record No Charge
  (5) Any document or writing other than those referenced in subdivisions (1), (2), (3) and (4)
of this subsection........................................$5.00
  (6) If any document or writing contains more than five pages, for each additional page.............$1.00
  (b) For administering any oath other than oaths by officers and employees of the state, political subdivisions of the state, or a public or quasi public entity of the state or a political subdivision of the state, taken in his or her official capacity.........................................$5.00
  (c)~~(1)~~ For issuance of marriage license and other duties pertaining to the marriage license
(including preparation of the application, administrating the oath, registering and recording the license, mailing acknowledgment of minister's return to one of the licensees and notification to a licensee after sixty days of the nonreceipt of the minister's return)$~~25.00~~ 35.00
__~~(2)~~ (1) One dollar of the marriage license fee received pursuant to this subsection shall be paid by the county clerk into the state treasury as a state registration fee in the same manner that license taxes are paid into the treasury under article twelve, chapter eleven of this code;
  ~~(3)~~ (2) Fifteen dollars of the marriage license fee received pursuant to this subsection shall be paid by the county clerk into the state treasury for the family protection shelter support act in the same manner that license taxes are paid into the treasury under article twelve, chapter eleven of this code;
  (3) Ten dollars of the marriage license fee received pursuant to this subsection shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (d) (1) For a copy of any writing or document, if it is not otherwise provided for$1.50
  (2) If the copy of the writing or document contains more than two pages, for each additional page......................................................$1.00
  (3) For annexing the seal of the commission or clerk to any paper.....................................$1.00
  (4) For a certified copy of a birth certificate, death certificate or marriage license.....................$5.00
§59-1-11. Fees to be charged by clerk of circuit court.
  (a) The clerk of a circuit court shall charge and collect for services rendered as such clerk the following fees, and such fees shall be paid in advance by the parties for whom such services are to be rendered:
  (1) For instituting any civil action under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals, or any other action, cause, suit or proceeding, ~~eighty-five~~ one hundred twenty-five dollars, of which thirty dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code, and ten dollars shall be deposited in the special revenue account created in section six hundred three, article twenty-six, chapter forty-eight of this code to provide legal services for domestic violence victims;
  (2) Beginning on and after the first day of January, two thousand two, for instituting an action for medical professional liability, two hundred ~~fifty~~ sixty dollars, of which ten dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
  (3) Beginning on and after the first day of July, one thousand nine hundred ninety-nine, for instituting an action for divorce, separate maintenance or annulment, one hundred thirty-five dollars;
(4) For petitioning for the modification of an order involving child custody, child visitation, child support or spousal support, eighty-five dollars; and
  (5) For petitioning for an expedited modification of a child support order, thirty-five dollars.
  (b) In addition to the foregoing fees, the following fees shall likewise be charged and collected:
  (1) For preparing an abstract of judgment, five dollars;
  (2) For any transcript, copy or paper made by the clerk for use in any other court or otherwise to go out of the office, for each page, fifty cents;
  (3) For action on suggestion, ten dollars;
  (4) For issuing an execution, ten dollars;
  (5) For issuing or renewing a suggestee execution, including copies, postage, registered or certified mail fees and the fee provided by section four, article five-a, chapter thirty-eight of this code, three dollars;
  (6) For vacation or modification of a suggestee execution, one dollar;
  (7) For docketing and issuing an execution on a transcript of judgment from magistrate's court, three dollars;
  (8) For arranging the papers in a certified question, writ of error, appeal or removal to any other court, ~~five~~ ten dollars, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
  (9) For postage and express and for sending or receiving decrees, orders or records, by mail or express, three times the amount of the postage or express charges;
  (10) For each subpoena, on the part of either plaintiff or defendant, to be paid by the party requesting the same, fifty cents; ~~and~~
  (11) For additional service (plaintiff or appellant) where any case remains on the docket longer than three years, for each additional year or part year, twenty dollars;
  (12) For processing of criminal bond, twenty-five dollars per bond, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code; and
__(13) For processing of bail piece, ten dollars per bail piece, which shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code.
  (c) The clerk shall tax the following fees for services in any criminal case against any defendant convicted in such court:
  (1) In the case of any misdemeanor, fifty-five dollars; ~~and~~
  (2) In the case of any felony, ~~sixty-five~~ seventy-five dollars, of which ten dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
__(d) No such clerk shall be required to handle or accept for disbursement any fees, cost or amounts, of any other officer or party not payable into the county treasury, except it be on order of the court or in compliance with the provisions of law governing such fees, costs or accounts.
§59-1-28a. Disposition of filing fees in civil actions and fees for services in criminal cases.
  (a) Except for those payments to be made from amounts equaling filing fees received for the institution of divorce actions as prescribed in subsection (b) of this section, and except for those payments to be made from amounts equaling filing fees received for the institution of actions for divorce, separate maintenance and annulment as prescribed in subsection (b) of this section, for each civil action instituted under the rules of civil procedure, any statutory summary proceeding, any extraordinary remedy, the docketing of civil appeals, or any other action, cause, suit or proceeding in the circuit court, the clerk of the court shall, at the end of each month, pay into the funds or accounts described in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting the action as follows:
  (1) Into the regional jail and correctional facility authority fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of sixty dollars; and
  (2) Into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
  (b) For each action for divorce, separate maintenance or annulment instituted in the circuit court, the clerk of the court shall, at the end of each month, report to the supreme court of appeals, the number of actions filed by persons unable to pay, and pay into the funds or accounts in this subsection an amount equal to the amount set forth in this subsection of every filing fee received for instituting the divorce action as follows:
  (1) Into the regional jail and correctional facility authority fund in the state treasury established pursuant to the provisions of section ten, article twenty, chapter thirty-one of this code, the amount of ten dollars;
  (2) Into the special revenue account of the state treasury, established pursuant to section six hundred four, article two, chapter forty-eight of this code, an amount of thirty dollars;
  (3) Into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code, an amount of seventy dollars; and
  (4) Into the court security fund in the state treasury, established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code, the amount of five dollars.
  (c) Notwithstanding any provision of subsection (a) or (b) of this section to the contrary, the clerk of the court shall, at the end of each month, pay into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount equal to the amount of every fee received for petitioning for the modification of an order involving child custody, child visitation, child support or spousal support as determined by subdivision (3), subsection (a), section eleven of this article and for petitioning for an expedited modification of a child support order as provided in subdivision (4), subsection (a), section eleven of this article.
  (d) The clerk of the court from which a protective order is issued shall, at the end of each month, pay into the family court fund established under section twenty-two, article two-a, chapter fifty-one of this code an amount equal to every fee received pursuant to the provisions of section five hundred eight, article twenty-seven, chapter forty-eight of this code.
  (e) The clerk of each circuit court shall, at the end of each month, pay into the regional jail and correctional facility authority fund in the state treasury an amount equal to forty dollars of every fee for service received in any criminal case against any respondent convicted in such court and shall pay an amount equal to five dollars of every such fee into the court security fund in the state treasury established pursuant to the provisions of section fourteen, article three, chapter fifty-one of this code.
  (f) Beginning the first day of January, two thousand two, the clerk of the circuit court shall, at the end of each month, pay into the medical liability fund established under article twelve-b, chapter twenty-nine of this code an amount equal to one hundred sixty-five dollars of every filing fee received for instituting a medical professional liability action.
  (g) The clerk of the circuit court shall, at the end of each month, pay into the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code, those amounts received by the clerk which are dedicated for deposit in the fund.
ARTICLE 2. COSTS GENERALLY.
§59-2-17. Fees of prosecuting attorney.
  The clerk shall include in the costs, for fees of the prosecuting attorney, the following:
  (a) In cases of misdemeanor, or an action upon a bond for a violation of the license laws, ~~ten~~ fifteen dollars, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
  (b) In a case of bastardy, ten dollars;
  (c) In a suit or proceeding upon a forfeited recognizance upon behalf of the state, five percent upon the amount recovered and paid into the treasury;
  (d) In cases of felony, ~~thirty~~ thirty-five dollars, of which five dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code;
  (e) In any other case of the state, if a different fee is not prescribed, ten dollars.
  Such fees shall be collected and accounted for as provided in article one of this chapter, but shall not in any case be paid out of the county or state treasury.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
  (a) Except as provided in subsection (h) of this section, any person desiring to obtain a state license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for such license, and shall pay to the sheriff, at the time of application, a fee of ~~sixty~~ seventy-five dollars, of which fifteen dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may only be issued for pistols or revolvers. Each applicant shall file with the sheriff, a complete application, as prepared by the superintendent of the West Virginia state police, in writing, duly verified, which sets forth only the following licensing requirements:
  (1) The applicant's full name, date of birth, social security number and a description of the applicant's physical features;
  (2) That, on the date the application is made, the applicant is a bona fide resident of this state and of the county in which the application is made and has a valid driver's license or other state- issued photo identification showing such residence;
  (3) That the applicant is twenty-one years of age or older: Provided, That any individual who is less than twenty-one years of age and possesses a properly issued concealed weapons license as of the effective date of this article shall be licensed to maintain his or her concealed weapons license notwithstanding the provisions of this section requiring new applicants to be at least twenty- one years of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older that he or she is required to carry a concealed weapon as a condition for employment, and presents satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other conditions of this section. Upon discontinuance of employment that requires the concealed weapons license, if the individual issued the license is not yet twenty-one years of age, then the individual issued the license is no longer eligible and must return his or her license to the issuing sheriff;
  (4) That the applicant is not addicted to alcohol, a controlled substance or a drug, and is not an unlawful user thereof;
  (5) That the applicant has not been convicted of a felony or of an act of violence involving the misuse of a deadly weapon;
  (6) That the applicant has no criminal charges pending and is not currently serving a sentence of confinement, parole, probation or other court-ordered supervision, because of a charge of domestic violence as provided for in section twenty-eight, article two of this chapter, or is the subject of a restraining order as a result of a domestic violence act as defined in that section, or because of a verified petition of domestic violence as provided for in article two-a, chapter forty- eight of this code or is subject to a protective order as provided for in that article;
  (7) That the applicant is physically and mentally competent to carry such weapon;
  (8) That the applicant has not been adjudicated to be mentally incompetent;
  (9) That the applicant has qualified under the minimum requirements set forth in subsection (d) of this section for handling and firing such weapon: Provided, That this requirement shall be waived in the case of a renewal applicant who has previously qualified;
  (10) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct an investigation relative to the information contained in the application.
  (b) The sheriff shall conduct an investigation which shall verify that the information required in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section are true and correct.
  (c) ~~The sixty~~ Sixty dollars of the application fee and any fees for replacement of lost or stolen licenses received by the sheriff shall be deposited by the sheriff into a concealed weapons license administration fund. Such fund shall be administered by the sheriff and shall take the form of an interest bearing account with any interest earned to be compounded to the fund. Any funds deposited in this concealed weapon license administration fund are to be expended by the sheriff to pay for the costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end of each fiscal year may be expended for other law-enforcement purposes or operating needs of the sheriff's office, as the sheriff may deem appropriate.
  (d) All persons applying for a license must complete a training course in handling and firing a handgun. The successful completion of any of the following courses fulfills this training requirement:
  (1) Any official national rifle association handgun safety or training course;
  (2) Any handgun safety or training course or class available to the general public offered by an official law-enforcement organization, community college, junior college, college or private or public institution or organization or handgun training school utilizing instructors duly certified by such institution;
  (3) Any handgun training or safety course or class conducted by a handgun instructor certified as such by the state or by the national rifle association;
  (4) Any handgun training or safety course or class conducted by any branch of the United States military, reserve or national guard.
  A photocopy of a certificate of completion of any of the courses or classes or an affidavit from the instructor, school, club, organization or group that conducted or taught said course or class attesting to the successful completion of the course or class by the applicant or a copy of any document which shows successful completion of the course or class shall constitute evidence of qualification under this section.
  (e) All concealed weapons license applications must be notarized by a notary public duly licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the application constitutes false swearing and is punishable under the provisions of section two, article five, chapter sixty-one of this code.
  (f) If the information in the application is found to be true and correct, the sheriff shall issue a license. The sheriff shall issue or deny the license within forty-five days after the application is filed if all required background checks authorized by this section are completed.
  (g) Before any approved license shall be issued or become effective, the applicant shall pay to the sheriff a fee in the amount of fifteen dollars which the sheriff shall forward to the superintendent of the West Virginia state police within thirty days of receipt. Any such license shall be valid for five years throughout the state, unless sooner revoked.
  (h) All persons holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety-five, shall continue to hold a valid concealed weapons license until his or her license expires or is revoked as provided for in this article: Provided, That all reapplication fees shall be waived for applications received by the first day of January, one thousand nine hundred ninety-seven, for any person holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety- five, which contains use restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses reissued pursuant to this subsection will be issued for the time period of the original license.
  (i) Each license shall contain the full name, social security number and address of the licensee and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable for carrying in a wallet, and such license card is deemed a license for the purposes of this section.
  (j) The superintendent of the West Virginia state police shall prepare uniform applications for licenses and license cards showing that such license has been granted and shall do any other act required to be done to protect the state and see to the enforcement of this section.
  (k) In the event an application is denied, the specific reasons for the denial shall be stated by the sheriff denying the application. Any person denied a license may file, in the circuit court of the county in which the application was made, a petition seeking review of the denial. Such petition shall be filed within thirty days of the denial. The court shall then determine whether the applicant is entitled to the issuance of a license under the criteria set forth in this section. The applicant may be represented by counsel, but in no case shall the court be required to appoint counsel for an applicant. The final order of the court shall include the court's findings of fact and conclusions of law. If the final order upholds the denial, the applicant may file an appeal in accordance with the rules of appellate procedure of the supreme court of appeals.
  (l) In the event a license is lost or destroyed, the person to whom the license was issued may obtain a duplicate or substitute license for a fee of five dollars by filing a notarized statement with the sheriff indicating that the license has been lost or destroyed.
  (m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the superintendent of the West Virginia state police a certified copy of the approved application. It shall be the duty of the sheriff to furnish to the superintendent of the West Virginia state police at any time so requested a certified list of all such licenses issued in the county. The superintendent of the West Virginia state police shall maintain a registry of all persons who have been issued concealed weapons licenses.
  (n) All licensees must carry with them a state-issued photo identification card with the concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who fails to have in his or her possession a state-issued photo identification card and a current concealed weapons license while carrying a concealed weapon shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty or more than two hundred dollars for each offense.
  (o) The sheriff shall deny any application or revoke any existing license upon determination that any of the licensing application requirements established in this section have been violated by the licensee.
  (p) No person who is engaged in the receipt, review or in the issuance or revocation of a concealed weapon license shall incur any civil liability as the result of the lawful performance of his or her duties under this article.
  (q) Notwithstanding the provisions of subsection (a) of this section, with respect to application by a former law-enforcement officer honorably retired from agencies governed by article fourteen, chapter seven; article fourteen, chapter eight; article two, chapter fifteen; and article seven, chapter twenty of this code, an honorably retired officer is exempt from payment of fees and costs as otherwise required by this section, and the application of the honorably retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements of this section and has the approval of the appropriate chief law-enforcement officer.
  The bill, as amended by the Senate and as further amended by the House, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 671), and there were--yeas 83, nays 14, absent and not voting 3, with the nays and absent and not voting being as follows:
  Nays: Armstead, Ashley, Blair, Brown, Carmichael, Evans, Hall, Leggett, Louisos, Overington, Schadler, Schoen, Sumner and Webb.
  Absent And Not Voting: Coleman, Doyle and Mezzatesta.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2828) passed.
  On motion of Delegate Staton, the title of the bill was amended to read as follows:
  Com. Sub. for H. B. 2828 - "A Bill to amend and reenact section seven, article one-c, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section twenty-six, article three, chapter eleven-a of said code; to amend and reenact sections one and two, article three, chapter fifty of said code; to amend and reenact sections ten, eleven and twenty-eight-a, article one, chapter fifty-nine of said code; to amend and reenact section seventeen, article two of said chapter; and to amend and reenact section four, article seven, chapter sixty-one of said code, all relating to increasing certain county clerk, circuit clerk, assessor, sheriff, prosecuting attorney and magistrate court fees by resolution of county commission; and dedicating those fee increases to the courthouse facilities improvement fund and to the special revenue account to provide legal services to domestic violence victims."
  Delegate Staton moved that the bill take effect July 1, 2003.
  On this question, the yeas and nays were taken (Roll No. 672), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Louisos and Overington.

  Absent And Not Voting: Coleman.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2828) takes effect July 1, 2003.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  The House then proceeded to further consideration of Com. Sub. for S. B. 151, Relating to reorganizing executive branch of government.
  Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
  On this question, the yeas and nays were taken (Roll No. 673), and there were--yeas 69, nays 30, absent and not voting 1, with the nays and absent and not voting being as follows:
  Nays: Anderson, Armstead, Blair, Border, Calvert, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Wakim, Walters, Webb and Yeager.
  Absent And Not Voting: Coleman.
  So, four fifths of the members present and voting not having voted in the affirmative, the constitutional rule was not dispensed with.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2865, Upgrading the criminal offense of damaging or destroying real or personal property owned by a railroad company or public utility.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  That section twenty-nine, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-29. Damage or destruction of railroad or public utility company property, or real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, water, wastewater, stormwater, telecommunications or cable service; penalties; restitution.
  (a) Any person who ~~shall wilfully or maliciously destroy or injure any of the wires, poles, insulators, or other~~ knowingly and willfully damages or destroys any real or personal property ~~belonging to any telephone, telegraph or~~ owned by a railroad company, or ~~any~~ public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, water, wastewater, stormwater, telecommunications or cable service, ~~shall be~~ is guilty of a misdemeanor and, upon conviction thereof, shall be ~~imprisoned in the county jail not exceeding twelve months, and be~~ fined not ~~exceeding five hundred dollars, at the discretion of the court~~ more than two thousand dollars, or confined in the county or regional jail not more than one year, or both.
__(b) Any person who knowingly and willfully damages or destroys any real or personal property owned by a railroad company or public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, water, wastewater, stormwater, telecommunications or cable service causing serious bodily injury to another is guilty of a felony and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than fifty thousand dollars, or confined in a state correctional facility not less than one nor more than five years, or both.
__(c) Nothing in this section may be construed to limit or restrict the ability of an entity referred to in subsection (a) or (b) of this section or a property owner or other person who has been damaged or injured as a result of a violation of this section from seeking recovery for damages arising from violation of this section.

And,

  By amending the title of the bill to read as follows:
  Com. Sub. for H. B. 2865 - "A Bill to amend and reenact section twenty-nine, article three, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to crimes against property; and increasing penalties for damaging or destroying real or personal property owned by a railroad company or public utility or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, water, wastewater, storm-water, telecommunications or cable service."
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 674), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
  Absent And Not Voting: Coleman.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2865) passed.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
  H. B. 2953, Establishing a mechanism to eliminate any actuarially projected unfunded liability in the Prepaid Tuition Trust Fund.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendments were reported by the Clerk:
  On pages four and five, section six, line forty-four, by striking out all of subsections (g) and (h) and inserting in lieu thereof two new subsections, designated subsections (g) and (h), to read as follows:
  (g) Effective the eighth day of March, two thousand three, the prepaid tuition plan is closed to new contracts until the Legislature authorizes the plan to reopen. Closing the plan to new contracts shall not mean the prepaid tuition plan is closed and shall not affect any prepaid tuition plan contracts in effect on the eighth day of March, two thousand three. All contract owners shall continue to pay any amounts due, including without limitation monthly installments, penalties and fees. Earnings derived from the investment of moneys in the prepaid tuition trust fund shall continue to accrue to the fund until the fund is closed in accordance with this article.
  (h) The board shall continue to have the actuarial soundness of the prepaid tuition trust fund evaluated annually.
  On page five, section six, line sixty-two, following the word "Delegates" by inserting a comma and the words "joint committee on government and finance".
  On page six, section six, line seventy-one, by striking out the word "following" and inserting in lieu thereof the word "next".
  On page six, section six, line eighty-one, following the word "treasury" by inserting the words "to guarantee payment of prepaid tuition plan contracts".
  On page seven, section six, line ninety, by striking out the words "two million" and inserting in lieu thereof the words "five hundred thousand".
  On page seven, section six, line ninety-five, by striking out the words "two million" and inserting in lieu thereof the words "five hundred thousand".
  And,
  On page eleven, section thirteen, line thirty-seven, by striking out the words "two million" and inserting in lieu thereof the words "five hundred thousand".
  On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
  The bill, as amended by the Senate, was then put upon its passage.
  On the passage of the bill, the yeas and nays were taken (Roll No. 675), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
  Nays: Frich and Walters.
  Absent And Not Voting: Coleman and Varner.
  So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2953) passed.
  On motion of Delegate Staton, the title of the bill was amended to read as follows:
  H. B. 2953 - "A Bill to amend and reenact section six, article thirty, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section thirteen, article eight, chapter thirty-six of said code, all relating to the administration of the prepaid tuition plan of the West Virginia college prepaid tuition and savings program; clarifying how moneys in the prepaid tuition trust fund are processed when the plan is terminated; establishing a mechanism to eliminate any actuarially projected unfunded liability in the trust fund over a fixed period with funds from the unclaimed property trust fund in an amount not to exceed two million dollars annually; creating the prepaid tuition trust escrow account; providing for the transfer of funds in the unclaimed property trust fund to the prepaid tuition trust escrow account and to the general revenue fund; and providing for the investment and use of the money in the prepaid tuition trust escrow account."
  Delegate Staton moved that the bill take effect from its passage.
  On this question, the yeas and nays were taken (Roll No. 676), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
  Absent And Not Voting: Caputo, Coleman and Manchin.
  So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2953) takes effect from its passage.
  Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
  Delegate Manchin announced that he was absent when the vote was taken on Roll No. 676, and that had he been present, he would have voted "Yea" thereon.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
  Com. Sub. for H. B. 2972, Improving the actuarial soundness of municipal police and fire pensions.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, bills of the House of Delegates as follows:
  H. B. 2983, Relating to the teachers' retirement system,
  H. B. 2984, Increasing the amount of service credit a teacher off work due to a compensable injury may purchase,
  H. B. 3109, Bringing the provisions of the teachers' defined contribution retirement system in conformity with those of the teachers' retirement system,
  H. B. 3211, Expiring funds to the unappropriated surplus balance in the state fund, general revenue,
  And,
  H. B. 3212, Expiring funds to the department of military affairs and public safety - West Virginia state police - surplus real property process fund.
  A message from the Senate, by
  The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
  H. B. 3215, Expiring funds to the unappropriated surplus balance in the state fund, general revenue.
  On motion of Delegate Staton, the bill was taken up for immediate consideration.
  The following Senate amendment was reported by the Clerk:
  On page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
  "That the balance of funds in the secretary of state, fund 0155, fiscal year 2001, organization 1600, activity 097, be decreased by expiring the amount of ninety-nine thousand six hundred eighty- four dollars; in the secretary of state, fund 0155, fiscal year 1998, organization 1600, activity 599, be decreased by expiring the amount of seventy two thousand three hundred sixty-nine dollars; in the secretary of state, fund 0155, fiscal year 2001, organization 1600, activity 099, be decreased by expiring the amount of fifty-five thousand seven hundred forty-five dollars; and in the secretary of state, fund 0155, fiscal year 2002, organization 1600, activity 099, be decreased by expiring the amount of three hundred thirteen thousand eight hundred sixteen dollars to the unappropriated surplus balance of the state fund, general revenue; and
  That the total appropriation for fiscal year ending the thirtieth day of June, two thousand three, to the secretary of state, fund 0155, fiscal year 2003, organization 1600, be supplemented and amended by increasing the total appropriation as follows:
TITLE II-APPROPRIATIONS.
Section 1. Appropriations from general revenue.
EXECUTIVE
16-Secretary of State
(WEST VIRGINIA Code Chapter 3, 5,and 59)
Fund 0155 FY 2003 Org 1600
_________________________________________________________________General
                                                       Act-        Revenue
                                                      ivity        Fund
8a   Help America Vote Act - Transfer
8b        - Surplus                                     244  $        541,614
     The above appropriation for Help America Vote Act - Transfer (activity 244) shall be transferred to the State Election Fund (fund 1614, organization 1600).
     The purpose of this supplemental appropriation bill is to expire, supplement, decrease, increase and transfer items of appropriation in the aforesaid accounts for the designated spending unit for expenditure during the fiscal year two thousand three."
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
     The bill, as amended by the Senate, was then put upon its passage.
     On the passage of the bill, the yeas and nays were taken (Roll No. 677), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman.
     So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3215) passed.
     Delegate Staton moved that the bill take effect from its passage.
     On this question, the yeas and nays were taken (Roll No. 678), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman.
     So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3215) takes effect from its passage.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
     H. B. 3216, Supplementing, amending, reducing and increasing items of the existing appropriations from the state fund, general revenue, to the secretary of state.
     On motion of Delegate Staton, the bill was taken up for immediate consideration.
     The following Senate amendment was reported by the Clerk:
     On page one, by striking out everything following the enacting clause and inserting in lieu thereof the following:
     That the items of the total appropriation from the state fund, general revenue, to the secretary of state, fund 0155, fiscal year 2003, organization 1600, be amended and reduced in the existing line item as follows:
TITLE II-APPROPRIATIONS.
Section 1. Appropriations from general revenue.
EXECUTIVE
16-Secretary of State
(WEST VIRGINIA Code Chapter 3,5 and 59)
Fund 0155 FY 2003 Org 1600
_____________________________________________________        General
                                                   Act-        Revenue
                                                  ivity        Funds
4            Unclassified (R)                       099      $        158,386
             That the items of the total appropriations from the state fund, general revenue, to the secretary of state, fund 0155, fiscal year 2003, organization 1600, be amended and increased in the line item as follows:
TITLE II-APPROPRIATIONS.
Section 1. Appropriations from general revenue.
EXECUTIVE
16-Secretary of State
(WEST VIRGINIA Code Chapter 3,5 and 59)
Fund 0155 FY 2003 Org 1600
_____________________________________________________        General
                                                   Act-        Revenue
                                                  ivity        Funds
8a            Help America Vote Act - Transfer      100      $        158,386
     The above appropriation for Help America Vote Act - Transfer (activity 100) shall be transferred to the State Election Fund (fund 1614, organization 1600).
     The purpose of this supplementary appropriation bill is to supplement, amend, reduce and increase items of existing appropriations in the aforesaid account for the designated spending unit. The funds are for expenditure during the fiscal year two thousand three with no new money being appropriated.
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
     The bill, as amended by the Senate, was then put upon its passage.
     On the passage of the bill, the yeas and nays were taken (Roll No. 679), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman.
     So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3216) passed.
     Delegate Staton moved that the bill take effect from its passage.
     On this question, the yeas and nays were taken (Roll No. 680), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman.
     So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3216) takes effect from its passage.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates, with further amendments, and the passage, as amended, to take effect from passage, of
     S. B. 646, Establishing centers for economic development and technology advancement at higher education institutions.
     On motion of Delegate Staton, the bill was taken up for immediate consideration.
     The following Senate amendments, to the House amendments, were reported by the Clerk:
     On pages ten and eleven, by striking out all of section eleven.
     On page eleven, by striking out all of section five.
     On pages eleven and twelve, by striking out all of section two, and inserting in lieu thereof a new section two, to read as follows:
§18C-5-2. Definitions.
     (a) "Approved institution of higher education" means:
     (1) A state institution of higher education as defined in section two, article one, chapter eighteen-b of this code; ~~and~~ Alderson-Broaddus college, Appalachian Bible college, Bethany college, the college of West Virginia, Davis and Elkins college, Ohio Valley college, Salem-Teikyo college, the university of Charleston, West Virginia Wesleyan college and Wheeling Jesuit college, all in West Virginia; and
     (2) Any other regionally or nationally accredited institution of higher education in this state, public or private, approved by the ~~senior administrator~~ vice chancellor for administration if the institution has been licensed for a minimum of fifteen years subject to the provisions of section five, article three of this chapter and section four, article one-b of this chapter.
     (b) "Grant" or "grant program" means a grant or the grant program authorized and established by the provisions of this article.
     (c) "Senior administrator" means the ~~senior administrator defined~~ vice chancellor for administration, as provided in section two, article one, chapter eighteen-b of this code.
     On page twelve, by striking out the article heading.
     On pages twelve through fourteen by striking out all of sections three and three-a.
     On page two, by amending the enacting section, to read as follows:
     "That chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article twelve-a; that article one, chapter eighteen-c of said code be amended by adding thereto a new section, designated section five; and that section two, article five of said chapter be amended and reenacted, all to read as follows" followed by colon.
     And,
     By amending the title of the bill to read as follows:
     S. B. 646 - "A Bill to amend chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twelve-a; and to amend and reenact section two, article five of said chapter, all relating to higher education; centers for economic development and technology advancement generally; student financial aid; findings and purpose; definitions; authorizing doctoral institutions to enter into agreements with centers; setting forth requirements for governing bodies; powers and duties of governing bodies; providing for appointment of president; qualifications; powers and duties of president; authorizing agreements; terms and conditions; authorizing audit of center operations; clarifying issues of conflicts of interest; prohibiting waiver of sovereign immunity; and clarifying issues of debt obligations of centers; student financial aid; expanding definition of "eligible institution" for purposes of higher education grant program; and establishing funding priority for student financial aid in certain circumstances."
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments to the House amendments.
     The question being on the passage of the bill, the yeas and nays were taken (Roll No. 681), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
     Nays: Duke.
     Absent And Not Voting: Coleman.
     So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 646) passed.
     Delegate Staton moved that the bill take effect from its passage.
     On this question, the yeas and nays were taken (Roll No. 682), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman.
     So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 646) takes effect from its passage.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates, with further amendments, and the passage, as amended, of
     Com. Sub for S. B. 206, Authorizing aides to supervise students in in-school suspensions; limitation.
     On motion of Delegate Staton, the bill was taken up for immediate consideration.
     The following Senate amendments were reported by the Clerk:
     On page fourteen, following section one, by adding the following:
§18-8-11. School attendance as condition of licensing for privilege of operation of motor vehicle.
     (a) In accordance with the provisions of sections three and five, article two, chapter seventeen-b of this code, the division of motor vehicles shall deny a license or instruction permit for the operation of a motor vehicle to any person under the age of eighteen who does not at the time of application present a diploma or other certificate of graduation issued to the person from a secondary high school of this state or any other state or documentation that the person: (1) Is enrolled and making satisfactory progress in a course leading to a general educational development certificate (GED) from a state approved institution or organization, or has obtained ~~such~~ the certificate; (2) is enrolled in a secondary school of this state or any other state; (3) is excused from ~~such~~ the requirement due to circumstances beyond his or her control; or (4) is enrolled in an institution of higher education as a full-time student in this state or any other state.
     (b) The attendance director or chief administrator shall provide documentation of enrollment status on a form approved by the department of education to any student ~~fifteen years of age~~ at least fifteen but less than eighteen years of age ~~or older~~ upon request who is properly enrolled in a school under the jurisdiction of the official for presentation to the division of motor vehicles on application for or reinstatement of an instruction permit or license to operate a motor vehicle. Whenever a student at least fifteen ~~years of age~~ but less than eighteen years of age withdraws from school, except as provided in subsection (d) of this section, the attendance director or chief administrator shall notify the division of motor vehicles of the withdrawal not later than five days from the withdrawal date. Within five days of receipt of the notice, the division of motor vehicles shall send notice to the licensee that the license will be suspended under the provisions of section three, article two, chapter seventeen-b of this code on the thirtieth day following the date the notice was sent unless documentation of compliance with the provisions of this section is received by the division of motor vehicles before ~~such~~ that time. If suspended, the division may not reinstate a license before the end of the semester following that in which the withdrawal occurred.
     (c) For the purposes of this section:
     (1) Withdrawal ~~shall be~~ is defined as more than ten consecutive or fifteen ~~days~~ total days unexcused absences during a school year; ~~for the purposes of this section~~
     (2) Suspension or expulsion from school or imprisonment in a jail or a ~~penitentiary~~ West Virginia correctional facility is not a circumstance beyond the control of ~~such~~ the person.
     (d) Whenever the withdrawal from school of ~~such~~ the student, or ~~such~~ the student's failure to enroll in a course leading to or to obtain a GED or high school diploma, is beyond the control of ~~such~~ the student, or is for the purpose of transfer to another school as confirmed in writing by the student's parent or guardian, no ~~such~~ notice shall be sent to the division of motor vehicles to suspend the student's motor vehicle operator's license, and if the student is applying for a license, the attendance director or chief administrator shall provide the student with documentation to present to the division of motor vehicles to excuse the student from the provisions of this section. The school district superintendent (or the appropriate school official of any private secondary school) with the assistance of the county attendance director and any other staff or school personnel shall be the sole judge of whether ~~such~~ withdrawal is due to circumstances beyond the control of ~~such~~ the person.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-8. Authority of certain aides to exercise control over pupils; compensation; transfers.
     (a) Within the limitations provided ~~herein~~ in this section, any aide who agrees to do so shall stand in the place of the parent or guardian and shall exercise such authority and control over pupils as is required of a teacher as ~~defined and~~ provided in section one of this article. The principal shall designate aides in the school who agree to exercise that authority on the basis of seniority as an aide and shall enumerate the instances in which the authority shall be exercised by an aide when requested by the principal, assistant principal or professional employee to whom the aide is assigned.
     (b) ~~Provided,~~ ~~That the~~ The authority ~~does~~ provided for in subsection (a) of this section may not extend to suspending or expelling any pupil, participating in the administration of corporal punishment or performing instructional duties as a teacher or substitute teacher. However, the authority shall extend to supervising students undergoing in-school suspension if the instructional duties required by the supervision are limited solely to handing out class work and collecting class work. The authority to supervise students undergoing in-school suspension may not include actual instruction.
_____(c) An aide designated by the principal under ~~this~~ subsection (a) of this section shall receive a salary not less than one pay grade above the highest pay grade held by the employee under section eight-a, article four of this chapter and any county salary schedule in excess of the minimum requirements of this article.
     ~~(b)~~ (d) An aide may not be required by the operation of this section to perform noninstructional duties for an amount of time which exceeds that required under the aide's contract of employment or that required of other aides in the same school unless the assignment of ~~such~~ the duties is mutually agreed upon by the aide and the county superintendent, or the superintendent's designated representative, subject to board approval. The terms and conditions of the agreement shall be in writing, signed by both parties, and may include additional benefits. The agreement shall be uniform as to aides assigned similar duties for similar amounts of time within the same school. Aides shall have the option of agreeing to supervise students and of renewing related assignments annually. ~~Provided,~~ ~~That should~~ If an aide ~~elect~~ elects not to renew the previous agreement to supervise students, the minimum salary of the aide shall revert to the pay grade specified in section eight-a, article four of this chapter for the classification title held by the aide and any county salary schedule in excess of the minimum requirements of this article.
     ~~(c)~~ (e) For the purposes of this section, aide ~~shall mean and include~~ means any aide class title as defined in section eight, article four of this chapter regardless of numeric classification.
     ~~(d)~~ (f) An aide may transfer to another position of employment one time only during any one half of a school term, unless otherwise mutually agreed upon by the aide and the county superintendent, or the superintendent's designee, subject to board approval: Provided, That during the first year of employment as an aide, an aide may not transfer to another position of employment during the first one-half school term of employment unless mutually agreed upon by the aide and county superintendent, subject to board approval.
     ~~(e)~~ (g) Regular service personnel employed in a category of employment other than aide who seek employment as an aide shall hold a high school diploma or shall have received a general educational development certificate and shall have the opportunity to receive appropriate training pursuant to subsection (10), section thirteen, article five, chapter eighteen of this code and section two, article twenty of said chapter.
     On page one, by amending the enacting section, to read as follows:
     "That sections one and eleven, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section eight, article five, chapter eighteen-a of said code be amended and reenacted, all to read as follows" followed by a colon.
     And,
     By amending the title of the bill to read as follows:
     Com. Sub. for S. B. 206 - "A Bill to amend and reenact sections one and eleven, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section eight, article five, chapter eighteen-a of said code, all relating to compulsory school attendance; technical amendments; home school exemption; amending requirements to qualify for home school exemption; amending assessment requirements of home school exemption; eliminating exemption relating to residence more than two miles from school or school bus route; driver's license privilege; conditions for obtaining license; denial and revocation; and limitation on reinstatement; and authorizing aides to supervise students who are undergoing in-school suspension."
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments to the House amendments.
     The question being on the passage of the bill, the yeas and nays were taken (Roll No. 683), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:
     Nays: Butcher and Hrutkay.
     Absent And Not Voting: Coleman.
     So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 206) passed.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
     H. B. 3218, Expiring funds to the unappropriated surplus balance in the state fund, general revenue.
     On motion of Delegate Staton, the bill was taken up for immediate consideration.
     The following Senate amendment was reported by the Clerk:
     On page three, by striking out everything following the enacting clause and inserting in lieu thereof the following:
     That the balance of funds in the office of emergency services-flood disaster, January 1996, fund 6258, fiscal year 2003, organization 0606, be decreased by expiring the amount of fifty thousand dollars; the office of emergency services-flood disaster, May 1996, fund 6260, fiscal year 2003, be decreased by expiring fifty thousand dollars; the office of emergency services-flood disaster, July 1996, fund 6261, fiscal year 2003, organization 0606, be decreased by expiring the amount of fifty thousand dollars; the office of emergency services-flood disaster, September 1996, fund 6262, fiscal year 2003, organization 0606, be decreased by expiring the amount of fifty thousand dollars; the office of emergency services-flood disaster, March 1997, fund 6263, fiscal year 2003, organization 0606, be decreased by expiring the amount of thirty-three thousand eight hundred four dollars; the office of emergency services-flood disaster, June 1998, fund 6264, fiscal year 2003, organization 0606, be decreased by expiring the amount of fifty thousand dollars; and the office of emergency services-flood disaster, February 2000-governor's civil contingent fund, fund 6266, fiscal year 2003, organization 0606, be decreased by expiring the amount of eleven thousand six hundred seventy-five dollars to the unappropriated surplus balance of the state fund, general revenue, and that the total appropriation for fiscal year ending the thirtieth day of June, two thousand three, to fund 0443, fiscal year 2003, organization 0606, be supplemented and amended by increasing the total appropriations as follows:
TITLE II-APPROPRIATIONS.
Section 1. Appropriations from general revenue.
DEPARTMENT OF   MILITARY AFFAIRS AND PUBLIC SAFETY
55-Office of Emergency Services
(WEST VIRGINIA Code Chapter 15)
Fund 0443 FY 2003 Org 0606
_________________________________________________________        General
                                                       Act-        Revenue
                                                      ivity        Fund
4 Unclassified - Surplus                               097     $        78,000
5 Federal Emergency Management
6    Agency Match - Surplus                                            217,479
     Any unexpended balances remaining in the appropriation for Federal Emergency Management Agency Match - Surplus (fund 0443, activity ) at the close of the fiscal year 2003 are hereby reappropriated for expenditure during the fiscal year 2004.
     The purpose of this supplemental appropriation bill is to supplement and increase items of appropriation in the aforesaid accounts for the designated spending units for expenditure during the fiscal year two thousand three.
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
     The bill, as amended by the Senate, was then put upon its passage.
     On the passage of the bill, the yeas and nays were taken (Roll No. 684), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman and Frich.
    So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3218) passed.
     Delegate Staton moved that the bill take effect from its passage.
     On this question, the yeas and nays were taken (Roll No. 685), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman.
     So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3218) takes effect from its passage.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
     H. B. 3217, Establishing a fund and making a supplementary appropriation of federal funds out of the treasury from the balance of federal moneys remaining unappropriated.
     On motion of Delegate Staton, the bill was taken up for immediate consideration.
     The following Senate amendment was reported by the Clerk:
     On page one, by striking out everything following the enacting clause and inserting in lieu thereof the following:
     That the total appropriation for fiscal year ending the thirtieth day of June, two thousand three, to the secretary of state, fund 8854, fiscal year 2003, organization 1600, be established and supplemented the total appropriation by nine million dollars in the line item as follows:
TITLE II--APPROPRIATIONS.
Section 6. Appropriations of federal funds.
EXECUTIVE

249a-Secretary of State--
(WEST VIRGINIA Code Chapter 3)
Fund 8488 FY 2003 Org 1600
__________________________________________________________Act-        Federal
                                                         ivity        Funds
1            Unclassified--Total                          096    $9,000,000
     The purpose of this supplementary appropriation bill is to supplement this account in the budget act for fiscal year ending the thirtieth day of June, two thousand three, by establishing and appropriating nine million dollars to unclassified for the federal Help America Vote Act for expenditure during fiscal year two thousand three.
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
     The bill, as amended by the Senate, was then put upon its passage.
     On the passage of the bill, the yeas and nays were taken (Roll No. 686), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Walters.

     Absent And Not Voting: Coleman.
     So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3217) passed.
     Delegate Staton moved that the bill take effect from its passage.
     On this question, the yeas and nays were taken (Roll No. 687), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman.
     So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3217) takes effect from its passage.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
     Com. Sub. for H. B. 3051, Altering the certain reportable threshold dollar amounts on legislative member financial disclosure statements and lobbyist reports.
     On motion of Delegate Staton, the bill was taken up for immediate consideration.
     The following Senate amendments were reported by the Clerk:
     On page one, by striking out everything following the enacting clause and inserting in lieu thereof the following:
     That sections seven and ten, article two, chapter six-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that section four, article three of said chapter be amended and reenacted, all to read as follows:
ARTICLE 2. WEST VIRGINIA ETHICS COMMISSION; POWERS AND DUTIES; DISCLOSURE OF FINANCIAL INTEREST BY PUBLIC OFFICIALS AND EMPLOYEES; APPEARANCES BEFORE PUBLIC AGENCIES.
§6B-2-7. Financial disclosure statement; contents.
     The financial disclosure statement required under this article shall contain the following information:
     (1) The name, residential and business addresses of the person filing the statement and all names under which the person does business.
     (2) The name and address of each employer of the person.
     (3) The identification, by category, of every source of income over five thousand dollars received during the preceding calendar year, in his or her own name or by any other person for his or her use or benefit, by the person filing the statement, and a brief description of the nature of the services for which the income was received. This subdivision does not require a person filing the statement who derives income from a business, profession or occupation to disclose the individual sources and items of income that constitute the gross income of that business, profession or occupation, nor does this subdivision require a person filing the statement to report the source or amount of income derived by his or her spouse.
     (4) If the person profited or benefitted in the year prior to the date of filing from a contract for the sale of goods or services to a state, county, municipal or other local governmental agency either directly or through a partnership, corporation or association in which such person owned or controlled more than ten percent, the person shall describe the nature of the goods or services and identify the governmental agencies which purchased the goods or services.
     (5) Each interest group or category listed below doing business in this state with which the person filing the statement did business or furnished services and from which the person received more than twenty percent of the person's gross income during the preceding calendar year. The groups or categories are electric utilities, gas utilities, telephone utilities, water utilities, cable television companies, interstate transportation companies, intrastate transportation companies, oil or gas retail companies, banks, savings and loan associations, loan or finance companies, manufacturing companies, surface mining companies, deep mining companies, mining equipment companies, chemical companies, insurance companies, retail companies, beer, wine or liquor companies or distributors, recreation related companies, timbering companies, hospitals or other health care providers, trade associations, professional associations, associations of public employees or public officials, counties, cities or towns, labor organizations, waste disposal companies, wholesale companies, groups or associations seeking to legalize gambling, advertising companies, media companies, race tracks and promotional companies.
     (6) The names of all persons, excluding that person's immediate family, parents, or grandparents residing or transacting business in the state to whom the person filing the statement owes, on the date of execution of this statement in the aggregate in his or her own name or in the name of any other person more than twelve thousand five hundred dollars: Provided, That nothing herein shall require the disclosure of a mortgage on the person's primary and secondary residences or of automobile loans on automobiles maintained for the use of the person's immediate family, or of a student loan, nor shall this section require the disclosure of debts which result from the ordinary conduct of such person's business, profession, or occupation or of debts of the person filing the statement to any financial institution, credit card company, or business, in which the person has an ownership interest: Provided, however, That the previous proviso shall not exclude from disclosure loans obtained pursuant to the linked deposit program provided for in article one-a, chapter twelve of this code or any other loan or debt incurred which requires approval of the state or any of its political subdivisions.
     (7) The names of all persons except immediate family members, parents and grandparents residing or transacting business in the state (other than a demand or savings account in a bank, savings and loan association, credit union or building and loan association or other similar depository) who owes on the date of execution of this statement, more, in the aggregate, than twelve thousand five hundred dollars to the person filing the statement, either in his or her own name or to any other person for his or her use or benefit. This subdivision does not require the disclosure of debts owed to the person filing the statement which debts result from the ordinary conduct of such person's business, profession or occupation or of loans made by the person filing the statement to any business in which the person has an ownership interest.
    (8) The source of each gift having a value of over ~~one hundred~~ fifty dollars, received from a person having a direct and immediate interest in a governmental activity over which the person filing the statement has control, shall be reported by the person filing the statement when such gift is given to said person in his or her name or for his or her use or benefit during the preceding calendar year: Provided, That gifts received by will or by virtue of the laws of descent and distribution, or received from one's spouse, child, grandchild, parents or grandparents, or received by way of distribution from an inter vivos or testamentary trust established by the spouse or child, grandchild, or by an ancestor of the person filing the statement are not required to be reported. As used in this subdivision any series or plurality of gifts which exceeds in the aggregate the sum of ~~one hundred~~ fifty dollars from the same source or donor, either directly or indirectly, and in the same calendar year, shall be regarded as a single gift in excess of that aggregate amount.
§6B-2-10. Violations and penalties.
     (a) If any person violates the provisions of subsection (e), (f) or (g), section five of this article, or violates the provisions of subdivision (1), subsection (e), section four of this article, such person, upon conviction thereof, shall be guilty of a misdemeanor, and shall be punished by confinement in the county jail for a period not to exceed six months or shall be fined not more than one thousand dollars, or both such confinement and fine. If any person violating the provisions of subdivision (1), subsection (e), section four of this article shall be a member of the commission or an employee thereof, he or she shall, upon conviction, be subject to immediate removal or discharge.
     (b) If any person violates the provisions of subsection (f), section six of this article by willfully and knowingly filing a false financial statement, such person shall, upon conviction thereof, be deemed guilty of false swearing and shall be punished as provided in section three, article five, chapter sixty-one of this code.
     (c) If any person knowingly fails or refuses to file a financial statement required by section six of this article, such person, upon conviction thereof, shall be guilty of a misdemeanor, and shall be fined not less than one hundred dollars nor more than one thousand dollars.
     (d) If any complainant violates the provisions of subdivision (2), subsection ~~(f)~~ (e), section four, article two of this chapter by knowingly and willfully disclosing any information made confidential by an order of the commission, he or she shall be subject to administrative sanction by the commission as provided for in subsection ~~(r)~~ (q), section four of this article.
ARTICLE 3. LOBBYISTS.
§6B-3-4. Reporting by lobbyists.
     (a) A lobbyist shall file with the commission reports of his or her lobbying activities, signed by the lobbyist. The reports shall be filed as follows:
     (1) On or before the Monday preceding the second Wednesday in January of each year, a lobbyist shall file an annual report of all lobbying activities which he or she engaged in during the preceding calendar year; and
     (2) If a lobbyist engages in lobbying with respect to legislation, then:
     (A) Between the fortieth and forty-fifth days of any regular session of the Legislature in which any lobbying occurred, the lobbyist shall file a report describing all of his or her lobbying activities which occurred since the beginning of the calendar year; and
     (B) Within twenty-one days after the adjournment sine die of any regular or extraordinary session of the Legislature in which any lobbying occurred, the lobbyist shall file a report describing all of his or her lobbying activities which occurred since the beginning of the calendar year or since the filing of the last report required by this section, whichever is later.
     (b) (1) Except as otherwise provided in this section, each report filed by a lobbyist shall show the total amount of all expenditures for lobbying made or incurred by the lobbyist, or on behalf of the lobbyist by the lobbyist's employer, during the period covered by the report. The report shall also show subtotals segregated according to financial category, including meals and beverages; living accommodations; advertising; travel; contributions; gifts to public officials or employees or to members of the immediate family of a public official or employee; and other expenses or services.
     (2) Lobbyists are not required to report the following:
     (A) Unreimbursed personal living and travel expenses not incurred directly for lobbying;
     (B) Any expenses incurred for his or her own living accommodations;
     (C) Any expenses incurred for his or her own travel to and from public meetings or hearings of the legislative and executive branches;
     (D) Any expenses incurred for telephone, and any office expenses, including rent and salaries and wages paid for staff and secretarial assistance; and
     (E) Separate expenditures to or on behalf of a public official or employee in an amount of less than five dollars.
     (c) If a lobbyist is employed by more than one employer, the report shall show the proportionate amount of the expenditures in each category incurred on behalf of each of his or her employers.
     (d) The report shall describe the subject matter of the lobbying activities in which the lobbyist has been engaged during the reporting period.
     (e) If, during the period covered by the report, the lobbyist made expenditures in the reporting categories of meals and beverages, living accommodations, travel, gifts or other expenditures, other than for those expenditures governed by subsection (f) of this section, which expenditures in any reporting category and not reported on a prior report total more than ~~twenty-five~~ fifty dollars to or on behalf of any particular public official or employee, the lobbyist shall report the name of the public official or employee to whom or on whose behalf the expenditures were made, the total amount of the expenditures, and the subject matter of the lobbying activity, if any. Under this subsection, no portion of the amount of an expenditure for a dinner, party or other function sponsored by a lobbyist or a lobbyist's employer need be attributed to or counted toward the reporting amount of ~~twenty-five~~ fifty dollars for a particular public official or employee who attends the function if the sponsor has invited to the function all the members of: (1) The Legislature; (2) either house of the Legislature; (3) a standing or select committee of either house; or (4) a joint committee of the two houses of the Legislature. However, the amount spent for the function shall be added to other expenditures for the purpose of determining the total amount of expenditures reported under subsection (b) of this section.
     (f) If, during the period covered by the report, the lobbyist made expenditures in the reporting categories of meals and beverages, lodging, travel, gifts and scheduled entertainment, which reporting expenditures in any reporting category total more than ~~twenty-five~~ fifty dollars for or on behalf of a particular public official or public employee in return for the participation of the public official or employee in a panel or speaking engagement at the meeting, the lobbyist shall report the name of the public official or employee to whom or on whose behalf the expenditures were made and the total amount of the expenditures.
     And,
     By amending the title of the bill to read as follows:
     Com. Sub. for H. B. 3051 - "A Bill to amend and reenact sections seven and ten, article two, chapter six-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section four, article three of said chapter, all relating to altering the certain reportable threshold dollar amounts on certain elected and appointed public official financial disclosure statement; and increasing lobbyist expenditure reporting threshold to fifty dollars per reporting period."
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
     The bill, as amended by the Senate, was then put upon its passage.
     On the passage of the bill, the yeas and nays were taken (Roll No. 688), and there were--yeas 77, nays 22, absent and not voting 1, with the nays and absent and not voting being as follows:
     Nays: Armstead, Ashley, Blair, Calvert, Carmichael, Caruth, Duke, Frich, Hall, Hamilton, Hatfield, Hrutkay, Louisos, Overington, Poling, Schoen, Sobonya, Sumner, Trump, Wakim, Walters and Webb.
     Absent And Not Voting: Coleman.
    So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3051) passed.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
     H. B. 3195, Changing agency termination dates pursuant to West Virginia sunset law.
     On motion of Delegate Staton, the bill was taken up for immediate consideration.
     The following Senate amendments were reported by the Clerk:
     On page three, section four, line twenty-two, by striking out the word "Tiger'" and inserting in lieu thereof the word " " Tiger" ".
     And,
     On page ten, section five-b, lines twenty-four and twenty-five, following the words "veterinary medicine" and the semi-colon, by inserting the words "board of dental examiners" followed by a semi-colon.
     On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
     The bill, as amended by the Senate, was then put upon its passage.
     On the passage of the bill, the yeas and nays were taken (Roll No. 689), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
     Absent And Not Voting: Coleman.
    So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3195) passed.
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
     H. B. 3214, Expiring funds to the secretary of state - state election fund.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had concurred in the amendments of the House of Delegates and again passed a bill of the House of Delegates, heretofore disapproved by the Governor, all in an effort to meet the objections of the Governor, as follows:
     Enrolled Com. Sub. for H. B. 2122, Relating to medical professional liability generally.
     A message from the Senate, by
     The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, to take effect from passage, of
     H. B. 2224, Relating to higher education reorganization.
     A message from the Senate, by
     The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
     Com. Sub. for S. B. 529, Creating institute for health care professionals and center for nursing.
    On motion of Delegate Staton, the House of Delegates receded from its amendment as to section six, board of funeral service directors.
     The question being on the passage of the bill, as amended by the House, the yeas and nays were taken (Roll No. 690), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:
     Nays: Border and Schoen.
     Absent And Not Voting: Caruth, Coleman and Leggett.
     So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 529) passed.
     On motion of Delegate Staton, the title of the bill was amended to read as follows:
     Com. Sub. for S. B. 529 - "A Bill to amend chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article seven-b, relating to the center for nursing; terminating the nursing shortage study commission; establishing the center for nursing; providing for the center to assume the duties of the nursing shortage study commission; delineating the purpose and functions of the center; establishing a board of directors for the center; establishing terms, term limitations and reimbursement for board members; providing for legislative rules; establishing a special revenue account; and assessing fees to fund the center."
     Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
     Delegate Caruth requested that the Clerk record him as voting "Yea" on the passage of Com. Sub. for S. B. 529.
     The Speaker stated that the hour of Midnight had arrived and declared the constitutional expiration of the session.
     At 12:02 a.m., Sunday, March 9, 2003, on motion of Delegate Staton, the House of Delegates adjourned until 12:20 a.m. the same day.