Upon expiration of the recess, the Senate reconvened and,
without objection, returned to the third order of business.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the
following proclamation from His Excellency, the Governor, extending
this current legislative session until and including the sixteenth
day of March, two thousand three, which was received and read by
the Clerk:
STATE OF WEST VIRGINIA
EXECUTIVE DEPARTMENT
CHARLESTON
A P R O C L A M A T I O N
By the Governor
WHEREAS, The Constitution of West Virginia delineates the
respective powers, duties and responsibilities of the three
separate branches of government; and
WHEREAS, Article VI, Section 22 of the Constitution of West
Virginia provides that this regular session of the Legislature not
exceed sixty calendar days computed from and including the second
Wednesday of January; and
WHEREAS, Pursuant to Article VI, Section 22 of the
Constitution of West Virginia, the 2003 regular session of the
Legislature concludes on March 8, 2003; and
WHEREAS, Article VI, Section 51 of the Constitution of West Virginia sets forth the legal authority of the Governor and the
Legislature relating to the preparation and enactment of Budget and
Supplementary Appropriation Bills; and
WHEREAS, Subsection D of said section requires the Governor to
issue a Proclamation to extend the regular session of the
Legislature if the Budget Bill shall not have been fully acted upon
by the Legislature three days before the expiration of its regular
session; and
WHEREAS, The Legislature has not finally acted upon the Budget
Bill three days before the expiration of this current regular
session of the state Legislature.
NOW, THEREFORE, I, BOB WISE, GOVERNOR of the State of West
Virginia, do hereby issue this Proclamation, in accordance with
Article VI, Section 51, Subsection D(8) of the Constitution of West
Virginia, extending this regular session of the state Legislature
for consideration of the Budget Bill for a period not to exceed
eight days beyond the conclusion of this regular session, including
any extension thereof, under the provisions of Article VI, Section
22 of the Constitution of West Virginia; but no matters other than
the Budget Bill, Supplementary Appropriation Bills and a provision
for the cost of said extended session shall be considered during
this extension of the session.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the
Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of
Charleston, State of West
Virginia, on this the Fifth day
of March, in the year of our
Lord, Two Thousand Three, and
in the One Hundred Fortieth
year of the State.
BOB WISE,
Governor.
By the Governor:
JOE MANCHIN III,
Secretary of State.
A message from The Clerk of the House of Delegates announced
the adoption by that body of the committee of conference report,
passage as amended by the conference report with its conference
amended title, to take effect from passage, and requested the
concurrence of the Senate in the adoption thereof, as to
Eng. Com. Sub. for House Bill No. 2122, Relating to medical
professional liability generally.
Whereupon, Senator Kessler, from the committee of conference
on matters of disagreement between the two houses, as to
Eng. Com. Sub. for House Bill No. 2122, Relating to medical
professional liability generally.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the
two houses as to the amendments of the Senate to Engrossed
Committee Substitute for House Bill No. 2122 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 agree to the same as follows:
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 four and four-a, article three of
said chapter be amended and reenacted; that section fifteen-a,
article four of said chapter be amended and reenacted; that section two, 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 article twenty-f of said
chapter be amended by adding thereto a new section, designated
section one-a;
that sections two through eleven, inclusive, of said
article be amended and reenacted; 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:
CHAPTER 4. THE LEGISLATURE.
ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT
FUNDS.
§4-11A-2. Receipt of settlement funds and required deposit in West
Virginia tobacco settlement medical trust fund.
(a) The Legislature finds and declares that certain dedicated
revenues should be preserved in trust for the purpose of
stabilizing the state's health related programs and delivery
systems. It further finds and declares that these dedicated revenues should also be preserved in trust for the purpose of
educating the public about the health risks associated with tobacco
usage and for the establishment of establishing a program designed
to reduce and stop the use of tobacco by the citizens of this state
and in particular by teenagers.
(b) There is hereby created a special account in the state
treasury, designated the "West Virginia Tobacco Settlement Medical
Trust Fund", which shall be an interest-bearing account and may be
invested in the manner permitted by section nine, article six,
chapter twelve of this code, with the interest income a proper
credit to the fund. Unless contrary to federal law, fifty percent
of all revenues received pursuant to the master settlement
agreement shall be deposited in this fund. Funds paid into the
account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which
may be received from any governmental entity or unit or any person,
firm, foundation or corporation; and
(3) Any appropriations by the Legislature which may be made
for this purpose; and
__(4) Any funds or accrued interest remaining in the board of
risk and insurance management physicians' mutual insurance company
account created pursuant to section seven, article twenty-f,
chapter thirty-three of this code on or after first day of July, two thousand four.
__(c) The moneys from the principal in the trust fund may not be
expended for any purpose, except that on the first day of April,
two thousand three, the treasurer shall transfer to the board of
risk and insurance management physicians' mutual insurance company
account created by section seven, article twenty-f, chapter thirty-
three of this code, twenty-four million dollars from the West
Virginia tobacco settlement medical trust fund for use as the
initial capital and surplus of the physicians' mutual insurance
company created pursuant to article twenty-f, chapter thirty-three
of this code. The remaining moneys in the trust fund resulting from
interest earned on the moneys in the fund and the return on
investments of the moneys in the fund shall be available only upon
appropriation by the Legislature as part of the state budget and
expended in accordance with the provisions of section three of this
article.
CHAPTER 11. TAXATION.
ARTICLE 13T. TAX CREDIT FOR COMBINED CLAIMS MADE MEDICAL
MALPRACTICE PREMIUMS AND MEDICAL MALPRACTICE LIABILITY TAIL
INSURANCE PREMIUMS PAID.
§11-13T-1. Legislative finding and purpose.
The Legislature finds that the retention of physicians
practicing in this state is in the public interest and promotes the
general welfare of the people of this state. The Legislature further finds that the promotion of stable and affordable medical
malpractice liability insurance premium rates and medical
malpractice liability tail insurance premium rates will induce
retention of physicians practicing in this state.
In order to effectively decrease the cost of medical
malpractice liability insurance premiums and medical malpractice
liability tail insurance premiums paid in this state on physicians'
services, there is hereby provided a tax credit for certain medical
malpractice liability insurance premiums and medical malpractice
liability tail insurance premiums paid.
§11-13T-2. Definitions.
(a) General. -- When used in this article, or in the
administration of this article, terms defined in subsection (b) of
this section have the meanings ascribed to them by this section,
unless a different meaning is clearly required by the context in
which the term is used.
(b) Terms defined. -
(1) "Claims made malpractice insurance policy" means a medical
malpractice liability insurance policy that covers claims which:
(A) Are reported during the policy period,
(B) Meet the provisions specified by the policy, and
(C) Are for an incident which occurred during the policy
period, or occurred prior to the policy period, as is specified by
the policy.
(2) "Combined annual medical liability insurance premiums"
means the sum of the actual amount of insurance premiums paid by or
on behalf of the taxpayer during the taxable year for medical
malpractice insurance coverage under a claims made malpractice
insurance policy, plus the actual amount of insurance premiums paid
by or on behalf of the taxpayer during the taxable year for tail
insurance.
(3) "Eligible taxpayer" means any person subject to tax under
section sixteen, article twenty-seven of this chapter or a
physician who is a partner, member, shareholder or employee of an
eligible taxpayer.
(4) "Eligible taxpayer organization" means a partnership,
limited liability company, or corporation that is an eligible
taxpayer.
(5) "Payor" means a natural person who is a partner, member,
shareholder or owner, in whole or in part, of an eligible taxpayer
organization and who pays medical malpractice insurance premiums or
tail insurance premiums or both for or on behalf of the eligible
taxpayer organization.
(6) "Person" means and includes any natural person,
corporation, limited liability company, trust or partnership.
(7) "Physicians' services" means health care provider services
taxable under section sixteen, article twenty-seven of this
chapter, performed in this state by physicians licensed by the state board of medicine or the state board of osteopathic medicine.
(8) "Tail insurance" means insurance which covers an eligible
taxpayer insured once a claims made malpractice insurance policy is
canceled, not renewed or terminated and which covers claims made or
asserted after such cancellation or termination for acts relating
to the provision of physicians' services by the eligible taxpayer
occurring during the period the prior malpractice insurance was in
effect.
(9) "Tail insurance premium" means insurance coverage premiums
paid by an eligible taxpayer or payor during the taxable year for
tail insurance.
(10) "Tail liability" means the medical malpractice liability
of an eligible taxpayer insured that results from a claim asserted
subsequent to cancellation, nonrenewal or termination of a claims
made malpractice insurance policy for acts relating to the
provision of physicians' services by the eligible taxpayer
occurring during the period when the prior malpractice insurance
was in effect.
§11-13T-3. Eligibility for tax credits; creation of the credit.
There shall be allowed to every eligible taxpayer a credit
against the tax payable under section sixteen, article twenty-seven
of this chapter. The amount of this credit shall be determined and
applied as provided in this article.
§11-13T-4. Amount of credit allowed.
(a) Allowance. -
(1) The amount of annual credit allowable under this article
to an eligible taxpayer shall be:
(A) Ten percent of the combined annual medical liability
insurance premiums paid in excess of thirty thousand dollars, or
(B) Twenty percent of combined annual medical liability
insurance premiums paid in excess of seventy thousand dollars.
(2) This credit may be taken for combined annual medical
liability insurance premiums paid during any taxable year beginning
on or after the first day of January, two thousand two, and ending
on or before the thirty-first day of December, two thousand three.
(b) Exclusions. -- No credit shall be allowed for any combined
annual medical liability insurance premiums, or part or component
thereof, paid by or on behalf of an eligible taxpayer employed by
this state, its agencies or subdivisions. No credit shall be
allowed for any combined annual medical liability insurance
premiums, or part or component thereof, paid by or on behalf of an
eligible taxpayer or an eligible taxpayer organization or a payor
pursuant to insurance coverage provided under article twelve,
chapter twenty-nine of this code. No credit shall be allowed for
any combined annual medical liability insurance premiums, or part
or component thereof, paid before the first day of January, two
thousand two, or paid after the thirty-first day of December, two
thousand three.
§11-13T-5. Unused credit; carryforward; credit forfeiture.
If any credit remains after application of the credit against
tax for any taxable year under this article, the amount thereof
shall be carried forward to each ensuing tax year until used or
until the first day of July, two thousand ten, whichever occurs
first. If any unused credit remains after the first day of July,
two thousand ten, the amount thereof is forfeited. No carryback to
a prior taxable year is allowed for the amount of any unused
portion of this credit.
§11-13T-6. Application of credit against health care provider tax;
schedules; estimated taxes.
(a) The credit allowed under this article shall be applied
against the tax payable under section sixteen, article twenty-seven
of this chapter, for the taxable year in which the combined annual
medical liability insurance premiums are paid. To assert credit
against the tax payable under section sixteen, article twenty-seven
of this chapter, the eligible taxpayer shall prepare and file with
the annual tax return filed under article twenty-seven of this
chapter, a schedule showing the combined annual medical liability
insurance premiums paid for the taxable year, the amount of credit
allowed under this article, the tax against which the credit is
being applied and other information that the tax commissioner may
require. This annual schedule shall set forth the information and
be in the form prescribed by the tax commissioner.
(b) An eligible taxpayer may consider the amount of credit
allowed under this article when determining the eligible taxpayer's
liability for periodic payments of estimated tax for the taxable
year for the tax payable under section sixteen, article twenty-
seven of this chapter, in accordance with the procedures and
requirements prescribed by the tax commissioner. The annual total
tax liability and total tax credit allowed under this article are
subject to adjustment and reconciliation pursuant to the filing of
the annual schedule required by this section.
§11-13T-7. Computation and application of credit.
(a) Credit resulting from premiums directly paid by persons
who pay the tax imposed by section sixteen, article twenty-seven of
this chapter. -- The annual credit allowable under this article for
eligible taxpayers other than payors described in subsection (b) of
this section, shall be applied as a credit to reduce the eligible
taxpayer's annual tax liability imposed under section sixteen,
article twenty-seven of this chapter, determined after application
of the credit allowed under article thirteen-p of this chapter, if
any, and after application of all other allowable credits,
deductions and exemptions.
(b) Computation of credit for premiums directly paid by
partners, members or shareholders of partnerships, limited
liability companies, or corporations for or on behalf of such
organizations; application of credit.
(1) Qualification for credit.-- Combined annual medical
liability insurance premiums paid by a payor (as defined in this
article) qualify for tax credit under this article, provided that
such payments are made to insure against medical malpractice
liabilities arising out of or resulting from physicians' services
provided by a physician while practicing in service to or under the
organizational identity of an eligible taxpayer organization or as
an employee of such eligible taxpayer organization, and where such
insurance covers the medical malpractice liabilities or tail
liabilities of:
(A) The eligible taxpayer organization; or
(B) One or more physicians practicing in service to or under
the organizational identity of the eligible taxpayer organization
or as an employee of the eligible taxpayer organization; or
(C) Any combination thereof.
(2) Application of credit by the payor against health care
provider tax on physician's services. -- The annual credit
allowable under this article shall be applied to reduce the tax
liability directly payable by the payor under section sixteen,
article twenty-seven of this chapter, determined after application
of the credit allowed under article thirteen-p of this chapter, if
any, and after application of all other allowable credits,
deductions and exemptions.
(3) Application of credit by the eligible taxpayer
organization against health care provider tax on physician's
services. -- After application of this credit as provided in
subdivision (2) of this subsection, remaining annual credit shall
then be applied to reduce the tax liability directly payable by the
eligible taxpayer organization under section sixteen, article
twenty-seven of this chapter, determined after application of the
credit allowed under article thirteen-p of this chapter, if any,
and after application of all other allowable credits, deductions
and exemptions.
(4) Apportionment among multiple eligible taxpayer
organizations. -- Where a payor described in subdivision (1) of
this subsection pays combined annual medical liability insurance
premiums for and provides services to or under the organizational
identity of two or more eligible taxpayer organizations described
in this section or as an employee of two or more such eligible
taxpayer organizations, the tax credit shall, for purposes of
subdivision (3) of this subsection, be allocated among such
eligible taxpayer organizations in proportion to the combined
annual medical liability insurance premiums paid directly by the
payor during the taxable year to cover physicians' services during
such year for, or on behalf of, each eligible taxpayer
organization. In no event may the total credit claimed by all
payors, eligible taxpayers and eligible taxpayer organizations exceed the credit which would be allowable if the payor had paid
all such combined annual medical liability insurance premiums for
or on behalf of one eligible taxpayer organization, and if all
physician's services had been performed for, or under the
organizational identity of, or by employees of, one eligible
taxpayer organization.
(c) Application of the credit allowed under this article in
combination with all other applicable tax credits, exemptions and
deductions shall in no event reduce the tax liability below zero,
and shall in no circumstances be applied as a refundable tax
credit, or result in a refundable tax credit.
§11-13T-8. Legislative rules.
The tax commissioner shall propose for promulgation rules
pursuant to the provisions of article three, chapter twenty-nine-a
of this code, as may be necessary to carry out the purposes of this
article.
§11-13T-9. Burden of proof.
The burden of proof is on the person claiming the credit
allowed by this article to establish by clear and convincing
evidence that the person is entitled to the amount of credit
asserted for the taxable year.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 12. STATE INSURANCE.
§29-12-5 Powers and duties of board.
(a) The board shall have general supervision and control over
the insurance of all state property, activities and
responsibilities, including the acquisition and cancellation
thereof; determination of amount and kind of coverage, including,
but not limited to, deductible forms of insurance coverage,
inspections or examinations relating thereto, reinsurance, and any
and all matters, factors and considerations entering into
negotiations for advantageous rates on and coverage of all such
state property, activities and responsibilities. The board shall
have the authority to employ an executive director for an annual
salary of seventy thousand dollars and such other employees,
including legal counsel, as may be necessary to carry out its
duties. The legal counsel may represent the board before any
judicial or administrative tribunal and perform such other duties
as may be requested by the board. Any policy of insurance
purchased or contracted for by the board shall provide that the
insurer shall be barred and estopped from relying upon the
constitutional immunity of the state of West Virginia against
claims or suits: Provided, That nothing herein shall bar the
insurer of political subdivisions from relying upon any statutory
immunity granted such political subdivisions against claims or
suits. The board may enter into any contracts necessary to the
execution of the powers granted to it by this article. It shall
endeavor to secure the maximum of protection against loss, damage or liability to state property and on account of state activities
and responsibilities by proper and adequate insurance coverage
through the introduction and employment of sound and accepted
methods of protection and principles of insurance. It is empowered
and directed to make a complete survey of all presently owned and
subsequently acquired state property subject to insurance coverage
by any form of insurance, which survey shall include and reflect
inspections, appraisals, exposures, fire hazards, construction, and
any other objectives or factors affecting or which might affect the
insurance protection and coverage required. It shall keep itself
currently informed on new and continuing state activities and
responsibilities within the insurance coverage herein contemplated.
The board shall work closely in cooperation with the state fire
marshal's office in applying the rules of that office insofar as
the appropriations and other factors peculiar to state property
will permit. The board is given power and authority to make rules
governing its functions and operations and the procurement of state
insurance.
The board is hereby authorized and empowered to negotiate and
effect settlement of any and all insurance claims arising on or
incident to losses of and damages to state properties, activities
and responsibilities hereunder and shall have authority to execute
and deliver proper releases of all such claims when settled. The
board may adopt rules and procedures for handling, negotiating and settlement of all such claims. Any discussion or consideration of
the financial or personal information of an insured may be held by
the board in executive session closed to the public,
notwithstanding the provisions of article nine-a, chapter six of
this code.
(b) If requested by a political subdivision, a charitable or
public service organization, or an emergency medical services
agency, the board is authorized to provide property and liability
insurance to insure their property, activities and
responsibilities. The board is authorized to enter into any
necessary contract of insurance to further the intent of this
subsection.
The property insurance provided by the board, pursuant to this
subsection, may also include insurance on property leased to or
loaned to the political subdivision, a charitable or public service
organization or an emergency medical services agency which is
required to be insured under a written agreement.
The cost of this insurance, as determined by the board, shall
be paid by the political subdivision, the charitable or public
service organization or the emergency medical services agency and
may include administrative expenses. For purposes of this section:
Provided, That if an emergency medical services agency is a for-
profit entity its claims history may not adversely affect other
participant's rates in the same class. All funds received by the board (including, but not limited to, state agency premiums, mine
subsidence premiums, and political subdivision premiums) shall be
deposited with the West Virginia investment management board with
the interest income and returns on investment a proper credit to
such property insurance trust fund or liability insurance trust
fund, as applicable.
"Political subdivision" as used in this subsection shall have
the same meaning as in section three, article twelve-a of this
chapter.
"Charitable" or public service organization as used in this
subsection means a any hospital in this state which has been
certified as a critical access hospital by the federal centers for
medicare and medicaid upon the designation of the state office of
rural health policy, the office of community and rural health
services, the bureau for public health, or the department of health
and human resources, and any bona fide, not-for-profit, tax-exempt,
benevolent, educational, philanthropic, humane, patriotic, civic,
religious, eleemosynary, incorporated or unincorporated association
or organization or a rescue unit or other similar volunteer
community service organization or association, but does not include
any nonprofit association or organization, whether incorporated or
not, which is organized primarily for the purposes of influencing
legislation or supporting or promoting the campaign of any
candidate for public office.
"Emergency medical service agency" as used in this subsection
shall have the same meaning as in section three, article four-c,
chapter sixteen of this code.
(c) (1) The board shall have general supervision and control
over the optional medical liability insurance programs providing
coverage to health care providers as authorized by the provisions
of article twelve-b of this chapter. The board is hereby granted
and may exercise all powers necessary or appropriate to carry out
and effectuate the purposes of this article.
(2) The board shall:
(A) Administer the preferred medical liability program and the
high risk medical liability program and exercise and perform other
powers, duties and functions specified in this article;
(B) Obtain and implement, at least annually, from an
independent outside source, such as a medical liability actuary or
a rating organization experienced with the medical liability line
of insurance, written rating plans for the preferred medical
liability program and high risk medical liability program on which
premiums shall be based;
(C) Prepare and annually review written underwriting criteria
for the preferred medical liability program and the high risk
medical liability program. The board may utilize review panels,
including, but not limited to, the same specialty review panels to
assist in establishing criteria;
(D) Prepare and publish, before each regular session of the
Legislature, separate summaries for the preferred medical liability
program and high risk medical liability program activity during the
preceding fiscal year, each summary to be included in the board of
risk and insurance management audited financial statements as
"other financial information", and which shall include a balance
sheet, income statement and cash flow statement, an actuarial
opinion addressing adequacy of reserves, the highest and lowest
premiums assessed, the number of claims filed with the program by
provider type, the number of judgments and amounts paid from the
program, the number of settlements and amounts paid from the
program and the number of dismissals without payment;
(E) Determine and annually review the claims history debit or
surcharge for the high risk medical liability program;
(F) Determine and annually review the criteria for transfer
from the preferred medical liability program to the high risk
medical liability program;
(G) Determine and annually review the role of independent
agents, the amount of commission, if any, to be paid therefor, and
agent appointment criteria;
(H) Study and annually evaluate the operation of the preferred
medical liability program and the high risk medical liability
program, and make recommendations to the Legislature, as may be
appropriate, to ensure their viability, including, but not limited to, recommendations for civil justice reform with an associated
cost-benefit analysis, recommendations on the feasibility and
desirability of a plan which would require all health care
providers in the state to participate with an associated cost-
benefit analysis, recommendations on additional funding of other
state run insurance plans with an associated cost-benefit analysis
and recommendations on the desirability of ceasing to offer a state
plan with an associated analysis of a potential transfer to the
private sector with a cost-benefit analysis, including impact on
premiums;
(I) Establish a five-year financial plan to ensure an adequate
premium base to cover the long tail nature of the claims-made
coverage provided by the preferred medical liability program and
the high risk medical liability program. The plan shall be designed
to meet the program's estimated total financial requirements,
taking into account all revenues projected to be made available to
the program, and apportioning necessary costs equitably among
participating classes of health care providers. For these
purposes, the board shall:
(i) Retain the services of an impartial, professional actuary,
with demonstrated experience in analysis of large group malpractice
plans, to estimate the total financial requirements of the program
for each fiscal year and to review and render written professional
opinions as to financial plans proposed by the board. The actuary shall also assist in the development of alternative financing
options and perform any other services requested by the board or
the executive director. All reasonable fees and expenses for
actuarial services shall be paid by the board. Any financial plan
or modifications to a financial plan approved or proposed by the
board pursuant to this section shall be submitted to and reviewed
by the actuary and may not be finally approved and submitted to the
governor and to the Legislature without the actuary's written
professional opinion that the plan may be reasonably expected to
generate sufficient revenues to meet all estimated program and
administrative costs, including incurred but not reported claims,
for the fiscal year for which the plan is proposed. The actuary's
opinion for any fiscal year shall include a requirement for
establishment of a reserve fund;
(ii) Submit its final, approved five-year financial plan,
after obtaining the necessary actuary's opinion, to the governor
and to the Legislature no later than the first day of January
preceding the fiscal year. The financial plan for a fiscal year
becomes effective and shall be implemented by the executive
director on the first day of July of the fiscal year. In addition
to each final, approved financial plan required under this section,
the board shall also simultaneously submit an audited financial
statement based on generally accepted accounting practices (GAAP)
and which shall include allowances for incurred but not reported claims: Provided, That the financial statement and the accrual-
based financial plan restatement shall not affect the approved
financial plan. The provisions of chapter twenty-nine-a of this
code shall not apply to the preparation, approval and
implementation of the financial plans required by this section;
(iii) Submit to the governor and the Legislature a prospective
five-year financial plan beginning on the first day of January, two
thousand three, and every year thereafter, for the programs
established by the provisions of article twelve-b of this chapter.
Factors that the board shall consider include, but shall not be
limited to, the trends for the program and the industry; claims
history, number and category of participants in each program;
settlements and claims payments; and judicial results;
(iv) Obtain annually, certification from participants that
they have made a diligent search for comparable coverage in the
voluntary insurance market and have been unable to obtain the same;
(J) Meet on at least a quarterly basis to review
implementation of its current financial plan in light of the actual
experience of the medical liability programs established in article
twelve-b of this chapter. The board shall review actual costs
incurred, any revised cost estimates provided by the actuary,
expenditures and any other factors affecting the fiscal stability
of the plan and may make any additional modifications to the plan necessary to ensure that the total financial requirements of these
programs for the current fiscal year are met;
(K) To analyze the benefit of and necessity for excess verdict
liability coverage;
(L) Consider purchasing reinsurance, in the amounts as it may
from time to time determine is appropriate, and the cost thereof
shall be considered to be an operating expense of the board;
(M) Make available to participants, optional extended
reporting coverage or tail coverage: Provided, That, at least five
working days prior to offering such coverage to a participant or
participants, the board shall notify the president of the Senate
and the speaker of the House of Delegates in writing of its
intention to do so, and such notice shall include the terms and
conditions of the coverage proposed;
(N) Review and approve, reject or modify rules that are
proposed by the executive director to implement, clarify or explain
administration of the preferred medical liability program and the
high risk medical liability program. Notwithstanding any
provisions in this code to the contrary, rules promulgated pursuant
to this paragraph are not subject to the provisions of sections
nine through sixteen, article three, chapter twenty-nine-a of this
code. The board shall comply with the remaining provisions of
article three and shall hold hearings or receive public comments
before promulgating any proposed rule filed with the secretary of state: Provided, That the initial rules proposed by the executive
director and promulgated by the board shall become effective upon
approval by the board notwithstanding any provision of this code;
(O) Enter into settlements and structured settlement
agreements whenever appropriate. The policy may not require as a
condition precedent to settlement or compromise of any claim the
consent or acquiescence of the policy holder. The board may own or
assign any annuity purchased by the board to a company licensed to
do business in the state;
(P) Refuse to provide insurance coverage for individual
physicians whose prior loss experience or current professional
training and capability are such that the physician represents an
unacceptable risk of loss if coverage is provided;
(Q) Terminate coverage for nonpayment of premiums upon written
notice of the termination forwarded to the health care provider not
less than thirty days prior to termination of coverage;
(R) Assign coverage or transfer all insurance obligations
and/or risks of existing or in-force contracts of insurance to a
third-party medical professional liability insurance carrier with
the comparable coverage conditions as determined by the board. Any
transfer of obligation or risk shall effect a novation of the
transferred contract of insurance and if the terms of the
assumption reinsurance agreement extinguish all liability of the board and the state of West Virginia such extinguishment shall be
absolute as to any and all parties; and
(S) Meet and consult with and consider recommendations from
the medical malpractice advisory panel established by the
provisions of article twelve-b of this chapter.
(d) If, after the first day of September, two thousand two,
the board has assigned coverages or transferred all insurance
obligations and/or risks of existing or in-force contracts of
insurance to a third-party medical professional liability insurance
carrier, and the board otherwise has no covered participants, then
the board shall not thereafter offer or provide professional
liability insurance to any health care provider pursuant to the
provisions of subsection (c) of this section or the provisions of
article twelve-b of this chapter unless the Legislature adopts a
concurrent resolution authorizing the board to reestablish medical
liability insurance programs.
ARTICLE 12B. WEST VIRGINIA HEALTH CARE PROVIDER PROFESSIONAL
LIABILITY INSURANCE AVAILABILITY ACT.
§29-12B-6. Health care provider professional liability insurance
programs.
(a) There is hereby established through the board of risk and
insurance management optional insurance for health care providers
consisting of a preferred professional liability insurance program
and a high risk professional liability insurance program.
(b) Each of the programs described in subsection (a) of this
section shall provide claims-made coverage for any covered act or
omission resulting in injury or death arising out of medical
professional liability as defined in subsection (d), section two,
article seven-b, chapter fifty-five of this code.
(c) Each of the programs described in subsection (a) of this
section shall offer optional prior acts coverage from and after a
retroactive date established by the policy declarations. The
premium for prior acts coverage may be based upon a five-year
maturity schedule depending on the years of prior acts exposure, as
more specifically set forth in a written rating manual approved by
the board.
(d) Each of the programs described in subsection (a) of this
section shall further provide an option to purchase an extended
reporting endorsement or tail coverage.
(e) Each of the programs described in subsection (a) of this
section shall offer limits for each health care provider in the
amount of one million dollars per claim, including repeated
exposure to the same event or series of events, and all derivative
claims, and three million dollars in the annual aggregate. Health
care providers have the option to purchase higher limits of up to
two million dollars per claim, including repeated exposure to the
same event or series of events, and all derivative claims, and up
to four million dollars in the annual aggregate. In addition, hospitals covered by the plan shall have available limits of three
million dollars per claim, including repeated exposure to the same
event or series of events, and all derivative claims, and five
million dollars in the annual aggregate. Installment payment plans
as established in the rating manual shall be available to all
participants.
(f) Each of the programs described in subsection (a) of this
section shall cover any act or omission resulting in injury or
death arising out of medical professional liability as defined in
subsection (d), section two, article seven-b, chapter fifty-five of
this code. The board shall exclude from coverage sexual acts as
defined in subdivision (e), section three of this article, and
shall have the authority to exclude other acts or omission from
coverage.
(g) Each of the programs described in subsection (a) of this
section shall apply to damages, except punitive damages, for
medical professional liability as defined in subsection (d),
section two, article seven-b, chapter fifty-five of this code.
(h) The board may, but is not required, to obtain excess
verdict liability coverage for the programs described in subsection
(a) of this section.
(i) Each of the programs shall be liable to the extent of the
limits purchased by the health care provider as set forth in
subsection (e) of this section. In the event that a claimant and a health care provider are willing to settle within those limits
purchased by the health care provider, but the board refuses or
declines to settle, and the ultimate verdict is in excess of the
purchased limits, the board shall not be liable for the portion of
the verdict in excess of the coverage provided in subsection (e) of
this section unless the board acts in bad faith, with actual
malice, in declining or refusing to settle: Provided, That if the
board has in effect applicable excess verdict liability insurance,
the health care provider shall not be required to prove that the
board acted with actual malice in declining or refusing to settle
in order to be indemnified for that portion of the verdict in
excess of the limits of the purchased policy and within the limits
of the excess liability coverage. Notwithstanding any provision of
this code to the contrary, the board shall not be liable for any
verdict in excess of the combined limit of the purchased policy and
any applicable excess liability coverage unless the board acts in
bad faith with actual malice.
(j) Rates for each of the programs described in subsection (a)
of this section may not be excessive, inadequate or unfairly
discriminatory: Provided, That the rates charged for the preferred
professional liability insurance program shall not be less than the
highest approved comparable base rate for a licensed carrier
providing five percent of the malpractice insurance coverage in
this state for the previous calendar year on file with the insurance commissioner: Provided, however, That if there is only
one licensed carrier providing five percent or more of the
malpractice insurance coverage in the state offering comparable
coverage, the board shall have discretion to disregard the approved
comparable base rate of the licensed carrier.
(k) The premiums for each of the programs described in
subsection (a) of this section are subject to premium taxes imposed
by article three, chapter thirty-three of this code.
(l) Nothing in this article shall be construed to preclude a
health care provider from obtaining professional liability
insurance coverage for claims in excess of the coverage made
available by the provisions of this article.
(m) General liability coverage that may be required by a
health care provider may be offered as determined by the board.
(n) The board may provide coverage for the run out of, and
tail coverage for, any active policy issued pursuant to this
article which is not transferred to the physician's mutual
insurance company in accordance with section nine, article twenty-
f, chapter thirty-three of this code. The board may permit such
policy holders to finance, with interest, the tail coverage premium
payments therefore, up to a maximum finance period of five years,
on such terms as the board may set.
§29-12B-14. Effective date and termination of authority.
The provisions of this article are effective from passage.
Any policies Policies written under this article may have an
effective date retroactive to the effective date of this article.
Except as provided in subsection (n), section six of this article,
the authority of the board of risk and insurance management to
issue medical liability policies under this article shall cease
upon the board's transfer, in accordance with section nine, article
twenty-f, chapter thirty-three of this code, of assets, obligations
and liabilities to the physicians' mutual insurance company created
pursuant to said article, or upon the first day of July, two-
thousand four, whichever occurs first. The board shall continue to
administer any existing policy of insurance which was issued
pursuant to this article, but was not transferred to the
physician's mutual insurance company, until the policy expires.
Upon the expiration of the policy, the board shall make tail
coverage available at an appropriate premium rate to be determined
by the board. The board shall continue to administer any tail
coverage so provided. On the thirtieth day of January each year,
the board shall report to the legislature's joint committee on
government and finance the amount of any unfunded liability
associated with the run out and tail coverage provided by this
section.
ARTICLE 12C. PATIENT INJURY COMPENSATION PLAN.
§29-12C-1. Patient injury compensation plan study board created;
purpose; study of creation and funding of patient injury
compensation fund; developing rules and establishing program;
and report to the Legislature.
(a) In recognition of the statewide concern over the rising
cost of medical malpractice insurance and the difficulty that
health care practitioners have in locating affordable medical
malpractice insurance, there is hereby created a patient injury
compensation fund study board to study the feasability of
establishing a patient injury compensation fund to reimburse
claimants in medical malpractice actions for any portion of
economic damages awarded which are uncollectible due to statutory
limitations on damage awards for trauma care and/or the elimination
of joint and several liability of tortfeasor health care providers
and health care facilities.
(b) The patient injury compensation fund study board shall
consist of the director of the board of risk and insurance
management, who shall serve as chairperson, the insurance
commissioner and an appointee of the governor. The patient injury
compensation fund study board shall utilize the resources of the
board of risk and insurance management and the insurance commission
to effectuate the study required by this article. The patient
injury compensation fund study board shall meet upon the call of
the chair. A simple majority of the patient injury compensation fund study board members constitutes a quorum for the transaction
of business.
(c) The patient injury compensation fund study board is
authorized to hold hearings, conduct investigations and consider,
without limitation, all options for identifying funding methods and
for the operation and administration of a patient injury
compensation fund within the following guidelines:
(1) The board of risk and insurance management is responsible
for implementing, administering and operating any patient injury
compensation fund;
(2) The patient injury compensation fund must be actuarially
sound and fully funded in accordance with generally accepted
accounting principles;
(3) Eligibility for reimbursement from the patient injury
compensation fund is limited to claimants who have been awarded
damages in a medical malpractice action but have been certified by
the board of risk and insurance management to be unable, after
exhausting all reasonable means available by law of recovering the
award, to collect all or part of the economic damages awarded due
to the limitations on awards established in sections nine and nine-
c, article seven-b chapter fifty-five of this code; and
(4) The board of risk and insurance management may invest the
moneys in the patient injury compensation fund and use any interest or other return from investments to pay administration expenses and
claims granted.
(d) The patient injury compensation fund study board's report
and recommendations shall be completed no later than the first day
of December, two thousand three, and shall be presented to the
joint committee of government and finance during the legislative
interim meetings to be held in December, two thousand three.
29-12C-2. Legislative rules.
(a) The Legislature hereby declares that an emergency exists
necessitating expeditious implementation of a patient injury
compensation fund, if economically feasible, and directs the
patient injury compensation fund study board to propose emergency
legislative rules relating to the establishment, implementation and
operation of the patient injury compensation fund in conjunction
with its report and recommendations to the Legislature under
section one of this article. The rules proposed by the patient
injury compensation fund study board shall:
(1) Provide the funding mechanism and the methodology for
processing and timely and accurately collect funds;
(2) Assure the actuarial soundness of the patient injury
compensation fund and sufficient moneys to satisfy all foreseeable
claims against the patient injury compensation fund, giving due
consideration to relevant loss or claim experience or trends and
normal costs of operation;
(3) Provide a reasonable reserve fund for unexpected
contingencies, consistent with generally accepted accounting
principles;
(4) Establish appropriate procedures for notification of
payment adjustments prior to any payment periods established in
which a funding adjustment will be in effect, consistent with
generally accepted accounting principles;
(5) Establish procedures for determining eligibility for and
distribution of funds to claimants seeking reimbursement;
(6) Establish the requirements and procedure for certifying
that a claimant has been unable to collect a portion of the
economic damages recovered;
(7) Establish the process for submitting a claim for payment
from the patient injury compensation fund; and
(8) Establish any additional requirements and criteria
consistent with and necessary to effectuate the provisions of this
article.
(b) If the Legislature accepts, in whole or in part, the
recommendations of the patient injury compensation fund study
board, enacts legislation establishing a patient injury
compensation fund and approves rules governing the initial
establishment, implementation and operation of the patient injury
compensation fund, those rules shall be filed with the secretary of
state as emergency rules.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-14. Professional discipline of physicians and podiatrists;
reporting of information to board pertaining to medical
professional liability and professional incompetence required;
penalties; grounds for license denial and discipline of
physicians and podiatrists; investigations; physical and
mental examinations; hearings; sanctions; summary sanctions;
reporting by the board; reapplication; civil and criminal
immunity; voluntary limitation of license; probable cause
determinations.
(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based on
information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional
incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified based upon criminal
convictions; complaints by citizens, pharmacists, physicians,
podiatrists, peer review committees, hospital administrators,
professional societies or others; or unfavorable outcomes arising
out of medical professional liability. The board shall initiate an investigation if there are five it receives notice that three or
more judgments, or five any combination of judgments and
settlements resulting in five or more unfavorable outcomes arising
from medical professional liability have been rendered or made
against the physician or podiatrist within the most recent a five-
year period in excess of fifty thousand dollars each. The board
may not consider any judgments or settlements as conclusive
evidence of professional incompetence or conclusive lack of
qualification to practice.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any physician or
podiatrist known to that medical peer review committee. Copies of
the requests for information from a medical peer review committee
may be provided to the subject physician or podiatrist if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are
so provided, the subject physician or podiatrist is allowed fifteen
days to comment on the requested information and such comments must
be considered by the board.
The chief executive officer of every hospital shall, within
sixty days after the completion of the hospital's formal
disciplinary procedure and also within sixty days after the
commencement of and again after the conclusion of any resulting legal action, report in writing to the board the name of any member
of the medical staff or any other physician or podiatrist
practicing in the hospital whose hospital privileges have been
revoked, restricted, reduced or terminated for any cause, including
resignation, together with all pertinent information relating to
such action. The chief executive officer shall also report any
other formal disciplinary action taken against any physician or
podiatrist by the hospital upon the recommendation of its medical
staff relating to professional ethics, medical incompetence,
medical professional liability, moral turpitude or drug or alcohol
abuse. Temporary suspension for failure to maintain records on a
timely basis or failure to attend staff or section meetings need
not be reported. Voluntary cessation of hospital privileges for
reasons unrelated to professional competence or ethics need not be
reported.
Any managed care organization operating in this state which
provides a formal peer review process shall report in writing to
the board, within sixty days after the completion of any formal
peer review process and also within sixty days after the
commencement of and again after the conclusion of any resulting
legal action, the name of any physician or podiatrist whose
credentialing has been revoked or not renewed by the managed care
organization. The managed care organization shall also report in
writing to the board any other disciplinary action taken against a physician or podiatrist relating to professional ethics,
professional liability, moral turpitude or drug or alcohol abuse
within sixty days after completion of a formal peer review process
which results in the action taken by the managed care organization.
For purposes of this subsection, "managed care organization" means
a plan that establishes, operates or maintains a network of health
care providers who have entered into agreements with and been
credentialed by the plan to provide health care services to
enrollees or insureds to whom the plan has the ultimate obligation
to arrange for the provision of or payment for health care services
through organizational arrangements for ongoing quality assurance,
utilization review programs or dispute resolutions.
Any professional society in this state comprised primarily of
physicians or podiatrists which takes formal disciplinary action
against a member relating to professional ethics, professional
incompetence, medical professional liability, moral turpitude or
drug or alcohol abuse shall report in writing to the board within
sixty days of a final decision the name of the member, together
with all pertinent information relating to the action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to a physician or podiatrist in
this state, including the state board of risk and insurance
management, shall submit to the board the following information within thirty days from any judgment or settlement of a civil or
medical professional liability action excepting product liability
actions: The name of the insured; the date of any judgment or
settlement; whether any appeal has been taken on the judgment and,
if so, by which party; the amount of any settlement or judgment
against the insured; and other information as the board may require
required by the board.
Within thirty days from the entry of an order by a court in a
medical professional liability action or other civil action wherein
in which a physician or podiatrist licensed by the board is
determined to have rendered health care services below the
applicable standard of care, the clerk of the court in which the
order was entered shall forward a certified copy of the order to
the board.
Within thirty days after a person known to be a physician or
podiatrist licensed or otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying to be so licensed is
convicted of a felony under the laws of this state or of any crime
under the laws of this state involving alcohol or drugs in any way,
including any controlled substance under state or federal law, the
clerk of the court of record in which the conviction was entered
shall forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of the physician or podiatrist or applicant, the nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association,
insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the
board shall provide written notice to the alleged violator stating
the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter
twenty-nine-a of this code. After reviewing the record of the
hearing, if the board determines that a violation of this
subsection has occurred, the board shall assess a civil penalty of
not less than one thousand dollars nor more than ten thousand
dollars against the violator. Anyone The board shall notify any
person so assessed shall be notified of the assessment in writing
and the notice shall specify the reasons for the assessment. If
the violator fails to pay the amount of the assessment to the board
within thirty days, the attorney general may institute a civil
action in the circuit court of Kanawha County to recover the amount
of the assessment. In any such civil action, the court's review of
the board's action shall be conducted in accordance with the
provisions of section four, article five, chapter twenty-nine-a of this code. Notwithstanding any other provision of this article to
the contrary, when there are conflicting views by recognized
experts as to whether any alleged conduct breaches an applicable
standard of care, the evidence must be clear and convincing before
the board may find that the physician or podiatrist has
demonstrated a lack of professional competence to practice with a
reasonable degree of skill and safety for patients.
Any person may report to the board relevant facts about the
conduct of any physician or podiatrist in this state which in the
opinion of that person amounts to medical professional liability or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society
comprised primarily of physicians or podiatrists to suspend,
restrict or revoke the privileges or membership of the physician or
podiatrist.
(c) The board may deny an application for license or other
authorization to practice medicine and surgery or podiatry in this
state and may discipline a physician or podiatrist licensed or otherwise lawfully practicing in this state who, after a hearing,
has been adjudged by the board as unqualified due to any of the
following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting to
renew a license to practice medicine and surgery or podiatry by
bribery, fraudulent misrepresentation or through known error of the
board;
(2) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly relates
to the practice of medicine. Any plea of nolo contendere is a
conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any unauthorized
person to practice medicine and surgery or podiatry contrary to
law;
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report or
record required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state or
federal law; or inducing another person to do any of the foregoing.
The reports and records as are herein covered in this subdivision
mean only those that are signed in the capacity as a licensed
physician or podiatrist;
(6) Requesting, receiving or paying directly or indirectly a
payment, rebate, refund, commission, credit or other form of profit
or valuable consideration for the referral of patients to any
person or entity in connection with providing medical or other
health care services or clinical laboratory services, supplies of
any kind, drugs, medication or any other medical goods, services or
devices used in connection with medical or other health care
services;
(7) Unprofessional conduct by any physician or podiatrist in
referring a patient to any clinical laboratory or pharmacy in which
the physician or podiatrist has a proprietary interest unless the
physician or podiatrist discloses in writing such interest to the
patient. The written disclosure shall indicate that the patient
may choose any clinical laboratory for purposes of having any
laboratory work or assignment performed or any pharmacy for
purposes of purchasing any prescribed drug or any other medical
goods or devices used in connection with medical or other health
care services.
As used herein in this subdivision, "proprietary interest"
does not include an ownership interest in a building in which space
is leased to a clinical laboratory or pharmacy at the prevailing
rate under a lease arrangement that is not conditional upon the
income or gross receipts of the clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity;
(9) Making a deceptive, untrue or fraudulent representation in
the practice of medicine and surgery or podiatry;
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence;
(11) Failing to keep written records justifying the course of
treatment of a patient, the records to include including, but not
be limited to, patient histories, examination and test results and
treatment rendered, if any;
(12) Exercising influence on a patient in such a way as to
exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any influence includes, but is not
limited to, the promotion or sale of services, goods, appliances or
drugs;
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any controlled
substance under state or federal law, other than in good faith and
in a therapeutic manner in accordance with accepted medical
standards and in the course of the physician's or podiatrist's
professional practice: Provided, That a physician who discharges
his or her professional obligation to relieve the pain and
suffering and promote the dignity and autonomy of dying patients in his or her care and, in so doing, exceeds the average dosage of a
pain relieving controlled substance, as defined in Schedule
Schedules II and III of the Uniform Controlled Substance Act, does
not violate this article;
(14) Performing any procedure or prescribing any therapy that,
by the accepted standards of medical practice in the community,
would constitute experimentation on human subjects without first
obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope
permitted by law or accepting and performing professional
responsibilities that the person knows or has reason to know he or
she is not competent to perform;
(16) Delegating professional responsibilities to a person when
the physician or podiatrist delegating the responsibilities knows
or has reason to know that the person is not qualified by training,
experience or licensure to perform them;
(17) Violating any provision of this article or a rule or
order of the board or failing to comply with a subpoena or subpoena
duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or
committing an act that would tend to coerce, intimidate or preclude
another physician or podiatrist from lawfully advertising his or
her services;
(19) Gross negligence in the use and control of prescription
forms;
(20) Professional incompetence; or
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or mental
impairment, including deterioration through the aging process or,
loss of motor skill or abuse of drugs or alcohol. A physician or
podiatrist adversely affected under this subdivision shall be
afforded an opportunity at reasonable intervals to demonstrate that
he or she may resume the competent practice of medicine and surgery
or podiatry with reasonable skill and safety to patients. In any
proceeding under this subdivision, neither the record of
proceedings nor any orders entered by the board shall be used
against the physician or podiatrist in any other proceeding.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry in
this state to any applicant who, and shall revoke the license of
any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court of
competent jurisdiction of any felony involving prescribing,
selling, administering, dispensing, mixing or otherwise preparing
any prescription drug, including any controlled substance under
state or federal law, for other than generally accepted therapeutic
purposes. Presentation to the board of a certified copy of the guilty verdict or plea rendered in the court is sufficient proof
thereof for the purposes of this article. A plea of nolo
contendere has the same effect as a verdict or plea of guilt.
(e) The board may refer any cases coming to its attention to
an appropriate committee of an appropriate professional
organization for investigation and report. Except for complaints
related to obtaining initial licensure to practice medicine and
surgery or podiatry in this state by bribery or fraudulent
misrepresentation, any complaint filed more than two years after
the complainant knew, or in the exercise of reasonable diligence
should have known, of the existence of grounds for the complaint,
shall be dismissed: Provided, That in cases of conduct alleged to
be part of a pattern of similar misconduct or professional
incapacity that, if continued, would pose risks of a serious or
substantial nature to the physician physician's or podiatrist's
current patients, the investigating body may conduct a limited
investigation related to the physician physician's or podiatrist's
current capacity and qualification to practice and may recommend
conditions, restrictions or limitations on the physician
physician's or podiatrist's license to practice that it considers
necessary for the protection of the public. Any report shall
contain recommendations for any necessary disciplinary measures and
shall be filed with the board within ninety days of any referral.
The recommendations shall be considered by the board and the case may be further investigated by the board. The board after full
investigation shall take whatever action it deems considers
appropriate, as provided herein in this section.
(f) The investigating body, as provided for in subsection (e)
of this section, may request and the board under any circumstances
may require a physician or podiatrist or person applying for
licensure or other authorization to practice medicine and surgery
or podiatry in this state to submit to a physical or mental
examination by a physician or physicians approved by the board. A
physician or podiatrist submitting to any such an examination has
the right, at his or her expense, to designate another physician to
be present at the examination and make an independent report to the
investigating body or the board. The expense of the examination
shall be paid by the board. Any individual who applies for or
accepts the privilege of practicing medicine and surgery or
podiatry in this state is considered to have given his or her
consent to submit to all examinations when requested to do so in
writing by the board and to have waived all objections to the
admissibility of the testimony or examination report of any
examining physician on the ground that the testimony or report is
privileged communication. If a person fails or refuses to submit
to any such an examination under circumstances which the board
finds are not beyond his or her control, failure or refusal is
prima facie evidence of his or her inability to practice medicine and surgery or podiatry competently and in compliance with the
standards of acceptable and prevailing medical practice.
(g) In addition to any other investigators it employs, the
board may appoint one or more licensed physicians to act for it in
investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the
board shall furnish the physician or podiatrist or applicant with
written notice setting out with particularity the reasons for its
action. Disciplinary and licensure denial hearings shall be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code. However, hearings shall be
heard upon sworn testimony and the rules of evidence for trial
courts of record in this state shall apply to all hearings. A
transcript of all hearings under this section shall be made, and
the respondent may obtain a copy of the transcript at his or her
expense. The physician or podiatrist has the right to defend
against any charge by the introduction of evidence, the right to be
represented by counsel, the right to present and cross-examine
witnesses and the right to have subpoenas and subpoenas duces tecum
issued on his or her behalf for the attendance of witnesses and the
production of documents. The board shall make all its final
actions public. The order shall contain the terms of all action
taken by the board.
(i) In disciplinary actions in which probable cause has been
found by the board, the board shall, within twenty days of the date
of service of the written notice of charges or sixty days prior to
the date of the scheduled hearing, whichever is sooner, provide the
respondent with the complete identity, address and telephone number
of any person known to the board with knowledge about the facts of
any of the charges; provide a copy of any statements in the
possession of or under the control of the board; provide a list of
proposed witnesses with addresses and telephone numbers, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of rule
26(b)(4) of the West Virginia rules of civil procedure; provide
inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing: Provided, That the board shall not be required to furnish
or produce any materials which contain opinion work product
information or would be a violation of the attorney-client
privilege. Within twenty days of the date of service of the
written notice of charges, the board shall be required to disclose
any exculpatory evidence with a continuing duty to do so throughout
the disciplinary process. Within thirty days of receipt of the
board's mandatory discovery, the respondent shall provide the board
with the complete identity, address and telephone number of any person known to the respondent with knowledge about the facts of
any of the charges; provide a list of proposed witnesses with
addresses and telephone numbers, to be called at hearing, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of rule
26(b)(4) of the West Virginia rules of civil procedure; provide
inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing.
(j) Whenever it finds any person unqualified because of any of
the grounds set forth in subsection (c) of this section, the board
may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other
authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other
authorization to practice medicine and surgery or podiatry for not
more than five years, including limiting the practice of that
person to, or by the exclusion of, one or more areas of practice,
including limitations on practice privileges;
(4) Revoke his or her license or other authorization to
practice medicine and surgery or podiatry or to prescribe or dispense controlled substances for a period not to exceed ten
years;
(5) Require him or her to submit to care, counseling or
treatment designated by the board as a condition for initial or
continued licensure or renewal of licensure or other authorization
to practice medicine and surgery or podiatry;
(6) Require him or her to participate in a program of
education prescribed by the board;
(7) Require him or her to practice under the direction of a
physician or podiatrist designated by the board for a specified
period of time; and
(8) Assess a civil fine of not less than one thousand dollars
nor more than ten thousand dollars.
(k) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines the
evidence in its possession indicates that a physician's or
podiatrist's continuation in practice or unrestricted practice
constitutes an immediate danger to the public, the board may take
any of the actions provided for in subsection (j) of this section
on a temporary basis and without a hearing if institution of
proceedings for a hearing before the board are initiated
simultaneously with the temporary action and begin within fifteen
days of the action. The board shall render its decision within
five days of the conclusion of a hearing under this subsection.
(l) Any person against whom disciplinary action is taken
pursuant to the provisions of this article has the right to
judicial review as provided in articles five and six, chapter
twenty-nine-a of this code: Provided, That a circuit judge may
also remand the matter to the board if it appears from competent
evidence presented to it in support of a motion for remand that
there is newly discovered evidence of such a character as ought to
produce an opposite result at a second hearing on the merits before
the board and:
(1) The evidence appears to have been discovered since the
board hearing; and
(2) The physician or podiatrist exercised due diligence in
asserting his or her evidence and that due diligence would not have
secured the newly discovered evidence prior to the appeal.
A person may not practice medicine and surgery or podiatry or
deliver health care services in violation of any disciplinary order
revoking, suspending or limiting his or her license while any
appeal is pending. Within sixty days, the board shall report its
final action regarding restriction, limitation, suspension or
revocation of the license of a physician or podiatrist, limitation
on practice privileges or other disciplinary action against any
physician or podiatrist to all appropriate state agencies,
appropriate licensed health facilities and hospitals, insurance
companies or associations writing medical malpractice insurance in this state, the American medical association, the American podiatry
association, professional societies of physicians or podiatrists in
the state and any entity responsible for the fiscal administration
of medicare and medicaid.
(m) Any person against whom disciplinary action has been taken
under the provisions of this article shall, at reasonable
intervals, be afforded an opportunity to demonstrate that he or she
can resume the practice of medicine and surgery or podiatry on a
general or limited basis. At the conclusion of a suspension,
limitation or restriction period the physician or podiatrist may
resume practice if the board has so ordered.
(n) Any entity, organization or person, including the board,
any member of the board, its agents or employees and any entity or
organization or its members referred to in this article, any
insurer, its agents or employees, a medical peer review committee
and a hospital governing board, its members or any committee
appointed by it acting without malice and without gross negligence
in making any report or other information available to the board or
a medical peer review committee pursuant to law and any person
acting without malice and without gross negligence who assists in
the organization, investigation or preparation of any such report
or information or assists the board or a hospital governing body or
any committee in carrying out any of its duties or functions
provided by law is immune from civil or criminal liability, except that the unlawful disclosure of confidential information possessed
by the board is a misdemeanor as provided for in this article.
(o) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his or her license to
practice medicine and surgery or podiatry or other appropriate
sanction as provided herein in this section. The board may grant
the request and, if it considers it appropriate, may waive the
commencement or continuation of other proceedings under this
section. A physician or podiatrist whose license is limited or
surrendered or against whom other action is taken under this
subsection may, at reasonable intervals, petition for removal of
any restriction or limitation on or for reinstatement of his or her
license to practice medicine and surgery or podiatry.
(p) In every case considered by the board under this article
regarding discipline or licensure, whether initiated by the board
or upon complaint or information from any person or organization,
the board shall make a preliminary determination as to whether
probable cause exists to substantiate charges of disqualification
due to any reason set forth in subsection (c) of this section. If
probable cause is found to exist, all proceedings on the charges
shall be open to the public who shall be are entitled to all
reports, records and nondeliberative materials introduced at the
hearing, including the record of the final action taken: Provided,
That any medical records, which were introduced at the hearing and which pertain to a person who has not expressly waived his or her
right to the confidentiality of the records, may not be open to the
public nor is the public entitled to the records.
(q) If the board receives notice that a physician or
podiatrist has been subjected to disciplinary action or has had his
or her credentials suspended or revoked by the board, a hospital or
a professional society, as defined in subsection (b) of this
section, for three or more incidents during a five-year period, the
board shall require the physician or podiatrist to practice under
the direction of a physician or podiatrist designated by the board
for a specified period of time to be established by the board.
__(q) (r) Notwithstanding any other provisions of this article,
the board may, at any time, on its own motion, or upon motion by
the complainant, or upon motion by the physician or podiatrist, or
by stipulation of the parties, refer the matter to mediation. The
board shall obtain a list from the West Virginia state bar's
mediator referral service of certified mediators with expertise in
professional disciplinary matters. The board and the physician or
podiatrist may choose a mediator from this that list. If the board
and the physician or podiatrist are unable to agree on a mediator,
the board shall designate a mediator from this listing the list by
neutral rotation. The mediation shall not be considered a
proceeding open to the public and any reports and records
introduced at the mediation shall not become part of the public record. The mediator and all participants in the mediation shall
maintain and preserve the confidentiality of all mediation
proceedings and records. The mediator may not be subpoenaed or
called to testify or otherwise be subject to process requiring
disclosure of confidential information in any proceeding relating
to or arising out of the disciplinary or licensure matter mediated:
Provided, That any confidentiality agreement and any written
agreement made and signed by the parties as a result of mediation
may be used in any proceedings subsequently instituted to enforce
the written agreement. The agreements may be used in other
proceedings if the parties agree in writing.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-12a. Initiation of suspension or revocation proceedings
allowed and required; reporting of information to board
pertaining to professional malpractice and professional
incompetence required; penalties; probable cause
determinations.
(a) The board may independently initiate suspension or
revocation proceedings as well as initiate suspension or revocation
proceedings based on information received from any person.
The board shall initiate investigations as to professional
incompetence or other reasons for which a licensed osteopathic
physician and surgeon may be adjudged unqualified if the board
receives notice that five three or more judgments or any combination of judgments and settlements resulting in five or more
unfavorable outcomes arising from medical professional liability
have been rendered or made against such osteopathic physician
within a five-year period.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any osteopathic physician
known to that medical peer review committee. Copies of such
requests for information from a medical peer review committee may
be provided to the subject osteopathic physician if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are
so provided, the subject osteopathic physician is allowed has
fifteen days to comment on the requested information and such
comments must be considered by the board.
After the completion of a hospital's formal disciplinary
procedure and after any resulting legal action, the chief executive
officer of such hospital shall report in writing to the board
within sixty days the name of any member of the medical staff or
any other osteopathic physician practicing in the hospital whose
hospital privileges have been revoked, restricted, reduced or
terminated for any cause, including resignation, together with all
pertinent information relating to such action. The chief executive
officer shall also report any other formal disciplinary action taken against any osteopathic physician by the hospital upon the
recommendation of its medical staff relating to professional
ethics, medical incompetence, medical malpractice, moral turpitude
or drug or alcohol abuse. Temporary suspension for failure to
maintain records on a timely basis or failure to attend staff or
section meetings need not be reported.
Any professional society in this state comprised primarily of
osteopathic physicians or physicians and surgeons of other schools
of medicine which takes formal disciplinary action against a member
relating to professional ethics, professional incompetence,
professional malpractice, moral turpitude or drug or alcohol abuse,
shall report in writing to the board within sixty days of a final
decision the name of such member, together with all pertinent
information relating to such action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to an osteopathic physician in
this state shall submit to the board the following information
within thirty days from any judgment, dismissal or settlement of a
civil action or of any claim involving the insured: The date of
any judgment, dismissal or settlement; whether any appeal has been
taken on the judgment, and, if so, by which party; the amount of
any settlement or judgment against the insured; and such other
information as required by the board may require.
Within thirty days after a person known to be an osteopathic
physician licensed or otherwise lawfully practicing medicine and
surgery in this state or applying to be so licensed is convicted of
a felony under the laws of this state, or of any crime under the
laws of this state involving alcohol or drugs in any way, including
any controlled substance under state or federal law, the clerk of
the court of record in which the conviction was entered shall
forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of such osteopathic physician or applicant, the
nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association,
insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the
board shall provide written notice to the alleged violator stating
the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter twenty-
nine-a of this code. After reviewing the record of such hearing,
if the board determines that a violation of this subsection has
occurred, the board shall assess a civil penalty of not less than one thousand dollars nor more than ten thousand dollars against
such violator. Anyone The board shall notify anyone so assessed
shall be notified of the assessment in writing and the notice shall
specify the reasons for the assessment. If the violator fails to
pay the amount of the assessment to the board within thirty days,
the attorney general may institute a civil action in the circuit
court of Kanawha County to recover the amount of the assessment.
In any such civil action, the court's review of the board's action
shall be conducted in accordance with the provisions of section
four, article five, chapter twenty-nine-a of this code.
Any person may report to the board relevant facts about the
conduct of any osteopathic physician in this state which in the
opinion of such person amounts to professional malpractice or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society
comprised primarily of osteopathic physicians or physicians and
surgeons of other schools of medicine to suspend, restrict or
revoke the privileges or membership of such osteopathic physician.
(c) In every case considered by the board under this article
regarding suspension, revocation or issuance of a license whether
initiated by the board or upon complaint or information from any
person or organization, the board shall make a preliminary
determination as to whether probable cause exists to substantiate
charges of cause to suspend, revoke or refuse to issue a license as
set forth in subsection (a), section eleven of this article. If
such probable cause is found to exist, all proceedings on such
charges shall be open to the public who shall be are entitled to
all reports, records, and nondeliberative materials introduced at
such hearing, including the record of the final action taken:
Provided, That any medical records, which were introduced at such
hearing and which pertain to a person who has not expressly waived
his right to the confidentiality of such records, shall not be open
to the public nor is the public entitled to such records. If a
finding is made that probable cause does not exist, the public has
a right of access to the complaint or other document setting forth
the charges, the findings of fact and conclusions supporting such
finding that probable cause does not exist, if the subject
osteopathic physician consents to such access.
(d) If the board receives notice that an osteopathic physician
has been subjected to disciplinary action or has had his or her
credentials suspended or revoked by the board, a medical peer
review committee, a hospital or professional society, as defined in subsection (b) of this section, for three or more incidents in a
five-year period, the board shall require the osteopathic physician
to practice under the direction of another osteopathic physician
for a specified period to be established by the board.
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-9a. Imposing a one-time assessment on all insurance
carriers.
For the purpose of completely novating the physician liability
currently borne by the state under the West Virginia health care
provider professional liability insurance availability act found in
article twelve-b, chapter twenty-nine of this code, and to help
capitalize the physicians' mutual insurance company created
pursuant to article twenty-f of this chapter, and for all the
reasons set forth in section two of said article, the insurance
commissioner shall impose a special one-time assessment of two
thousand five hundred dollars on all insurers licensed under this
chapter for the privilege of writing insurance in the state of West
Virginia, except risk retention groups defined in subsection (f),
section four, article thirty-two of this chapter and risk
purchasing groups defined in subsection (e), section seventeen of
said article. The assessment is due and payable on the first day
of July, two thousand three. The commissioner shall transfer funds collected pursuant to this section to the physicians' mutual
insurance company.
ARTICLE 3. LICENSING, FEES AND TAXATION OF INSURERS.
§33-3-14. Annual financial statement and premium tax return;
remittance by insurer of premium tax, less certain deductions;
special revenue fund created.
(a) Every insurer transacting insurance in West Virginia shall
file with the commissioner, on or before the first day of March,
each year, a financial statement made under oath of its president
or secretary and on a form prescribed by the commissioner. The
insurer shall also, on or before the first day of March of each
year subject to the provisions of section fourteen-c of this
article, under the oath of its president or secretary, make a
premium tax return for the previous calendar year, on a form
prescribed by the commissioner showing the gross amount of direct
premiums, whether designated as a premium or by some other name,
collected and received by it during the previous calendar year on
policies covering risks resident, located or to be performed in
this state and compute the amount of premium tax chargeable to it
in accordance with the provisions of this article, deducting the
amount of quarterly payments as required to be made pursuant to the
provisions of section fourteen-c of this article, if any, less any
adjustments to the gross amount of the direct premiums made during
the calendar year, if any, and transmit with the return to the commissioner a remittance in full for the tax due. The tax is the
sum equal to two percent of the taxable premium, and also includes
any additional tax due under section fourteen-a of this article.
All taxes received by the commissioner shall be paid into the
insurance tax fund created in subsection (b) of this section:
Provided, That the portion of taxes received by the commissioner
from insurance policies for medical liability insurance as defined
in section three, article twenty-f of this chapter and from any
insurer on its medical malpractice line, shall be temporarily
dedicated to replenishing moneys appropriated from the tobacco
settlement account pursuant to subsection (c), section two, article
eleven-a, chapter four of this code. Upon determination by the
commissioner that these moneys have been fully replenished to the
tobacco settlement account, the commissioner shall resume
depositing taxes received from medical malpractice premiums as
provided in subsection (b) of this section.
(b) There is created in the state treasury a special revenue
fund, administered by the treasurer, designated the "insurance tax
fund". This fund is not part of the general revenue fund of the
state. It consists of all amounts deposited in the fund pursuant to
subsection (a) of this section, sections fifteen and seventeen of
this article, any appropriations to the fund, all interest earned
from investment of the fund and any gifts, grants or contributions
received by the fund.
(c) The treasurer shall dedicate and transfer from the
insurance tax fund to the regional jail and correctional facility
investment fund created under the provisions of section twenty-one,
article six, chapter twelve of this code, on or before the tenth
day of each month, an amount equal to one twelfth of the projected
annual investment earnings to be paid and the capital invested to
be returned, as certified to the treasurer by the investment
management board: Provided, That the amount dedicated and
transferred may not exceed twenty million dollars in any fiscal
year. In the event there are insufficient funds available in any
month to transfer the amount required pursuant to this subsection
to the regional jail and correctional facility investment fund, the
deficiency shall be added to the amount transferred in the next
succeeding month in which revenues are available to transfer the
deficiency. Each month a lien on the revenues generated from the
insurance premium tax, the annuity tax and the minimum tax,
provided in this section and sections fifteen and seventeen of this
article, up to a maximum amount equal to one twelfth of the
projected annual principal and return is granted to the investment
management board to secure the investment made with the regional
jail and correctional facility authority pursuant to section
twenty, article six, chapter twelve of this code. The treasurer
shall, no later than the last business day of each month, transfer
amounts the treasurer determines are not necessary for making refunds under this article to meet the requirements of subsection
(d), section twenty-one, article six, chapter twelve of this code,
to the credit of the general revenue fund. Commencing on the first
day of the month following the month in which the investment
created under the provisions of section twenty-one, article six,
chapter twelve of this code, is returned to the investment
management board, the treasurer shall transfer all amounts
deposited in the insurance tax fund as appropriated by the
Legislature.
§ 33-3-14a. Additional premium tax.
For the purpose of providing additional revenue for the state
general revenue fund, there is hereby levied and imposed, in
addition to the taxes imposed by section fourteen of this article,
an additional premium tax equal to one percent of taxable premiums.
Except as otherwise provided in this section, all provisions of
this article relating to the levy, imposition and collection of the
regular premium tax shall be applicable to the levy, imposition and
collection of the additional tax. All moneys received from the
additional tax imposed by this section, less deductions allowed by
this article for refunds and for costs of administration, shall be
received by the commissioner and shall be paid by him or her into
the state treasury for the benefit of the state fund: Provided,
That the portion of taxes received by the commissioner from
insurance policies for medical liability insurance as defined in section three, article twenty-f of this chapter and from any
insurer on its medical malpractice line, shall be temporarily
dedicated to replenishing moneys appropriated from the tobacco
settlement account pursuant to subsection (c), section two, article
eleven-a of chapter four of this code. Upon determination by the
commissioner that these moneys have been fully replenished to the
tobacco settlement account, the commissioner shall resume
depositing taxes received from medical malpractice premiums as
provided herein.
§33-3-14d. Additional fire and casualty insurance premium tax;
allocation of proceeds; effective date.
(a) For the purpose of providing additional revenue for
municipal policemen's and firemen's pension and relief funds and
the teachers retirement system reserve fund and for volunteer and
part volunteer fire companies and departments, there is hereby
levied and imposed an additional premium tax equal to one percent
of taxable premiums for fire insurance and casualty insurance
policies. For purposes of this section, casualty insurance does
not include insurance on the life of a debtor pursuant to or in
connection with a specific loan or other credit transaction or
insurance on a debtor to provide indemnity for payments becoming
due on a specific loan or other credit transaction while the debtor
is disabled as defined in the policy.
All moneys collected from this additional tax shall be
received by the commissioner and paid by him or her into a special
account in the state treasury, designated the municipal pensions
and protection fund. The net proceeds of this tax after
appropriation thereof by the Legislature is distributed in
accordance with the provisions of this section. :Provided,
That the
portion of taxes received by the commissioner from insurance
policies for medical liability insurance as defined in section
three, article twenty-f of this chapter and from any insurer on its
medical malpractice line,
shall be temporarily dedicated to
replenishing moneys appropriated from the tobacco settlement
account pursuant to subsection (c), section two, article eleven-a
of chapter four of this code. Upon determination by the
commissioner that these moneys have been fully replenished to the
tobacco settlement account, the commissioner shall resume
depositing taxes received from medical malpractice premiums as
provided herein.
(b) (1) Before the first day of August of each calendar year,
the treasurer of each municipality in which a municipal policemen's
or firemen's pension and relief fund has been established shall
report to the state treasurer the average monthly number of members
who worked at least one hundred hours per month and the average
monthly number of retired members of municipal policemen's or
firemen's pension systems during the preceding fiscal year.
(2) Before the first day of September of each calendar year,
the state treasurer shall allocate and authorize for distribution
the revenues in the municipal pensions and protection fund which
were collected during the preceding calendar year for the purposes
set forth in this section. Sixty-five percent of the revenues are
allocated to municipal policemen's and firemen's pension and relief
funds; twenty-five percent of the revenues shall be allocated to
volunteer and part volunteer fire companies and departments; and
ten percent of such allocated revenues are allocated to the
teachers retirement system reserve fund created by section
eighteen, article seven-a, chapter eighteen of this code:
Provided, That in any year the actuarial report required by section
twenty, article twenty-two, chapter eight of this code indicates no
actuarial deficiency in the municipal policemen's or firemen's
pension and relief fund, no revenues may be allocated from the
municipal pensions and protection fund to that fund. The revenues
from the municipal pensions and protection fund shall then be
allocated to all other pension funds which have an actuarial
deficiency.
(3) The moneys, and the interest earned thereon, in the
municipal pensions and protection fund allocated to volunteer and
part volunteer fire companies and departments shall be allocated
and distributed quarterly to the volunteer fire companies and
departments. Before each distribution date, the state fire marshal shall report to the state treasurer the names and addresses of all
volunteer and part volunteer fire companies and departments within
the state which meet the eligibility requirements established in
section eight-a, article fifteen, chapter eight of this code.
(c) (1) Each municipal pension and relief fund shall have
allocated and authorized for distribution a pro rata share of the
revenues allocated to municipal policemen's and firemen's pension
and relief funds based upon the corresponding municipality's
average monthly number of members who worked at least one hundred
hours per month during the preceding fiscal year. On and after the
first day of July, one thousand nine hundred ninety-seven, from the
growth in any moneys collected pursuant to the tax imposed by this
section there shall be allocated and authorized for distribution to
each municipal pension and relief fund, a pro rata share of the
revenues allocated to municipal policemen's and firemen's pension
and relief funds based upon the corresponding municipalities
average number of members who worked at least one hundred hours per
month and average monthly number of retired members. For the
purposes of this subsection, the growth in moneys collected from
the tax collected pursuant to this section is determined by
subtracting the amount of the tax collected during the fiscal year
ending the thirtieth day of June, one thousand nine hundred
ninety-six, from the tax collected during the fiscal year for which
the allocation is being made. All moneys received by municipal pension and relief funds under this section may be expended only
for those purposes described in sections sixteen through
twenty-eight, inclusive, article twenty-two, chapter eight of this
code.
(2) Each volunteer fire company or department shall receive an
equal share of the revenues allocated for volunteer and part
volunteer fire companies and departments.
(3) In addition to the share allocated and distributed in
accordance with subdivision (1) of this subsection, each municipal
fire department composed of full-time paid members and volunteers
and part volunteer fire companies and departments shall receive a
share equal to the share distributed to volunteer fire companies
under subdivision (2) of this subsection reduced by an amount equal
to the share multiplied by the ratio of the number of full-time
paid fire department members who are also members of a municipal
firemen's pension system to the total number of members of the fire
department.
(d) The allocation and distribution of revenues provided for
in this section are subject to the provisions of section twenty,
article twenty-two, and sections eight-a and eight-b, article
fifteen, chapter eight of this code.
§33-3-33. Surcharge on fire and casualty insurance policies to
benefit volunteer and part volunteer fire departments; special
fund created; allocation of proceeds; effective date.
(a) For the purpose of providing additional revenue for
volunteer fire departments, part-volunteer fire departments,
certain retired teachers and the teachers retirement reserve fund,
there is hereby authorized and imposed on and after the first day
of July, one thousand nine hundred ninety-two, on the policyholder
of any fire insurance policy or casualty insurance policy issued by
any insurer, authorized or unauthorized, or by any risk retention
group, a policy surcharge equal to one percent of the taxable
premium for each such policy. For purposes of this section,
casualty insurance may not include insurance on the life of a
debtor pursuant to or in connection with a specific loan or other
credit transaction or insurance on a debtor to provide indemnity
for payments becoming due on a specific loan or other credit
transaction while the debtor is disabled as defined in the policy.
The policy surcharge may not be subject to premium taxes, agent
commissions or any other assessment against premiums.
(b) The policy surcharge shall be collected and remitted to
the commissioner by the insurer or in the case of excess lines
coverage, by the resident excess lines broker, or if the policy is
issued by a risk retention group, by the risk retention group. The
amount required to be collected under this section shall be
remitted to the commissioner on a quarterly basis on or before the
twenty-fifth day of the month succeeding the end of the quarter in
which they are collected, except for the fourth quarter for which the surcharge shall be remitted on or before the first day of March
of the succeeding year.
(c) Any person failing or refusing to collect and remit to the
commissioner any policy surcharge and whose surcharge payments are
not postmarked by the due dates for quarterly filing is liable for
a civil penalty of up to one hundred dollars for each day of
delinquency, to be assessed by the commissioner. The commissioner
may suspend the insurer, broker or risk retention group until all
surcharge payments and penalties are remitted in full to the
commissioner.
(d) One half of all money from the policy surcharge shall be
collected by the commissioner who shall disburse the money received
from the surcharge into a special account in the state treasury,
designated the "fire protection fund". The net proceeds of this
portion of the tax, and the interest thereon after appropriation by
the Legislature shall be distributed quarterly on the first day of
the months of January, April, July and October to each volunteer
fire company or department on an equal share basis by the state
treasurer.
(1) Before each distribution date, the state fire marshal
shall report to the state treasurer the names and addresses of all
volunteer and part volunteer fire companies and departments within
the state which meet the eligibility requirements established in
section eight-a, article fifteen, chapter eight of this code.
(2) The remaining fifty percent of the moneys collected shall
be transferred to the teachers retirement system to be disbursed
according to the provisions of sections twenty-six-j, twenty-six-k
and twenty-six-l, article seven-a, chapter eighteen of this code.
Any balance remaining after the disbursements authorized by this
subdivision have been paid shall be paid by the teachers retirement
system into the teachers retirement system reserve fund.
:Provided,
That the portion of taxes or surcharges received by the
commissioner from insurance policies for medical liability
insurance as defined in section three, article twenty-f of this
chapter and from any insurer on its medical malpractice line, shall
be temporarily dedicated to replenishing moneys appropriated from
the tobacco settlement account pursuant to subsection (c), section
two, article eleven-a of chapter four of this code. Upon
determination by the commissioner that these moneys have been fully
replenished to the tobacco settlement account, the commissioner
shall resume depositing taxes and surcharges received from medical
malpractice premiums as provided herein.
(e) The allocation, distribution and use of revenues provided
in the fire protection fund are subject to the provisions of
sections eight-a and eight-b, article fifteen, chapter eight of
this code.
ARTICLE 4. GENERAL PROVISIONS.
§33-4-15a. Credit for reinsurance; definitions; requirements; trust
accounts; reductions from liability; security; effective date.
(a) For purposes of this section, an "accredited reinsurer" is
one which:
(1) Has filed an application for accreditation and received a
letter of accreditation from the commissioner;
(2) Is licensed to transact insurance or reinsurance in at
least one of the fifty states of the United States or the District
of Columbia or, in the case of a United States branch of an alien
assuming insurer, is entered through and licensed to transact
insurance or reinsurance in at least one of the fifty states of the
United States or the District of Columbia;
(3) Has filed with the application a certified statement that
the company submits to this state's jurisdiction and that the
company will comply with the laws, and rules and regulations of the
state of West Virginia;
(4) Has filed with the application a certified statement that
the company submits to the examination authority granted the
commissioner by section nine, article two of this chapter and will
pay all examination costs and fees as required by that section, and
the one-time assessment on insurers imposed under section nine-a,
article two of this chapter;
(5) Has filed with the application a copy of its most recent
annual statement in a form consistent with the requirements of subdivision (8) of this subsection and a copy of its last audited
financial statement;
(6) Has filed any other information the commissioner requests
to determine that the company qualifies for accreditation under
this section;
(7) Has remitted the applicable processing fee with its
application for accreditation;
(8) Files with the commissioner after initial accreditation on
or before the first day of March of each year a true statement of
its financial condition, transactions and affairs as of the
preceding thirty-first day of December. The statement shall be on
the appropriate national association of insurance commissioners
annual statement blank; shall be prepared in accordance with the
national association of insurance commissioners annual statement
instructions; and shall follow the accounting practices and
procedures prescribed by the national association of insurance
commissioners accounting practices and procedures manual as
amended. The statement shall be accompanied by the applicable
annual statement filing fee. The commissioner may grant extensions
of time for filing of this annual statement upon application by the
accredited reinsurer; and
(9) Files with the commissioner after initial accreditation by
the first day of June of each year a copy of its audited financial statement for the period ending the preceding thirty-first day of
December.
(b) If the commissioner determines that the assuming insurer
has failed to continue to meet any of these qualifications, he or
she may upon written notice and hearing, as prescribed by section
thirteen, article two of this chapter, revoke an assuming insurer's
accreditation. Credit shall not be allowed to a ceding insurer if
the assuming insurers' insurer's accreditation has been revoked by
the commissioner after notice and hearing.
(c) Credit for reinsurance shall be allowed a domestic ceding
insurer or any foreign or alien insurer transacting insurance in
West Virginia that is domiciled in a jurisdiction that employs
standards regarding credit for reinsurance that are not
substantially similar to those applicable under this article as
either an asset or a deduction from liability on account of
reinsurance ceded only when the reinsurer meets one of the
following requirements:
(1) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer which is licensed to transact insurance or
reinsurance in this state.
(2) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer which is accredited as a reinsurer in this
state prior to the effective date of the reinsurance contract.
(3) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer which is domiciled and licensed in, or in the
case of a United States branch of an alien assuming insurer, is
entered through one of the fifty states of the United States or the
District of Columbia and which employs standards regarding credit
for reinsurance substantially similar to those applicable under
this statute, and the ceding insurer provides evidence suitable to
the commissioner that the assuming insurer:
(A) Maintains a surplus as regards policyholders in an amount
not less than twenty million dollars: Provided, That the
requirements of this paragraph do not apply to reinsurance ceded
and assumed pursuant to pooling arrangements among insurers in the
same holding company system;
(B) The ceding insurer provides the commissioner with a
certified statement from the assuming insurer that the assuming
insurer submits to the authority of this state to examine its books
and records granted the commissioner by section nine, article two
of this chapter and will pay all examination costs and fees as
required by that section; and
(C) The reinsurer complies with the provisions of subdivision
(6), subsection (c) herein.
(4) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer which maintains a trust fund as required by
subsection (d) herein in a qualified United States financial institution, as defined by this section, for the payment of the
valid claims of its United States policyholders and ceding
insurers, their assigns and successors in interest, and complies
with the provisions of subdivision (6) herein.
(5) Credit shall be allowed when the reinsurance is ceded to
an assuming insurer not meeting the requirements of subdivisions
(1) through (4), inclusive, subsection (c) of this section, but
only with respect to the insurance of risks located in
jurisdictions where such reinsurance is required by applicable law
or regulation of that jurisdiction.
(6) If the assuming insurer is not licensed or accredited to
transact insurance or reinsurance in this state, the credit
permitted by subdivisions (3) and (4) of this subsection shall not
be allowed unless the assuming insurer agrees in the reinsurance
agreements:
(A) That in the event of the failure of the assuming insurer
to perform its obligations under the terms of the reinsurance
agreement, the assuming insurer, at the request of the ceding
insurer, shall submit to the jurisdiction of any court of competent
jurisdiction in any state of the United States, shall comply with
all requirements necessary to give such court jurisdiction, and
shall abide by the final decision of such court or of any appellate
court in the event of an appeal; and
(B) To designate the secretary of state as its true and lawful
attorney upon whom may be served any lawful process in any action,
suit or proceeding instituted by or on behalf of the ceding
company. Process shall be served upon the secretary of state, or
accepted by him or her, in the same manner as provided for service
of process upon unlicensed insurers under section thirteen of this
article: Provided, That this provision is not intended to conflict
with or override the obligation of the parties to a reinsurance
agreement to arbitrate their disputes, if such an obligation is
created in the agreement.
(d) Whenever an assuming insurer establishes a trust fund for
the payment of claims pursuant to the provisions of this section,
the following requirements shall apply:
(1) The assuming insurer shall report annually to the
commissioner information substantially the same as that required to
be reported on the national association of insurance commissioners
annual statement form by licensed insurers to enable the
commissioner to determine the sufficiency of the trust fund. In
the case of a single assuming insurer, the trust shall consist of
a trusteed account representing the assuming insurer's liabilities
attributable to business written in the United States and, in
addition, the assuming insurer shall maintain a trusteed surplus of
not less than twenty million dollars. In the case of a group,
including incorporated and individual unincorporated underwriters, the trust shall consist of a trusteed account representing the
group's liabilities attributable to business written in the United
States and, in addition, the group shall maintain a trusteed
surplus of which one hundred million dollars shall be held jointly
for the benefit of United States ceding insurers of any member of
the group. The incorporated members of the group shall not be
engaged in any business other than underwriting as a member of the
group and shall be subject to the same level of solvency regulation
and control by the group's domiciliary regulator as are the
unincorporated members. The group shall make available to the
commissioner an annual certification of the solvency of each
underwriter by the group's domiciliary regulator and its
independent public accountants.
(2) In the case of a group of incorporated insurers under
common administration which complies with the filing requirements
contained in the previous paragraph; which has continuously
transacted an insurance business outside the United States for at
least three years immediately prior to making application for
accreditation; which submits to this state's authority to examine
its books and records and bears the expense of the examination; and
which has aggregate policyholders' surplus of ten billion dollars,
the trust shall be in an amount equal to the group's several
liabilities attributable to business ceded by United States ceding
insurers to any member of the group pursuant to reinsurance contracts issued in the name of the group. The group shall also
maintain a joint trusteed surplus of which one hundred million
dollars shall be held jointly for the benefit of United States
ceding insurers of any member of the group as additional security
for any such liabilities. Each member of the group shall make
available to the commissioner an annual certification of the
member's solvency by the member's domiciliary regulator and its
independent public accountants.
(3) Any trust that is subject to the provisions of this
section shall be established in a form approved by the
commissioner. The trust instrument shall provide that contested
claims shall be valid and enforceable upon the final order of any
court of competent jurisdiction in the United States. The trust
shall vest legal title to its assets in the trustees of the trust
for its United States policyholders and ceding insurers, their
assigns and successors in interest. The trust and the assuming
insurer shall be subject to examination as determined by the
commissioner. The trust described herein shall remain in effect
for as long as the assuming insurer shall have outstanding
obligations due under the reinsurance agreements subject to the
trust.
(4) No later than the twenty-eighth day of February of each
year the trustees of the trust shall report to the commissioner in
writing setting forth the balance of the trust and listing the trust's investments at the preceding year's end. The trustees
shall certify the date of termination of the trust, if so planned,
or certify that the trust shall not expire prior to the next
following December thirty-first.
(e) A reduction from liability for the reinsurance ceded by a
ceding insurer subject to the requirements of this article to an
assuming insurer not meeting the requirements of subsection (c) of
this section shall be allowed in an amount not exceeding the
liabilities carried by the ceding insurer. The reduction shall be
in the amount of funds held by or on behalf of the ceding insurer,
including funds held in trust for the ceding insurer, under a
reinsurance contract with the assuming insurer as security for the
payment of obligations thereunder: Provided, That the security is
held in the United States subject to withdrawal solely by, and
under the exclusive control of, the ceding insurer; or, in the case
of a trust, held in a qualified United States financial
institution, as defined by this section. The security may be in
the form of:
(1) Cash;
(2) Securities listed by the securities valuation office of
the national association of insurance commissioners and qualifying
as admitted assets; or
(3) Clean, irrevocable, unconditional letters of credit,
issued or confirmed by a qualified United States financial institution, as defined by this section, no later than the thirty-
first day of December of the year for which filing is being made,
and in the possession of the ceding company on or before the filing
date of its annual statement: Provided, That letters of credit
meeting applicable standards of issuer acceptability as of the
dates of their issuance or confirmation shall, notwithstanding the
issuing or confirming institution's subsequent failure to meet
applicable standards of issuer acceptability, continue to be
acceptable as security until their expiration, extension, renewal,
modification or amendment, whichever first occurs.
(f) For purposes of this section, a "qualified United States
financial institution" means an institution that:
(1) Is organized or licensed under the laws of the United
States or any state thereof;
(2) Is regulated, supervised and examined by United States
federal or state authorities having regulatory authority over banks
and trust companies; and
(3) Has been determined by either the commissioner, or the
securities valuation office of the national association of
insurance commissioners, to meet the standards of financial
condition and standing as are considered necessary and appropriate
to regulate the quality of financial institutions whose letters of
credit will be acceptable to the commissioner.
(g) A "qualified United States financial institution" means,
for purposes of those provisions of this law specifying those
institutions that are eligible to act as a fiduciary of a trust, an
institution that:
(1) Is organized or, in the case of a United States branch or
agency office of a foreign banking organization, licensed under the
laws of the United States or any state thereof and has been granted
authority to operate with fiduciary powers; and
(2) Is regulated, supervised and examined by federal or state
authorities having regulatory authority over banks and trust
companies.
(h) The provisions of this section shall apply to all cessions
on or after the first day of January, one thousand nine hundred
ninety-three.
ARTICLE 20B. RATES AND MALPRACTICE INSURANCE POLICIES.
§33-20B-2. Ratemaking.
Any and all modifications of rates shall be made in accordance
with the following provisions:
(a) Due consideration shall be given to the past and
prospective loss experience within and outside this state.
(b) Due consideration shall be given to catastrophe hazards,
if any, to a reasonable margin for underwriting profit and
contingencies, to dividends, savings or unabsorbed premium deposits
allowed or returned by insurers to their policyholders, members or subscribers and actual past expenses and demonstrable prospective
or projected expenses applicable to this state.
(c) Rates shall not be excessive, inadequate, predatory or
unfairly discriminatory.
(d) Risks may not be grouped by territorial areas for the
establishment of rates and minimum premiums.
(e) An insurer may use guide "A" rates and other nonapproved
rates, also known as "consent to rates": Provided, That the
insurer shall, prior to entering into an agreement with an
individual provider or any health care entity, submit guide "A"
rates and other nonapproved rates to the commissioner for review
and approval: Provided, however, That the commissioner shall
propose legislative rules for promulgation in accordance with the
provisions of article three, chapter twenty-nine-a of this code,
which set forth the standards and procedure for reviewing and
approving guide "A" rates and other nonapproved rates. No insurer
may require execution of a consent to rate endorsement for the
purpose of offering to issue or issuing a contract or coverage to
an insured or continuing an existing contract or coverage at a rate
in excess of that provided by a filing otherwise applicable.
(f) Except to the extent necessary to meet the provisions of
subdivision (c) of this section, uniformity among insurers, in any
matters within the scope of this section, is neither required nor
prohibited.
(g) Rates made in accordance with this section may be used
subject to the provisions of this article.
§33-20B-3. Rate filings.
(a) On or before the first day of July, two thousand four and
on the first day of July each year thereafter, or at such other
time specified by the commissioner, every insurer offering
malpractice insurance in this state shall make a rate filing, in
accordance with the provisions of section four, article twenty of
this chapter, regardless of whether any increase or decrease is
indicated, Every filing for malpractice insurance made pursuant to
subsection (a), section four, article twenty of this chapter shall
state the proposed effective date of the filing, the character and
extent of the coverage contemplated and information in support of
the filing. The information furnished in support of a filing shall
include: (i) The experience or judgment of the insurer or rating
organization making the filing; (ii) its interpretation of any
statistical data the filing relies upon; (iii) the experience of
other insurers or rating organizations; (iv) the character and
extent of the coverage contemplated; (v) the proposed effective
date of any requested change and (iv) (vi) any other relevant
factors required by the commissioner. When a filing is not
accompanied by the information required by this section upon which
the insurer supports the filing, the commissioner shall require the
insurer to furnish the information and, in that event, the waiting period prescribed by subsection (b) of this section shall commence
as of the date the information is furnished.
A filing and any supporting information shall be open to
public inspection as soon as the filing is received by the
commissioner. Any interested party may file a brief with the
commissioner supporting his or her position concerning the filing.
Any person or organization may file with the commissioner a signed
statement declaring and supporting his or her or its position
concerning the filing. Upon receipt of any such statement prior to
the effective date of the filing, the commissioner shall mail or
deliver a copy of the statement to the filer, which may file a
reply. This section is not applicable to any memorandum or
statement of any kind by any employee of the commissioner.
(b) Every filing shall be on file for a waiting period of
ninety days before it becomes effective. The commissioner may
extend the waiting period for an additional period not to exceed
thirty days if he or she gives written notice within the waiting
period to the insurer or rating organization which made the filing
that he or she needs the additional time for the consideration of
the filing. Upon written application by the insurer or rating
organization, the commissioner may authorize a filing which he or
she has reviewed to become effective before the expiration of the
waiting period or any extension of the waiting period. A filing
shall be deemed to meet the requirements of this article unless disapproved by the commissioner within the waiting period or any
extension thereof.
(c) No insurer shall make or issue a contract or policy of
malpractice insurance except in accordance with the filings which
are in effect for the insurer as provided in this article.
§33-20B-3a. Rate prohibitions.
Reduced rates charged for certain specialties or risks found
by the commissioner to be predatory, designed to gain market share
or otherwise inadequate are prohibited.
ARTICLE 20F. PHYSICIANS' MUTUAL INSURANCE COMPANY.
§33-20F-1a. Scope of article.
This article applies only to the physicians' mutual insurance
company created as a novation of the medical professional liability
insurance programs created in article twelve-b, chapter twenty-nine
of this code.
§33-20F-2. Findings and purpose.
(a) The Legislature finds that:
(1) There is a nationwide crisis in the field of medical
liability insurance;
(2) Similar crises have occurred at least three times during
the past three decades;
(3) Such crises are part of a naturally recurring cycle of a
hard market period, when medical professional liability coverage is difficult to obtain, and a soft market period, when coverage is
more readily available;
__(4) Such crises are particularly acute in this state due to
the small size of the insurance market;
__(5) During a hard market period, insurers tend to flee this
state, creating a crisis for physicians who are left without
professional liability coverage;
__(3) (6) Physicians During the current crisis, physicians in
West Virginia find it increasingly difficult, if not impossible, to
obtain medical liability insurance either because coverage is
unavailable or unaffordable;
(4) (7) The difficulty or impossibility in of obtaining
medical liability insurance may result in many qualified physicians
leaving the state;
(5) (8) Access to quality health care is of utmost importance
to the citizens of West Virginia;
(6) (9) A mechanism is needed to remedy provide an enduring
solution to this recurring medical liability crisis; and
(7) (10) A physicians' mutual insurance company or a similar
entity has proven to be a successful mechanism in other states for
helping physicians secure insurance and for stabilizing the
insurance market;
(11) There is a substantial public interest in creating a
method to provide a stable medical liability market in this state;
__(12) The state has attempted to temporarily alleviate the
current medical crisis by the creation of programs to provide
medical liability coverage through the board of risk and insurance
management;
__(13) The state-run program is a substantial actual and
potential liability to the state;
__(14) There is substantial public benefit in transferring the
actual and potential liability of the state to the private sector
and creating a stable self-sufficient entity which will be a source
of liability insurance coverage for physicians in this state;
__(15) A stable, financially viable insurer in the private
sector will provide a continuing source of insurance funds to
compensate victims of medical malpractice; and
__(16) Because the public will greatly benefit from the
formation of a physicians' mutual insurance company, state efforts
to encourage and support the formation of such an entity, including
providing a low-interest loan for a portion of the entity's initial
capital, is in the clear public interest.
(b) The purpose of this article is to create a mechanism for
the formation of a physicians' mutual insurance company that will
provide:
(1) A means for physicians to obtain medical liability
insurance that is available and affordable; and
(2) Compensation to persons who suffer injuries as a result of
medical professional liability as defined in subsection (d),
section two, article seven-b, chapter fifty-five of this code.
§33-20F-3. Definitions.
For purposes of this article, the term:
(a) "Board of medicine" means the West Virginia board of
medicine as provided in section five, article three, chapter thirty
of this code.
(b) "Board of osteopathy" means the West Virginia board of
osteopathy as provided in section three, article fourteen, chapter
thirty of this code.
(c) "Commissioner" means the insurance commissioner of West
Virginia as provided in section one, article two, chapter thirty-
three of this code.
(d) "Company" means any the physicians' mutual insurance
company created pursuant to the terms of this article.
(e) "Medical liability insurance" means, for the purposes of
this article: All policies previously issued by the board of risk
and insurance management pursuant to article twelve-b, chapter
twenty-nine of this code which are transferred by the board of risk
and insurance management to the company, pursuant to subsection
(b), section nine of this article and all policies of insurance
subsequently issued by the company to physicians, physician
corporations, physician-operated clinics and such other individual health care providers as the commissioner may, upon written
application of the company, approve.
__(e) (f) "Physician" means an individual who is licensed by the
board of medicine or the board of osteopathy to practice medicine
or podiatry in West Virginia.
(g) "Transfer date" means the date on which the assets,
obligations and liabilities resulting from the the board of risk
and insurance management's issuance of medical liability policies
to physicians, physician corporations and physician-operated
clinics pursuant to article twelve-b, chapter twenty-nine of this
code are transferred to the company.
§33-20F-4. Authorization for creation of company; requirements and
limitations.
(a) Subject to the provisions of this article, a physicians'
mutual insurance company is hereby authorized to may be created as
a domestic, private, nonstock, nonprofit corporation. As an
incentive for its creation, any the company that meets the
requirements set forth in this article may be eligible for funds
from the Legislature in accordance with the provisions of section
seven of this article. A The company must remain for the duration
of its existence a domestic mutual insurance company owned by its
policyholders and may not be converted into a stock corporation, a
for-profit corporation or any other entity not owned by its
policyholders. The company may not declare any dividend to its policyholders; sell, assign or transfer substantial assets of the
company; or write coverage outside this state, except for counties
adjoining this state, until after any and all debts owed by the
company to the state have been fully paid.
(b) For the duration of its existence, a the company is not
and may not be considered a department, unit, agency, or
instrumentality of the state for any purpose. All debts, claims,
obligations, and liabilities of a the company, whenever incurred,
shall be the debts, claims, obligations, and liabilities of the
company only and not of the state or of any department, unit,
agency, instrumentality, officer, or employee of the state.
(c) The moneys of a the company are not and may not be
considered part of the general revenue fund of the state. The
debts, claims, obligations, and liabilities of a the company are
not and may not be considered a debt of the state or a pledge of
the credit of the state.
(d) A The company is not subject to provisions of article
nine-a, chapter six of this code or the provisions of article one,
chapter twenty-nine-b of this code.
(e) (1) All premiums collected by the company are subject to
the premium taxes and surcharges contained in sections fourteen,
fourteen-a, fourteen-d and thirty three, article three of this
chapter: Provided, That while the loan to the company of moneys
from the West Virginia tobacco settlement medical trust fund pursuant to section nine of this article remains outstanding, the
commissioner may waive the company's premium taxes and surcharges
if payment would render the company insolvent or otherwise
financially impaired.
__(2) On and after the first day of July, two thousand and
three, any premium taxes and surcharges paid by the company and by
any insurer on its medical malpractice line pursuant to sections
fourteen, fourteen-a, fourteen-d and thirty-three, article three of
this chapter, shall be temporarily applied toward replenishing the
moneys appropriated from the West Virginia tobacco settlement
medical trust fund pursuant to subsection (c), section two, article
eleven-a, chapter four of this code pending repayment of the loan
of such moneys by the company.
__(3) The state treasurer shall notify the commissioner when the
moneys appropriated from the West Virginia tobacco settlement
medical trust have been fully replenished, at which time the
commissioner shall resume depositing premium taxes and surcharges
diverted pursuant to subdivision (2) of this subsection in
accordance with the provisions of sections fourteen, fourteen-a,
fourteen-d and thirty-three, article three of this chapter.
__(4) Payments received by the treasurer from the company in
repayment of any outstanding loan made pursuant to section nine of
this article shall be deposited in the West Virginia tobacco
settlement medical trust fund and dedicated to replenishing the moneys appropriated therefrom under subsection (c), section two,
article eleven-a, chapter four of this code. Once the moneys
appropriated from the West Virginia tobacco settlement medical
trust fund have been fully replenished, the treasurer shall deposit
any payments from the company in repayment of any outstanding loan
made pursuant to section nine of this article in said fund and
transfer a like amount from said fund to the commissioner for
disbursement in accordance with the provisions of sections
fourteen, fourteen-a, fourteen-d and thirty-three, article three of
this chapter.
§33-20F-5. Governance and organization.
(a)(1) The board of risk and insurance management shall
implement the initial formation and organization of the company as
provided by this article.
__(2) From the first day of July, two thousand three, until the
thirtieth day of June, two thousand three, the company shall be
governed by a provisional board of directors consisting of the
members of the board of risk and insurance management, the dean of
the West Virginia University School of Medicine or a physician
representative designated by him or her, and five physician
directors, elected by the policy holders whose policies are to be
transferred to the company pursuant to section nine of this
article.
__(3) Only physicians who are licensed to practice medicine in
this state pursuant to article three or article fourteen, chapter
thirty of this code and who have purchased medical professional
liability coverage from the board of risk and insurance management
are eligible to serve as physician directors on the provisional
board of directors. One of the physician directors shall be
selected from a list of three physicians nominated by the West
Virginia medical association. The board of risk and insurance
management shall develop procedures for the nomination of the
remaining physician directors and for the conduct of the election,
to be held no later than the first day of June, two thousand three,
of all of the physician directors, including, but not limited to,
giving notice of the election to the policy holders. These
procedures shall be exempt from the provisions of article three,
chapter twenty-nine of this code.
__(a)(b) From the first day of July, two thousand four, A the
company is to shall be governed by a board of directors consisting
of eleven directors, as follows:
(1) At least, but not more than, four Five directors who are
physicians licensed to practice medicine in this state by the board
of medicine or the board of osteopathy, and who represent the
various physician organizations within the state; including at
least one general practitioner and one specialist: Provided, That
only physicians who have purchased medical professional liability coverage from the board of risk and insurance management are
eligible to serve as physician representatives on the company's
first board of directors.
(2) Three directors who have substantial experience as an
officer or employee of a company in the insurance industry;
(3) At least two Two directors with general knowledge and
experience in business management who are officers and employees of
the company and are responsible for the daily management of the
company; and
(4) Two directors with general knowledge and experience in
business management. One director who is a dean of a West Virginia
school of medicine or osteopathy or his or her designated physician
representative. This director's position shall rotate annually
among the dean of the West Virginia University School of Medicine,
the dean of the Marshall University Joan C. Edwards School of
Medicine and the dean of the West Virginia School of Osteopathic
Medicine. This director shall serve until such time as the moneys
loaned to the company from the West Virginia tobacco settlement
medical trust fund have been replenished as provided in subsection
(e), subsection four of this article. After the moneys have been
replenished the West Virginia tobacco settlement medical trust
fund, this director shall be a physician licensed to practice
medicine in this state by the board of medicine or the board of
osteopathy.
__(b) (c) In addition to the eleven directors required by
subsection (a) (b) of this section, the by-laws bylaws of a the
company may provide for the addition of at least two directors who
represent an entity or institution which lends or otherwise
provides funds to the company.
(c) Relating to the directors provided for in subsection (a)
of this section and to the extent possible, the directors are to
reside in different geographical areas of the state. The number of
such directors from any one congressional district in the state may
not exceed the number of directors from any other congressional
district in the state by more than two.
(d) The directors and officers of a the company are to be
chosen in accordance with the articles of incorporation and bylaws
of the company. The initial board of directors selected in
accordance with the provisions of subdivision (3), subsection (a)
of this section shall serve for the following terms: (1) Three for
four-year terms; (2) three for three-year terms; (3) three for two-
year terms; and (4) two for one-year terms. Thereafter, the
directors shall serve staggered terms of four years. If an
additional directors are director is added to the board as provided
in subsection (b) (c) of this section, the his or her initial term
for those directors is shall be for four years. No director chosen
pursuant to subsection (a) (b) of this section may serve more than
two consecutive terms.
(e) The incorporators are to prepare and file articles of
incorporation and bylaws in accordance with the provisions of this
article and the provisions of chapters thirty-one and thirty-three
of this code.
§33-20F-6. Management and administration of the company.
(a) If it is determined that the services of a third-party
administrator or other firm or company are necessary to properly
administer the affairs of the company prior to the first day of
July, two thousand four, the provisional board of directors shall
avail itself of any existing contracts entered into by the board of
risk and insurance management to manage its affairs. The terms of
the company's participation in the contract shall be established by
the board of risk and insurance management.
__(b) The provisional board of directors may enter into a one-
year contract with a third-party administrator or other firm or
company with suitable qualifications and experience to administer
some or all of the affairs of the company from the first day of
July, two thousand four, until the thirtieth day of June, two
thousand five, subject to the continuing direction of the board of
directors as required by the articles of incorporation and bylaws
of the company, and the contract. Any contract entered into
pursuant to this subsection must be awarded by competitive bidding
not later than the first day of November, two thousand three.
__(a)(c) After the first day of July, two thousand four, If if
the company's board of directors determines that the affairs of a
the company may be administered suitably and efficiently, the
company may enter into a contract with a licensed insurer, licensed
health service plan, insurance service organization, third-party
administrator, insurance brokerage firm or other firm or company
with suitable qualifications and experience to administer some or
all of the affairs of the company, subject to the continuing
direction of the board of directors as required by the articles of
incorporation and bylaws of the company, and the contract. All
such contracts shall be awarded by competitive bidding.
__(b) (d) The company shall file a true copy of the contract
with the commissioner as provided in section twenty-one, article
five of this chapter.
§33-20F-7. Initial capital and surplus; special assessment.
(a) A portion of the initial capital and surplus of a the
company may be provided by direction of the Legislature, in an
amount, upon terms and conditions, and from sources as may be
determined by the Legislature in its sole discretion. There is
hereby created in the state treasury a special revenue account
designated as the "Board of Risk and Insurance Management
Physicians' Mutual Insurance Company Account" solely for the
purpose of receiving moneys transferred from the West Virginia
Tobacco Medical Trust Fund pursuant to sub-section (c), section two, article eleven-a, chapter four of this code for the company's
use as initial capital and surplus.
(b) In the event that a portion of the initial capital and
surplus of a company is provided by direction of the Legislature
pursuant to subsection (a) of this section, On the first day of
July, two thousand three, a special one-time assessment, in the
amount of one thousand dollars, for the privilege of practicing in
West Virginia may shall be assessed imposed on every physician
licensed by the board of medicine and every physician licensed or
by the board of osteopathy to practice for the privilege of
practicing medicine in this state: The executive director of the
medical licensing board shall establish the amount of the
assessment, in consultation with the board of directors of the
company or their designee. The amount of the assessment may not
exceed one thousand dollars. Provided, That the following
physicians shall be exempt from the assessment:
__(1)A faculty physician who meets the criteria for full-time
faculty under subsection (f), section one, article eight, chapter
eighteen-b of this code, who is a full-time employee of a school of
medicine or osteopathic medicine in this state, and who does not
maintain a private practice;
__(2) A resident physician who is a graduate of a medical school
or college of osteopathic medicine enrolled and who is participating in an accredited full-time program of post-graduate
medical education in this state;
__(3) A physician who has presented suitable proof that he or
she is on active duty in armed forces of the United States and who
will not be reimbursed by the armed forces for the assessment;
__(4) A physician who receives more than fifty percent of his or
her practice income from providing services to federally qualified
health center as that term is defined in 42 U. S. C. §1396d(l)(2);
and
__(5) A physician who practices solely under a special volunteer
medical license authorized by section ten-a, article three or
section twelve-b, article fourteen, chapter thirty of this code.
The assessment is to be assessed imposed and collected by the board
of medicine and the board of osteopathy on forms as prescribed by
the board of medicine and the board of osteopathy may prescribe
each licensing board.
(c) If the special assessment is collected pursuant to
subsection (b) of this section, the Legislature hereby dedicates
the The entire proceeds of the special assessment collected
pursuant to subsection (b) of this section shall be dedicated to
the company. The board of medicine and the board of osteopathy
shall promptly pay over to the company all amounts collected
pursuant to this section to be used as policyholder surplus for the
company.
__(d) Any physician who applies to purchase insurance from the
company and who has not paid the assessment pursuant to subsection
(b) of this section shall pay one thousand dollars to the company
as a condition of obtaining insurance from the company.
§33-20F-8. Application for license; authority of commissioner.
(a) As soon as practical, a the company desiring to do
business established pursuant to the provisions of this article
shall file its corporate charter and by-laws bylaws with the
commissioner and apply for a license to transact insurance in this
state. Notwithstanding any other provision of this code, the
commissioner must shall act on the documents within fifteen days of
the filing by a the company.
(b) In recognition of the medical liability insurance crisis
in this state at the time of enactment of this article, and the
critical need to expedite the initial operation of a the company,
the Legislature hereby authorizes the commissioner to review the
documentation submitted by a the company and to determine the
initial capital and surplus requirements of a the company,
notwithstanding the provisions of section five-b, article three of
this chapter. The commissioner has the sole discretion to
determine the capital and surplus funds of a the company and to
monitor the economic viability of the company during its initial
operation and duration on not less than a monthly basis. A The
company shall furnish the commissioner with all information and cooperate in all respects as may be necessary for the commissioner
to perform the duties set forth in this section and in other
provisions of this chapter, including annual audited financial
statements required by article thirty-three of this chapter and
fidelity bond coverage for each of the directors of the company.
(c) Subject to the provisions of subsection (d) of this
section, the commissioner may waive other requirements imposed on
mutual insurance companies by the provisions of this chapter as the
commissioner determines is necessary to enable a the company to
begin insuring physicians in this state at the earliest possible
date.
(d) Within thirty-six forty months of the date of the issuance
of its license to transact insurance, a the company must shall
comply with the capital and surplus requirements set forth in
section five-b, article three of this chapter. and with all other
requirements imposed upon mutual insurance companies by the
provisions of this chapter.
§33-20F-9. Kinds of coverage authorized; transfer of policies from
the state board of risk and insurance management; risk
management practices authorized.
(a) Upon approval by the commissioner for a license to
transact insurance in this state, a the company may issue
nonassessable policies of malpractice insurance, as defined in
subdivision (9), subsection (e), section ten, article one of this chapter, insuring a physician. Additionally, a the company may
issue other types of casualty or liability insurance as may be
approved by the commissioner.
(b) On the transfer date:
__(1)
A The company must shall accept from the board of risk and
insurance management the transfer of medical malpractice any and
all medical liability insurance obligations and risks of existing
or in force contracts of insurance on physicians covering
physicians, physician corporations and physician-operated clinics
issued by the board pursuant to article twelve-b, chapter twenty-
nine of this code. from the state board of risk and insurance.
Subject to approval by the commissioner, a company may impose
reasonable terms and conditions upon any transfer from the state
board of risk and insurance management, but the terms and
conditions may not be designed or construed to prohibit or unduly
restrict such transfers. The transfer shall not include medical
liability insurance obligations and risks of existing or in-force
contracts of insurance covering hospitals and nonphysician
providers;
__(2) The company shall assume all responsibility for and
defend, indemnify and hold harmless the board of risk and insurance
management and the state with respect to any and all liabilities
and duties arising from the assets and responsibilities transferred to the company pursuant to article twelve-b, chapter twenty-nine of
this code;
__(3) The board of risk and insurance management shall disburse
and pay to the company any funds attributable to premiums paid for
the insurance obligations transferred to the company pursuant to
subdivision (1) of this subsection, with earnings thereon, less
paid losses and expenses, and deposited in the medical liability
fund created by section ten, article twelve-b, chapter twenty-nine
of this code as reflected on the ledgers of the board of risk and
insurance management;
(4) The board of risk and insurance management shall disburse
and pay to the company any funds in the board of risk and insurance
management physicians' mutual insurance company account created by
section seven of this article. All funds in this account shall be
transferred pursuant to terms of a surplus note or other loan
arrangement satisfactory to the board of risk and insurance
management and the insurance commissioner.
__(c) The board of risk and insurance management shall cause an
independent actuarial study to be performed to determine the amount
of all paid losses, expenses and assets associated with the
policies the board has in force pursuant to article twelve-b,
chapter twenty-nine of this code. The actuarial study shall
determine the paid losses, expenses and assets associated with the
policies to be transferred to the company pursuant to subsection (b) of this section and the paid losses, expenses and assets
associated with those policies retained by the board. The
determination shall not include liabilities created by issuance of
new tail insurance policies for nonphysician providers authorized
by subsection (n), section six, article twelve-b, chapter twenty-
nine of this code.
__(d) The board of risk and insurance management may enter into
such agreements, including loan agreements, with the company that
are necessary to accomplish the transfers addressed in this
section.
__(c) (e) A The company shall make policies of insurance
available to physicians in this state, regardless of practice type
or specialty. Policies issued by a the company to each class of
physicians are to be essentially uniform in terms and conditions of
coverage.
(d) (f) Notwithstanding the provisions of subsections (b), or
(c) or (e) of this section, a the company may:
(1) Establish reasonable classifications of physicians,
insured activities, and exposures based on a good faith
determination of relative exposures and hazards among
classifications;
(2) Vary the limits, coverages, exclusions, conditions, and
loss-sharing provisions among classifications;
(3) Establish, for an individual physician within a
classification, reasonable variations in the terms of coverage,
including rates, deductibles and loss-sharing provisions, based on
the insured's prior loss experience and current professional
training and capability; and
(4) Refuse Except with respect to policies transferred from
the board of risk and insurance management under this section,
refuse to provide insurance coverage for individual physicians
whose prior loss experience or current professional training and
capability are such that the physician represents an unacceptable
risk of loss if coverage is provided.
(e) (g) A The company shall establish reasonable risk
management and continuing education requirements which
policyholders must meet in order to be and remain eligible for
coverage.
§33-20F-10. Controlling law.
To the extent applicable, and when not in conflict with the
provisions of this article, the provisions of chapters thirty-one
and thirty-three of this code apply to any the company created
pursuant to the provisions of this article. If a provision of this
article and another provision of this code are in conflict, the
provision of this article controls.
§33-20F-11. Liberal construction.
This article is enacted to address a situation critical to the
citizens of the state of West Virginia by providing a mechanism for
the speedy and deliberate creation of a company to begin offering
medical liability insurance to physicians in this state at the
earliest possible date, ; and to accomplish this purpose, this
article must shall be liberally construed.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24. Scope of provisions; applicability of other laws.
(a) Except as otherwise provided in this article, provisions
of the insurance laws and provisions of hospital or medical service
corporation laws are not applicable to any health maintenance
organization granted a certificate of authority under this article.
The provisions of this article shall not apply to an insurer or
hospital or medical service corporation licensed and regulated
pursuant to the insurance laws or the hospital or medical service
corporation laws of this state except with respect to its health
maintenance corporation activities authorized and regulated
pursuant to this article. The provisions of this article may not
apply to an entity properly licensed by a reciprocal state to
provide health care services to employer groups, where residents of
West Virginia are members of an employer group, and the employer
group contract is entered into in the reciprocal state. For
purposes of this subsection, a "reciprocal state" means a state
which physically borders West Virginia and which has subscriber or enrollee hold harmless requirements substantially similar to those
set out in section seven-a of this article.
(b) Factually accurate advertising or solicitation regarding
the range of services provided, the premiums and copayments
charged, the sites of services and hours of operation and any other
quantifiable, nonprofessional aspects of its operation by a health
maintenance organization granted a certificate of authority, or its
representative may not be construed to violate any provision of law
relating to solicitation or advertising by health professions:
Provided, That nothing contained in this subsection shall be
construed as authorizing any solicitation or advertising which
identifies or refers to any individual provider or makes any
qualitative judgment concerning any provider.
(c) Any health maintenance organization authorized under this
article may not be considered to be practicing medicine and is
exempt from the provisions of chapter thirty of this code, relating
to the practice of medicine.
(d) The provisions of sections fifteen and twenty, article
four (general provisions); section nine-a, article two (one-time
assessment); section seventeen, article six (noncomplying forms);
section twenty, article five (borrowing by insurers); article six-c
(guaranteed loss ratio); article seven (assets and liabilities);
article eight (investments); article eight-a (use of clearing
corporations and federal reserve book-entry system); article nine (administration of deposits); article twelve (agents, brokers,
solicitors and excess line); 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-b (uniform health care administration act); section three,
article sixteen (required policy provisions); section three-f,
article sixteen (treatment of temporomandibular disorder and
craniomandibular disorder); 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); article sixteen-a (group
health insurance conversion); article sixteen-d (marketing and rate
practices for small employers); article twenty-five-c (health
maintenance organization patient bill of rights); article
twenty-seven (insurance holding company systems); article
thirty-four-a (standards and commissioner's authority for companies
considered to be in hazardous financial condition); article
thirty-five (criminal sanctions for failure to report impairment);
article thirty-seven (managing general agents); article thirty-nine
(disclosure of material transactions); article forty-one
(privileges and immunity); and article forty-two (women's access to
health care) shall be applicable to any health maintenance organization granted a certificate of authority under this article.
In circumstances where the code provisions made applicable to
health maintenance organizations by this section refer to the
"insurer", the "corporation" or words of similar import, the
language shall be construed to include health maintenance
organizations.
(e) Any long-term care insurance policy delivered or issued
for delivery in this state by a health maintenance organization
shall comply with the provisions of article fifteen-a of this
chapter.
ARTICLE 25D. PREPAID LIMITED HEALTH SERVICE ORGANIZATION ACT.
§33-25D-26. Scope of provisions; applicability of other laws.
(a) Except as otherwise provided in this article, provisions
of the insurance laws, provisions of hospital, medical, dental or
health service corporation laws and provisions of health
maintenance organization laws are not applicable to any prepaid
limited health service organization granted a certificate of
authority under this article. The provisions of this article do
not apply to an insurer, hospital, medical, dental or health
service corporation, or health maintenance organization licensed
and regulated pursuant to the insurance laws, hospital, medical,
dental or health service corporation laws or health maintenance
organization laws of this state except with respect to its prepaid
limited health service corporation activities authorized and regulated pursuant to this article. The provisions of this article
do not apply to an entity properly licensed by a reciprocal state
to provide a limited health care service to employer groups, where
residents of West Virginia are members of an employer group, and
the employer group contract is entered into in the reciprocal
state. For purposes of this subsection, a "reciprocal state" means
a state which physically borders West Virginia and which has
subscriber or enrollee hold harmless requirements substantially
similar to those set out in section ten of this article.
(b) Factually accurate advertising or solicitation regarding
the range of services provided, the premiums and copayments
charged, the sites of services and hours of operation and any other
quantifiable, nonprofessional aspects of its operation by a prepaid
limited health service organization granted a certificate of
authority, or its representative do not violate any provision of
law relating to solicitation or advertising by health professions:
Provided, That nothing contained in this subsection authorizes any
solicitation or advertising which identifies or refers to any
individual provider or makes any qualitative judgment concerning
any provider.
(c) Any prepaid limited health service organization authorized
under this article is not considered to be practicing medicine and
is exempt from the provision of chapter thirty of this code
relating to the practice of medicine.
(d) The provisions of section nine, article two, examinations;
section nine-a, article two, one-time assessment; section thirteen,
article two, hearings; sections fifteen and twenty, article four,
general provisions; section twenty, article five, borrowing by
insurers; section seventeen, article six, noncomplying forms;
article six-c, guaranteed loss ratio; article seven, assets and
liabilities; article eight, investments; article eight-a, use of
clearing corporations and federal reserve book-entry system;
article nine, administration of deposits; article ten,
rehabilitation and liquidation; article twelve, agents, brokers,
solicitors and excess line; 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-b,
uniform health care administration act; section three, article
sixteen, required policy provisions; 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; article sixteen-a, group
health insurance conversion; article sixteen-d, marketing and rate
practices for small employers; article twenty-seven, insurance
holding company systems; article thirty-three, annual audited
financial report; article thirty-four, administrative supervision; article thirty-four-a, standards and commissioner's authority for
companies considered to be in hazardous financial condition;
article thirty-five, criminal sanctions for failure to report
impairment; article thirty-seven, managing general agents; article
thirty-nine, disclosure of material transactions; and article
forty-one, privileges and immunity, all of this chapter are
applicable to any prepaid limited health service organization
granted a certificate of authority under this article. In
circumstances where the code provisions made applicable to prepaid
limited health service organizations by this section refer to the
"insurer", the "corporation" or words of similar import, the
language includes prepaid limited health service organizations.
(e) Any long-term care insurance policy delivered or issued
for delivery in this state by a prepaid limited health service
organization shall comply with the provisions of article fifteen-a
of this chapter.
(f) A prepaid limited health service organization granted a
certificate of authority under this article is exempt from paying
municipal business and occupation taxes on gross income it receives
from its enrollees, or from their employers or others on their
behalf, for health care items or services provided directly or
indirectly by the prepaid limited health service organization.
CHAPTER 38. LIENS.
ARTICLE 10. FEDERAL TAX LIENS; ORDERS AND DECREES IN BANKRUPTCY.
§38-10-4. Exemptions of property in bankruptcy proceedings.
Pursuant to the provisions of 11 U. S. C. §522(b)(1), this
state specifically does not authorize debtors who are domiciled in
this state to exempt the property specified under the provisions of
11 U. S. C. §522(d).
Any person who files a petition under the federal bankruptcy
law may exempt from property of the estate in a bankruptcy
proceeding the following property:
(a) The debtor's interest, not to exceed twenty-five thousand
dollars in value, in real property or personal property that the
debtor or a dependent of the debtor uses as a residence, in a
cooperative that owns property that the debtor or a dependent of
the debtor uses as a residence or in a burial plot for the debtor
or a dependent of the debtor.: Provided, That when the debtor is
a physician licensed to practice medicine in this state under
article three or article fourteen, chapter thirty of this code, and
has commenced a bankruptcy proceeding in part due to a verdict or
judgment entered in a medical professional liability action, if the
physician has current medical malpractice insurance in the amount
of at least one million dollars for each occurrence, the debtor
physician's interest that is exempt under this subsection may
exceed twenty-five thousand dollars in value but may not exceed two
hundred fifty thousand dollars per household.
(b) The debtor's interest, not to exceed two thousand four
hundred dollars in value, in one motor vehicle.
(c) The debtor's interest, not to exceed four hundred dollars
in value in any particular item, in household furnishings,
household goods, wearing apparel, appliances, books, animals, crops
or musical instruments that are held primarily for the personal,
family or household use of the debtor or a dependent of the debtor:
Provided, That the total amount of personal property exempted under
this subsection may not exceed eight thousand dollars.
(d) The debtor's interest, not to exceed one thousand dollars
in value, in jewelry held primarily for the personal, family or
household use of the debtor or a dependent of the debtor.
(e) The debtor's interest, not to exceed in value eight
hundred dollars plus any unused amount of the exemption provided
under subsection (a) of this section in any property.
(f) The debtor's interest, not to exceed one thousand five
hundred dollars in value, in any implements, professional books or
tools of the trade of the debtor or the trade of a dependent of the
debtor.
(g) Any unmeasured life insurance contract owned by the
debtor, other than a credit life insurance contract.
(h) The debtor's interest, not to exceed in value eight
thousand dollars less any amount of property of the estate
transferred in the manner specified in 11 U. S. C. §542(d), in any accrued dividend or interest under, or loan value of, any
unmeasured life insurance contract owned by the debtor under which
the insured is the debtor or an individual of whom the debtor is a
dependent.
(i) Professionally prescribed health aids for the debtor or a
dependent of the debtor.
(j) The debtor's right to receive:
(1) A social security benefit, unemployment compensation or a
local public assistance benefit;
(2) A veterans' benefit;
(3) A disability, illness or unemployment benefit;
(4) Alimony, support or separate maintenance, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(5) A payment under a stock bonus, pension, profit sharing,
annuity or similar plan or contract on account of illness,
disability, death, age or length of service, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor, and funds on deposit in an individual
retirement account (IRA), including a simplified employee pension
(SEP) regardless of the amount of funds, unless:
(A) The plan or contract was established by or under the
auspices of an insider that employed the debtor at the time the
debtor's rights under the plan or contract arose;
(B) The payment is on account of age or length of service;
(C) The plan or contract does not qualify under Section
401(a), 403(a), 403(b), 408 or 409 of the Internal Revenue Code of
1986; and
(D) With respect to an individual retirement account,
including a simplified employee pension, the amount is subject to
the excise tax on excess contributions under Section 4973 and/or
Section 4979 of the Internal Revenue Code of 1986, or any successor
provisions, regardless of whether the tax is paid.
(k) The debtor's right to receive or property that is
traceable to:
(1) An award under a crime victim's reparation law;
(2) A payment on account of the wrongful death of an
individual of whom the debtor was a dependent, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(3) A payment under a life insurance contract that insured the
life of an individual of whom the debtor was a dependent on the
date of the individual's death, to the extent reasonably necessary
for the support of the debtor and any dependent of the debtor;
(4) A payment, not to exceed fifteen thousand dollars on
account of personal bodily injury, not including pain and suffering
or compensation for actual pecuniary loss, of the debtor or an
individual of whom the debtor is a dependent;
(5) A payment in compensation of loss of future earnings of
the debtor or an individual of whom the debtor is or was a
dependent, to the extent reasonably necessary for the support of
the debtor and any dependent of the debtor;
(6) Payments made to the prepaid tuition trust fund or to the
savings plan trust fund, including earnings, in accordance with
article thirty, chapter eighteen of this code on behalf of any
beneficiary.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-1. Legislative findings and declaration of purpose.
The Legislature hereby finds and declares that the citizens of
this state are entitled to the best medical care and facilities
available and that health care providers offer an essential and
basic service which requires that the public policy of this state
encourage and facilitate the provision of such service to our
citizens;
That as in every human endeavor the possibility of injury or
death from negligent conduct commands that protection of the public
served by health care providers be recognized as an important state
interest;
That our system of litigation is an essential component of
this state's interest in providing adequate and reasonable
compensation to those persons who suffer from injury or death as a result of professional negligence, and any limitation placed on
this system must be balanced with and considerate of the need to
fairly compensate patients who have been injured as a result of
negligent and incompetent acts by health care providers;
That liability insurance is a key part of our system of
litigation, affording compensation to the injured while fulfilling
the need and fairness of spreading the cost of the risks of injury;
That a further important component of these protections is the
capacity and willingness of health care providers to monitor and
effectively control their professional competency, so as to protect
the public and insure to the extent possible the highest quality of
care;
That it is the duty and responsibility of the Legislature to
balance the rights of our individual citizens to adequate and
reasonable compensation with the broad public interest in the
provision of services by qualified health care providers and health
care facilities who can themselves obtain the protection of
reasonably priced and extensive liability coverage;
That in recent years, the cost of insurance coverage has risen
dramatically while the nature and extent of coverage has
diminished, leaving the health care providers, the health care
facilities, and the injured without the full benefit of
professional liability insurance coverage;
That many of the factors and reasons contributing to the
increased cost and diminished availability of professional
liability insurance arise from the historic inability of this state
to effectively and fairly regulate the insurance industry so as to
guarantee our citizens that rates are appropriate, that purchasers
of insurance coverage are not treated arbitrarily, and that rates
reflect the competency and experience of the insured health care
providers and health care facilities;
That the unpredictable nature of traumatic injury health care
services often result in a greater likelihood of unsatisfactory
patient outcomes, a higher degree of patient and patient family
dissatisfaction and frequent malpractice claims, creating a
financial strain on the trauma care system of our state, increasing
costs for all users of the trauma care system and impacting the
availability of these services, requires appropriate and balanced
limitations on the rights of persons asserting claims against
trauma care health care providers, this balance must guarantee
availability of trauma care services while mandating that these
services meet all national standards of care, to assure that our
health care resources are being directed towards providing the best
trauma care available; and
__That the cost of liability insurance coverage has continued to
rise dramatically, resulting in the state's loss and threatened
loss of physicians, which, together with other costs and taxation incurred by health care providers in this state, have created a
competitive disadvantage in attracting and retaining qualified
physicians and other health care providers.
__The Legislature further finds that medical liability issues
have reached critical proportions for the state's long-term health
care facilities, as: (1) Medical liability insurance premiums for
nursing homes in West Virginia continue to increase and the number
of claims per bed has increased significantly; (2) the cost to the
state medicaid program as a result of such higher premiums has
grown considerably in this period; (3) current medical liability
premium costs for some nursing homes constitute a significant
percentage of the amount of coverage; (4) these high costs are
leading some facilities to consider dropping medical liability
insurance coverage altogether; and (5) the medical liability
insurance crisis for nursing homes may soon result in a reduction
of the number of beds available to citizens in need of long-term
care.
Therefore, the purpose of this enactment article is to provide
for a comprehensive resolution of the matters and factors which the
Legislature finds must be addressed to accomplish the goals set
forth above in this section. In so doing, the Legislature has
determined that reforms in the common law and statutory rights of
our citizens must be enacted together as necessary and mutual
ingredients of the appropriate legislative response relating to:
__(1) Compensation for injury and death, in;
__(2) The regulation of rate making and other practices by the
liability insurance industry, including the formation of a
physicians' mutual insurance company and establishment of a fund to
assure adequate compensation to victims of malpractice; and in
(3) The authority of medical licensing boards to effectively
regulate and discipline the health care providers under such board
must be enacted together as necessary and mutual ingredients of the
appropriate legislative response.
§55-7B-2. Definitions.
(a) "Board" means the state board of risk and insurance
management;
(b) "Collateral source" means a source of benefits or
advantages for economic loss that the claimant has received from:
__(1) Any federal or state act, public program or insurance
which provides payments for medical expenses, disability benefits,
including workers' compensation benefits, or other similar
benefits. Benefits payable under the Social Security Act are not
considered payments from collateral sources except for Social
Security disability benefits directly attributable to the medical
injury in question;
__(2) Any contract or agreement of any group, organization,
partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental, nursing, rehabilitation, therapy
or other health care services or provide similar benefits;
__(3) Any group accident, sickness or income disability
insurance, any casualty or property insurance (including automobile
and homeowners' insurance) which provides medical benefits, income
replacement or disability coverage, or any other similar insurance
benefits, except life insurance, to the extent that someone other
than the insured, including the insured's employer, has paid all or
part of the premium or made an economic contribution on behalf of
the plaintiff; or
__(4) Any contractual or voluntary wage continuation plan
provided by an employer or otherwise, or any other system intended
to provide wages during a period of disability.
__(c) "Consumer price index" means the most recent consumer
price index for all consumers published by the United States
department of labor.
__(d) "Emergency condition" means any acute traumatic injury or
acute medical condition which, according to standardized criteria
for triage, involves a significant risk of death or the
precipitation of significant complications or disabilities,
impairment of bodily functions, or, with respect to a pregnant
woman, a significant risk to the health of the unborn child.
(a) (e)"Health care" means any act or treatment performed or
furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the
patient's medical care, treatment or confinement.
(b) (f) "Health care facility" means any clinic, hospital,
nursing home, or extending care facility assisted living facility,
including personal care home, residential care community and
residential board and care home, or behavioral health care facility
or comprehensive community mental health/mental retardation center,
in and licensed by the state of West Virginia and any state
operated institution or clinic providing health care.
(c) (g) "Health care provider" means a person, partnership,
corporation, professional limited liability company, health care
facility or institution licensed by, or certified in, this state or
another state, to provide health care or professional health care
services, including, but not limited to, a physician, osteopathic
physician, hospital, dentist, registered or licensed practical
nurse, optometrist, podiatrist, chiropractor, physical therapist
or, psychologist, emergency medical services authority or agency,
or an officer, employee or agent thereof acting in the course and
scope of such officer's, employee's or agent's employment.
(h) "Medical injury" means injury or death to a patient
arising or resulting from the rendering of or failure to render
health care.
__(d) (i) "Medical professional liability" means any liability
for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered,
or which should have been rendered, by a health care provider or
health care facility to a patient.
(j) "Medical professional liability insurance" means a
contract of insurance or any actuarially sound self-funding program
that pays for the legal liability of a health care facility or
health care provider arising from a claim of medical professional
liability.
__(k) "Noneconomic loss" means losses, including, but not
limited to, pain, suffering, mental anguish and grief.
__(e)(l) "Patient" means a natural person who receives or should
have received health care from a licensed health care provider
under a contract, expressed or implied.
(m) "Plaintiff" means a patient or representative of a patient
who brings an action for medical professional liability under this
article.
__(f) (n) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
(g) "Noneconomic loss" means losses, including, but not
limited to, pain, suffering, mental anguish and grief.
§55-7B-3. Elements of proof.
(a) The following are necessary elements of proof that an
injury or death resulted from the failure of a health care provider
to follow the accepted standard of care:
(a) (1) The health care provider failed to exercise that
degree of care, skill and learning required or expected of a
reasonable, prudent health care provider in the profession or class
to which the health care provider belongs acting in the same or
similar circumstances; and
(b) (2) Such failure was a proximate cause of the injury or
death.
(b) If the plaintiff proceeds on the "loss of chance" theory,
i.e., that the health care provider's failure to follow the
accepted standard of care deprived the patient of a chance of
recovery or increased the risk of harm to the patient which was a
substantial factor in bringing about the ultimate injury to the
patient, the plaintiff must also prove, to a reasonable degree of
medical probability, that following the accepted standard of care
would have resulted in a greater than twenty-five percent chance
that the patient would have had an improved recovery or would have
survived.
§55-7B-6. Prerequisites for filing an action against a health care
provider; procedures; sanctions
.
(a) Notwithstanding any other provision of this code, no
person may file a medical professional liability action against any
health care provider without complying with the provisions of this
section.
(b) At least thirty days prior to the filing of a medical
professional liability action against a health care provider, the
claimant shall serve by certified mail, return receipt requested,
a notice of claim on each health care provider the claimant will
join in litigation. The notice of claim shall include a statement
of the theory or theories of liability upon which a cause of action
may be based, and a list of all health care providers and health
care facilities to whom notices of claim are being sent, together
with a screening certificate of merit. The screening certificate
of merit shall be executed under oath by a health care provider
qualified as an expert under the West Virginia rules of evidence
and shall state with particularity: (1) The expert's familiarity
with the applicable standard of care in issue; (2) the expert's
qualifications; (3) the expert's opinion as to how the applicable
standard of care was breached; and (4) the expert's opinion as to
how the breach of the applicable standard of care resulted in
injury or death. A separate screening certificate of merit must be
provided for each health care provider against whom a claim is
asserted. The person signing the screening certificate of merit
shall have no financial interest in the underlying claim, but may
participate as an expert witness in any judicial proceeding.
Nothing in this subsection may be construed to limit the
application of rule fifteen 15 of the rules of civil procedure.
(c) Notwithstanding any provision of this code, if a claimant
or if represented by counsel, the claimant's his or her counsel,
believes that no screening certificate of merit is necessary
because the cause of action is based upon a well-established legal
theory of liability which does not require expert testimony
supporting a breach of the applicable standard of care, the
claimant or if represented by counsel, the claimant's his or her
counsel, shall file a statement specifically setting forth the
basis of the alleged liability of the health care provider in lieu
of a screening certificate of merit.
(d) If a claimant or his or her counsel has insufficient time
to obtain a screening certificate of merit prior to the expiration
of the applicable statute of limitations, the claimant shall comply
with the provisions of subsection (b) of this section except that
the claimant or his or her counsel shall furnish the health care
provider with a statement of intent to provide a screening
certificate of merit within sixty days of the date the health care
provider receives the notice of claim.
(e) Any health care provider who receives a notice of claim
pursuant to the provisions of this section must may respond, in
writing, to the claimant or his or her counsel within thirty days
of receipt of the claim or within thirty days of receipt of the
screening certificate of merit if the claimant is proceeding
pursuant to the provisions of subsection (d) of this section. The response may state that the health care provider has a bona fide
defense and the name of the health care provider's counsel, if any.
(f) Upon receipt of the notice of claim or of the screening
certificate of merit, if the claimant is proceeding pursuant to the
provisions of subsection (d) of this section, the health care
provider is entitled to pre-litigation mediation before a qualified
mediator upon written demand to the claimant.
(g) If the health care provider demands mediation pursuant to
the provisions of subsection (f) of this section, the mediation
shall be concluded within forty-five days of the date of the
written demand. The mediation shall otherwise be conducted
pursuant to rule 25 of the trial court rules, unless portions of
the rule are clearly not applicable to a mediation conducted prior
to the filing of a complaint or unless the supreme court of appeals
promulgates rules governing mediation prior to the filing of a
complaint. If mediation is conducted, the claimant may depose the
health care provider before mediation or take the testimony of the
health care provider during the mediation.
(h) The failure of a health care provider to timely respond to
a notice of claim, in the absence of good cause shown, constitutes
a waiver of the right to request pre-litigation mediation. Except
as otherwise provided in this subsection, any statute of
limitations applicable to a cause of action against a health care
provider upon whom notice was served for alleged medical professional liability shall be tolled from the date of the mailing
service of a notice of claim to thirty days following receipt of a
response to the notice of claim, thirty days from the date a
response to the notice of claim would be due, or thirty days from
the receipt by the claimant of written notice from the mediator
that the mediation has not resulted in a settlement of the alleged
claim and that mediation is concluded, whichever last occurs. If
a claimant has sent a notice of claim relating to any injury or
death to more than one health care provider, any one of whom has
demanded mediation, then the statute of limitations shall be tolled
with respect to, and only with respect to, those health care
providers to whom the claimant sent a notice of claim to thirty
days from the receipt of the claimant of written notice from the
mediator that the mediation has not resulted in a settlement of the
alleged claim and that mediation is concluded.
(i) Notwithstanding any other provision of this code, a notice
of claim, a health care provider's response to any notice claim, a
screening certificate of merit and the results of any mediation
conducted pursuant to the provisions of this section are
confidential and are not admissible as evidence in any court
proceeding unless the court, upon hearing, determines that failure
to disclose the contents would cause a miscarriage of justice.
§55-7B-7. Testimony of expert witness on standard of care.
(a) The applicable standard of care and a defendant's failure
to meet said the standard of care, if at issue, shall be
established in medical professional liability cases by the
plaintiff by testimony of one or more knowledgeable, competent
expert witnesses if required by the court. Such expert Expert
testimony may only be admitted in evidence if the foundation,
therefor, is first laid establishing that: (a) (1) The opinion is
actually held by the expert witness; (b) (2) the opinion can be
testified to with reasonable medical probability; (c) (3) such the
expert witness possesses professional knowledge and expertise
coupled with knowledge of the applicable standard of care to which
his or her expert opinion testimony is addressed; (d) (4) such the
expert witness maintains a current license to practice medicine in
one of the states with the appropriate licensing authority of any
state of the United States: Provided, That the expert witness'
license has not been revoked or suspended in the past year in any
state; and (e) (5) such the expert witness is engaged or qualified
in the same or substantially similar a medical field as the
defendant health care provider in which the practitioner has
experience and/or training in diagnosing or treating injuries or
conditions similar to those of the patient. If the witness meets
all of these qualifications and devoted, at the time of the medical
injury, sixty percent of his or her professional time annually to
the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or speciality
in an accredited university, there shall be a rebuttable
presumption that the witness is qualified as an expert. The parties
shall have the opportunity to impeach any witness' qualifications
as an expert. Financial records of an expert witness are not
discoverable or relevant to prove the amount of time the expert
witness spends in active practice or teaching in his or her medical
field unless good cause can be shown to the court.
(b) Nothing contained in this section may be construed to
limit a trial court's discretion to determine the competency or
lack of competency of a witness on a ground not specifically
enumerated in this section.
§55-7B-8. Limit on liability for noneconomic loss.
(a) In any medical professional liability action brought
against a health care provider pursuant to this article, the
maximum amount recoverable as compensatory damages for noneconomic
loss shall not exceed one million two hundred fifty thousand
dollars and the jury may be so instructed per occurrence,
regardless of the number of plaintiffs or the number of defendants
or, in the case of wrongful death, regardless of the number of
distributees, except as provided in subsection (b) of this article.
(b) The plaintiff may recover compensatory damages for
noneconomic loss in excess of the limitation described in
subsection (a) of this section, but not in excess of five hundred thousand dollars for each occurrence, regardless of the number of
plaintiffs or the number of defendants or, in the case of wrongful
death, regardless of the number of distributees, where the damages
for noneconomic losses suffered by the plaintiff were for: (1)
Wrongful death; (2) permanent and substantial physical deformity,
loss of use of a limb or loss of a bodily organ system; or (3)
permanent physical or mental functional injury that permanently
prevents the injured person from being able to independently care
for himself or herself and perform life sustaining activities.
__(c) On the first of January, two thousand four, and in each
year thereafter, the limitation for compensatory damages contained
in subsections (a) and (b) of this section shall increase to
account for inflation by an amount equal to the consumer price
index published by the United States department of labor, up to
fifty percent of the amounts specified in subsections (b) and (c)
as a limitation of compensatory noneconomic damages.
__(d) The limitations on noneconomic damages contained in
subsections (a), (b), (c) and (e) of this section are not available
to any defendant in an action pursuant to this article which does
not have medical professional liability insurance in the amount of
at least one million dollars per occurrence covering the medical
injury which is the subject of the action.
__(e) If subsection (a) or (b) of this section, as enacted
during the regular session of the Legislature, two thousand three, or the application thereof to any person or circumstance, is found
by a court of law to be unconstitutional or otherwise invalid, the
maximum amount recoverable as damages for noneconomic loss in a
professional liability action brought against a health care
provider under this article shall thereafter not exceed one million
dollars.
§55-7B-9. Several liability.
(a) In the trial of a medical professional liability action
against a health care provider under this article involving
multiple defendants, the jury trier of fact shall be required to
report its findings to the court on a form provided by the court
which contains each of the possible verdicts as determined by the
court. Unless otherwise agreed by all the parties to the action,
the jury shall be instructed to answer special interrogatories, or
the court, acting without a jury, shall make findings as to:
__(1) The total amount of compensatory damages recoverable by
the plaintiff;
__(2) The portion of the damages that represents damages for
noneconomic loss;
__(3) The portion of the damages that represents damages for
each category of economic loss;
__(4) The percentage of fault, if any, attributable to each
plaintiff; and
__(5) The percentage of fault, if any, attributable to each of
the defendants.
(b) In every medical professional liability action In
assessing percentages of fault, the trier of fact shall consider
only the fault of the parties in the litigation at the time the
verdict is rendered and shall not consider the fault of any other
person who has settled a claim with the plaintiff arising out of
the same medical injury. Provided, That, upon the creation of the
patient injury compensation fund provided for in article twelve-c,
chapter twenty-nine of this code, or of some other mechanism for
compensating a plaintiff for any amount of economic damages awarded
by the trier of fact which the plaintiff has been unable to
collect, the trier of fact shall, in assessing percentages of
fault, consider the fault of all alleged parties, including the
fault of any person who has settled a claim with the plaintiff
arising out of the same medical injury.
__(c) If the trier of fact renders a verdict for the plaintiff,
the court shall make findings as to the total dollar amount awarded
as damages to each plaintiff. The court shall enter judgment of
joint and several liability against every defendant which bears
twenty-five percent or more of the negligence attributable to all
defendants. The court shall enter judgment of several, but not
joint, liability against and among all defendants which bear less
than twenty-five percent of the negligence attributable to all defendants each defendant in accordance with the percentage of
fault attributed to the defendant by the trier of fact.
__(c) Each defendant against whom a judgment of joint and
several liability is entered in a medical professional liability
action pursuant to subsection (b) of this section is liable to each
plaintiff for all or any part of the total dollar amount awarded
regardless of the percentage of negligence attributable to him. A
right of contribution exists in favor of each defendant who has
paid to a plaintiff more than the percentage of the total dollar
amount awarded attributable to him relative to the percentage of
negligence attributable to him. The total amount of recovery for
contribution is limited to the amount paid by the defendant to a
plaintiff in excess of the percentage of the total dollar amount
awarded attributable to him relative to the percentage of
negligence attributable to him. No right of contribution exists
against any defendant who entered into a good faith settlement with
the plaintiff prior to the jury's report of its findings to the
court or the court's findings as to the total dollar amount awarded
as damages.
(d) Where a right of contribution exists in a medical
professional liability action pursuant to subsection (c) of this
section, the findings of the court or jury as to the percentage of
negligence and liability of the several defendants to the plaintiff shall be binding among such defendants as determining their rights
of contribution.
(d) To determine the amount of judgment to be entered against
each defendant, the court shall first, after adjusting the verdict
as provided in section nine-a of this article, reduce the adjusted
verdict by the amount of any pre-verdict settlement arising out of
the same medical injury. The court shall then, with regard to each
defendant, multiply the total amount of damages remaining, with
interest, by the percentage of fault attributed to each defendant
by the trier of fact. The resulting amount of damages, together
with any post-judgment interest accrued, shall be the maximum
recoverable against the defendant.
__(e) Upon the creation of the patient injury compensation fund
provided for in article twelve-c, chapter twenty-nine of this code,
or of some other mechanism for compensating a plaintiff for any
amount of economic damages awarded by the trier of fact which the
plaintiff has been unable to collect, the court shall, in
determining the amount of judgment to be entered against each
defendant, first multiply the total amount of damages, with
interest, recoverable by the plaintiff by the percentage of each
defendant's fault and that amount, together with any post-judgment
interest accrued, is the maximum recoverable against said
defendant. Prior to the court's entry of the final judgment order
as to each defendant against whom a verdict was rendered, the court shall reduce the total jury verdict by any amounts received by a
plaintiff in settlement of the action. When any defendant's
percentage of the verdict exceeds the remaining amounts due
plaintiff after the mandatory reductions, each defendant shall be
liable only for the defendant's pro rata share of the remainder of
the verdict as calculated by the court from the remaining
defendants to the action. The plaintiff's total award may never
exceed the jury's verdict less any statutory or court-ordered
reductions.
__(f) Nothing in this section is meant to eliminate or diminish
any defenses or immunities which exist as of the effective date of
this section, except as expressly noted in this section.
__(g) Nothing in this article is meant to preclude a health care
provider from being held responsible for the portion of fault
attributed by the trier of fact to any person acting as the health
care provider's agent or servant or to preclude imposition of fault
otherwise imputable or attributable to the health care provider
under claims of vicarious liability. A health care provider may
not be held vicariously liable for the acts of a nonemployee
pursuant to a theory of ostensible agency unless the alleged agent
does not maintain professional liability insurance covering the
medical injury which is the subject of the action in the aggregate
amount of at least one million dollars.
§55-7B-9a. Reduction in compensatory damages for economic losses
for payments from collateral sources the same injury.
(a) In any action arising after the effective date of this
section, a defendant who has been found liable to the plaintiff for
damages for medical care, rehabilitation services, lost earnings or
other economic losses may present to the court, after the trier of
fact has rendered a verdict, but before entry of judgment, evidence
of payments the plaintiff has received for the same injury from
collateral sources.
(b) In any hearing pursuant to subsection (a) of this section,
the defendant may present evidence of future payments from
collateral sources if the court determines that: (1) There is a
preexisting contractual or statutory obligation on the collateral
source to pay the benefits; (2) the benefits, to a reasonable
degree of certainty, will be paid to the plaintiff for expenses the
trier of fact has determined the plaintiff will incur in the
future; and (3) the amount of the future expenses is readily
reducible to a sum certain.
(c) In the hearing pursuant to subsection (a) of this section,
the plaintiff may present evidence of the value of payments or
contributions he or she has made to secure the right to the
benefits paid by the collateral source.
(d) After hearing the evidence presented by the parties, the
court shall make the following findings of fact:
(1) The total amount of damages for economic loss found by the
trier of fact;
(2) The total amount of damages for each category of economic
loss found by the trier of fact;
(3) The total amount of allowable collateral source payments
received or to be received by the plaintiff for the medical injury
which was the subject of the verdict in each category of economic
loss; and
(4) The total amount of any premiums or contributions paid by
the plaintiff in exchange for the collateral source payments in
each category of economic loss found by the trier of fact.
(e) The court shall subtract the total premiums the plaintiff
was found to have paid in each category of economic loss from the
total collateral source benefits the plaintiff received with regard
to that category of economic loss to arrive at the net amount of
collateral source payments.
(f) The court shall then subtract the net amount of collateral
source payments received or to be received by the plaintiff in each
category of economic loss from the total amount of damages awarded
the plaintiff by the trier of fact for that category of economic
loss to arrive at the adjusted verdict.
(g) The court shall not reduce the verdict rendered by the
trier of fact in any category of economic loss to reflect:
(1) Amounts paid to or on behalf of the plaintiff which the
collateral source has a right to recover from the plaintiff through
subrogation, lien or reimbursement;
(2) Amounts in excess of benefits actually paid or to be paid
on behalf of the plaintiff by a collateral source in a category of
economic loss;
(3) The proceeds of any individual disability or income
replacement insurance paid for entirely by the plaintiff;
(4) The assets of the plaintiff or the members of the
plaintiff's immediate family; or
(5) A settlement between the plaintiff and another tortfeasor.
(h) After determining the amount of the adjusted verdict, the
court shall enter judgment in accordance with the provisions of
section nine.
§55-7B-9b. Limitations on third-party claims.
An action may not be maintained against a health care provider
pursuant to this article by or on behalf of a third-party
nonpatient for rendering or failing to render health care services
to a patient whose subsequent act is a proximate cause of injury or
death to the third party unless the health care provider rendered
or failed to render health care services in willful and wanton or
reckless disregard of a foreseeable risk of harm to third persons.
Nothing in this section shall be construed to prevent the personal
representative of a deceased patient from maintaining a wrongful death action on behalf of such patient pursuant to article seven of
this chapter or to prevent a derivative claim for loss of
consortium arising from injury or death to the patient arising from
the negligence of a health care provider within the meaning of this
article.
55-7B-9c. Limit on liability for treatment of emergency conditions
for which patient is admitted to a designated trauma center
;
exceptions; emergency rules.
(a) In any action brought under this article for injury to or
death of a patient as a result of health care services or
assistance rendered in good faith and necessitated by an emergency
condition for which the patient enters a health care facility
designated by the office of emergency medical services as a trauma
center, including health care services or assistance rendered in
good faith by a licensed EMS agency or an employee of an licensed
EMS agency, the total amount of civil damages recoverable shall not
exceed five hundred thousand dollars, exclusive of interest
computed from the date of judgment.
(b) The limitation of liability in subsection (a) of this
section also applies to any act or omission of a health care
provider in rendering continued care or assistance in the event
that surgery is required as a result of the emergency condition
within a reasonable time after the patient's condition is
stabilized.
(c) The limitation on liability provided under subsection (a)
of this section does not apply to any act or omission in rendering
care or assistance which: (1) Occurs after the patient's condition
is stabilized and the patient is capable of receiving medical
treatment as a nonemergency patient; or (2) is unrelated to the
original emergency condition.
(d) In the event that: (1) A physician provides follow-up
care to a patient to whom the physician rendered care or assistance
pursuant to subsection (a) of this section; and (2) a medical
condition arises during the course of the follow-up care that is
directly related to the original emergency condition for which care
or assistance was rendered pursuant to said subsection, there is
rebuttable presumption that the medical condition was the result of
the original emergency condition and that the limitation on
liability provided by said subsection applies with respect to that
medical condition.
(e) There is a rebuttable presumption that a medical condition
which arises in the course of follow-up care provided by the
designated trauma center health care provider who rendered good
faith care or assistance for the original emergency condition is
directly related to the original emergency condition where the
follow-up care is provided within a reasonable time after the
patient's admission to the designated trauma center.
(f) The limitation on liability provided under subsection (a)
of this section does not apply where health care or assistance for
the emergency condition is rendered:
(1) In willful and wanton or reckless disregard of a risk of
harm to the patient; or
(2) In clear violation of established written protocols for
triage and emergency health care procedures developed by the office
of emergency medical services in accordance with subsection (e) of
this section. In the event that the office of emergency medical
services has not developed a written triage or emergency medical
protocol by the effective date of this section, the limitation on
liability provided under subsection (a) of this section does not
apply where health care or assistance is rendered under this
section in violation of nationally recognized standards national
standards for triage and emergency health care procedures.
(g) The office of emergency medical services shall, prior to
the effective date of this section, develop a written protocol
specifying recognized and accepted standards for triage and
emergency health care procedures for treatment of emergency
conditions necessitating admission of the patient to a designated
trauma center.
(h) In its discretion, the office of emergency medical
services may grant provisional trauma center status for a period of
up to one year to a health care facility applying for designated trauma center status. A facility given provisional trauma center
status is eligible for the limitation on liability provided in
subsection (a) of this section. If, at the end of the provisional
period, the facility has not been approved by the office of
emergency medical services as a designated trauma center, the
facility will no longer be eligible for the limitation on liability
provided in subsection (a) of this section.
(i) The commissioner of the bureau for public health may grant
an applicant for designated trauma center status a one-time only
extension of provisional trauma center status, upon submission by
the facility of a written request for extension, accompanied by a
detailed explanation and plan of action to fulfill the requirements
for a designated trauma center. If, at the end of the six-month
period, the facility has not been approved by the office of
emergency medical services as a designated trauma center, the
facility will no longer have the protection of the limitation on
liability provided in subsection (a) of this section.
(j) If the office of emergency medical services determines
that a health care facility no longer meets the requirements for a
designated trauma center, it shall revoke the designation, at which
time the limitation on liability established by subsection (a) of
this section shall cease to apply to that health care facility for
services or treatment rendered thereafter.
(k) The Legislature hereby finds that an emergency exists
compelling promulgation of an emergency rule, consistent with the
provisions of this section, governing the criteria for designation
of a facility as a trauma center or provisional trauma center and
implementation of a statewide trauma/emergency care system. The
Legislature therefore directs the secretary of the department of
health and human resources to file, on or before the first day of
July, two thousand three, emergency rules specifying the criteria
for designation of a facility as a trauma center or provisional
trauma center in accordance with nationally accepted and recognized
standards and governing the implementation of a statewide
trauma/emergency care system. The rules governing the statewide
trauma/emergency care system shall include, but not be limited to:
(1) System design, organizational structure and operation,
including integration with the existing emergency medical services
system;
(2) Regulation of facility designation, categorization and
credentialing, including the establishment and collection of
reasonable fees for designation; and
(3) System accountability, including medical review and audit
to assure system quality. Any medical review committees
established to assure system quality shall include all levels of
care, including emergency medical service providers, and both the
review committees and the providers shall qualify for all the rights and protections established in article three-c, chapter
thirty of this code.
§55-7B-10. Effective date; applicability of provisions.
(a) The provisions of House Bill 149, enacted during the first
extraordinary session of the Legislature, 1986, shall be effective
at the same time that the provisions of Enrolled Senate Bill 714,
enacted during the Regular session, 1986, become effective, and the
provisions of said House Bill 149 shall be deemed to amend the
provisions of Enrolled Senate Bill 714. The provisions of this
article shall not apply to injuries which occur before the
effective date of this said Enrolled Senate Bill 714.
(b) The amendments to this article as provided in House Bill
601, enacted during the sixth extraordinary session of the
Legislature, two thousand one, apply to all causes of action
alleging medical professional liability which are filed on or after
the first day of March, two thousand two.
(b) The amendments to this article provided in Enrolled
Committee Substitute for House Bill No. 2122 during the regular
session of the Legislature, two thousand three, apply to all causes
of action alleging medical professional liability which are filed
on or after the first day of July, two thousand three. ;
And,
That both house recede from their respective positions as to
the title of the bill and agree to the same as follows:
Eng. Com. Sub. for House Bill No. 2122--A Bill 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, fourteen-a, fourteen-d and thirty-three,
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 article twenty-f of said
chapter by adding thereto a new section, designated section one-a;
to amend and reenact sections two through eleven, inclusive, of
said article; 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 personal income 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 nontransferred 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
and surgeons 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 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;
establishing conditional limitations on settlement amounts
conditional on creation of patient compensation fund; 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.
Respectfully submitted,
Jon Amores, Chair, Kevin J. Craig, Virginia Mahan, K. Steven
Kominar, Tim Armstead, Conferees on the part of the House of
Delegates.
Jeffrey V. Kessler, Chair, Walt Helmick, Joseph M. Minard,
Robert H. Plymale, Sarah M. Minear, Conferees on the part of the
Senate.
Senator Kessler, Senate cochair of the committee of
conference, was recognized to explain the report.
Thereafter, on motion of Senator Kessler, the report was taken
up for immediate consideration and adopted.
Engrossed Committee Substitute for House Bill No. 2122, as
amended by the conference report, was then put upon its passage.
On the passage of the bill, as amended, the yeas were:
Bailey, Boley, Bowman, Caldwell, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--33.
The nays were: Chafin--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2122) passed with its conference amended
title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: Chafin--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2122) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
The Senate proceeded to the ninth order of business.
Senate Bill No. 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 engrossment and third reading.
Eng. Com. Sub. for House Bill No. 2001, Restricting public
access to military discharge forms recorded in the county clerks
office.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3ll
. Clerk of the county commission duties relating to
recordkeeping of military discharge forms.
(a) The county commission shall order that the clerk of the
county commission wherein a person discharged from the armed forces
of the United States resides record, upon presentation, free of
charge, the original or a properly authenticated copy of either the
discharge certificate or the report of separation from active duty
(Department of Defense Document DD-214), or both, and maintain the
discharge certificate or report, or both, in the clerk's office in
a secure manner, rendering the records unavailable to the public.
(b) Notwithstanding the provisions of article one, chapter
twenty-nine-b of this code, discharge certificates and reports of
separation from active duty recorded pursuant to this section may
be copied or inspected only by the following:
(1) The person of the record;
(2) The duly qualified conservator or guardian of the person
of the record;
(3) The duly qualified executor or administrator of the estate
of the person of the record, if deceased, or, in the event no
executor or administrator has qualified, the next of kin of the
deceased person;
(4) An attorney, attorney-in-fact or other agent or
representative of any of the persons described in subdivision (1),
(2) or (3) of this subsection acting pursuant to a written power of
attorney or other written authorization; or
(5) A duly authorized representative of an agency or
instrumentality of federal, state or local government seeking the
record in the ordinary course of performing its official duties.
(c) Under the circumstances where time is of the essence,
including, but not limited to, requests for copies of records
attendant to the making of funeral arrangements or arrangements for
medical care, the clerk, in ascertaining whether a person seeking
access to discharge certificates or reports of separation from
active duty is qualified to do so pursuant to subsection (b) of
this section, may rely upon the sworn statement of the requestor
made in person before the clerk or his deputy.
(d) Notwithstanding the provisions of subsection (b) of this
section, the clerk may permit access to discharge certificates or
reports of separation from active duty of deceased persons for bona
fide genealogical or other research purposes.
The bill (Eng. Com. Sub. for H. B. No. 2001), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2001) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2001) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2110, Declaring that lawful design,
marketing, manufacture or sale of firearms or ammunition to the
public is not an unreasonably dangerous activity.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2190, Permitting certain
farm vehicles to use the highways between sunset and sunrise.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2406, Immunity from civil
liability for members of a national ski patrol system.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2441, Increasing the minimum subscribed
capital stock and capital surplus for new bank charter
applications.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2443, Relating to the
assessment of banking institutions.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 2534, Eliminating the property value limit
on the application of the tax.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2599, Authorizing the
department of education and the arts to promulgate legislative
rules.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2599) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2599) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2599) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2625, Authorizing the
department of health and human resources to promulgate legislative
rules.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2625) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: Bailey--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2625) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Boley, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison,
Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard,
Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith,
Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: Bailey--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2625) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2648, Authorizing the
department of transportation to promulgate legislative rules.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2648) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2648) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2648) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Eng. Com. Sub. for House Bill No. 2694, Protecting the
beekeeping industry.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2714, Relating to the
donation of firefighting and fire rescue equipment and insurance
policies dealing with immunity coverage provisions.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2715, Modernizing the
regulation of surplus lines insurers by enactment of the NAIC
nonadmitted insurance model act.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
On page sixty-three, section twenty-nine, line seven, by
striking out the word "eight".
The bill (Eng. Com. Sub. for H. B. No. 2715), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2715) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2715) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2765, Relating generally to insurance
vending machines.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk and adopted:
On page two, by striking out the enacting section and
inserting in lieu thereof a new enacting section, to read as
follows:
That section twenty-six, article twelve, chapter thirty-three
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; that section thirteen, article three of
said chapter be amended and reenacted; that section eighteen,
article four of said chapter be amended and reenacted; that
sections three, eight, ten, twenty-eight and thirty-two, article
twelve of said chapter be amended and reenacted; that section two,
article twenty-one of said chapter be amended and reenacted; that
sections two and thirty-three, article twenty-three of said chapter
be amended and reenacted; that section four, article twenty-four of
said chapter be amended and reenacted; that section twenty-six,
article twenty-five-d of said chapter be amended and reenacted; and
that section twenty-one, article thirty-two of said chapter be
amended and reenacted, all to read as follows:.
The bill (Eng. H. B. No. 2765), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Following discussion,
At the request of Senator Rowe, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's second reading calendar.
Eng. House Bill No. 2771, Repealing exemptions from gasoline
and special fuels excise tax for bulk sales to interstate motor
carriers.
On second reading, coming up in regular order, was read a
second time.
On motion of Senator Chafin, the bill was advanced to third
reading with the right for amendments to be considered on that
reading.
Eng. House Bill No. 2794, Increasing the service fee for
worthless checks.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections thirty-nine-e and thirty-nine-g, article three,
chapter sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-39e. Notice of dishonor by payee; service charge.
The payee or holder of a check, draft or order which has been
dishonored because of insufficient funds or credit may send notice
thereof to the drawer of the check, draft or order. The payee or
holder of any dishonored check may impose a fee of up to fifteen
twenty-five dollars a worthless check. This fee may not be imposed
or collected after a complaint for warrant has been delivered to
magistrate court. No payee or holder of a check, draft or order
which has been dishonored because of insufficient funds or credit
shall incur any civil or criminal liability for the sending of a
notice substantially in the form provided herein, other provisions
of law notwithstanding. The form of the notice shall be
substantially as follows:
"You are hereby notified that a check, number
________________, issued by you on (date of check), drawn upon (name of bank), and payable to ___________________________, has
been dishonored. Pursuant to West Virginia law, you have ten days
from the date of this notice to tender payment of the full amount
of the check plus a fee of $_____________________ (not to exceed
fifteen twenty-five dollars a worthless check) to the undersigned
at ___________________________. You are further notified that in
the event the above amount is timely paid in full you will not be
subject to legal proceedings, civil or criminal.
Dated _____________________, 19 20____.
_______________________________
(Signed)."
The provisions of this section do not authorize the making of
any other written or oral threats of prosecution to enforce or
enhance the collection or honoring of the dishonored check, draft
or order.
The holder or payee of any check, draft or order shall
relinquish the check, draft or order to the maker upon tender of
the full amount due at any time before a complaint for warrant has
been presented to magistrate court. In the event complaint for
warrant has been presented to magistrate court, payment may be made
only through the court and any holder or payee unlawfully accepting
payment after that time shall be liable for all costs which may be
imposed by the magistrate court in the matter, including all costs which may have accrued by the time the magistrate court is notified
of the payment.
§61-3-39g. Complaint; notice of complaint; issuance of warrant;
payment procedures; costs.
After receipt of a complaint for warrant for a violation of
section thirty-nine or thirty-nine-a of this article, the
magistrate court shall proceed with the issuance of the warrant as
is provided by law: Provided, That no warrant may issue for an
offense under section thirty-nine or thirty-nine-a of this article
which, upon conviction, would be punishable as a misdemeanor,
unless the payee or holder of the check, draft or order which has
been dishonored has sent notice thereof to the drawer of the check,
draft or order in accordance with the provisions of section thirty-
nine-e of this article or unless notice has been sent by the
magistrate as hereinafter provided. Proof that the notice was sent
by the payee or holder may be evidenced by presentation of a return
receipt indicating that the notice was mailed to the drawer by
certified mail or, in the event the mailed notice was not received
or was refused by the drawer, by presentation of the mailed notice
itself. The magistrate court shall receive and hold the check,
draft or order.
Upon receipt of a complaint for a misdemeanor warrant
unaccompanied by proof that notice was sent by the payee or holder,
the magistrate court shall immediately prepare and mail to the drawer of the check, draft or order a notice in form substantially
as follows. The magistrate court shall impose any service charge
reflected in the complaint as having been imposed on the payee or
holder by the payee's or holder's bank or financial institution in
connection with the check, draft or order and additional court
costs in the amount of ten twenty-five dollars. This notice shall
be mailed to the drawer by United States mail, first class and
postpaid, at the address provided at the time of presenting the
check, draft or order. Service of this notice is complete upon
mailing. The notice shall be in form substantially as follows:
"You are hereby notified that a complaint for a warrant for
your arrest has been filed with this office to the following effect
and purpose by ______________ who upon oath complains that on the
_______ day of _______________, 19 20____, you did unlawfully issue
and deliver unto him a certain check, draft or order in the amount
of ______________ drawn on _______________________________________
(name of bank or financial institution) where you did not have
funds on deposit in or credit with the bank or financial
institution with which to pay the check, draft or order upon
presentation and pray that a warrant issue and that you be
apprehended wherever you may be found by an officer authorized to
make an arrest and dealt with in accordance with the laws of the
state of West Virginia.
"A warrant for arrest will be issued on or after the _________
day of _______________________, 19 20_____.
"You can nullify the effect of this complaint and avoid arrest
by paying to the magistrate court clerk at ______________________
the amount due on the check, draft or order; service charges
imposed on the payee or holder by the payee's or holder's bank or
financial institution in connection with the check, draft or order
in the amount of __________; and the costs of this proceeding in
the amount of ten twenty-five dollars on or before the __________
day of ____________________, 19 20______, at which time you will be
given a receipt with which you can obtain the check, draft or order
from the magistrate court. The complainant is forbidden by law to
accept payment after the complaint is filed.
Magistrate Court of __________________ County
_____________________________________________
Date: ______________________________"
This notice shall give the drawer of any such check, draft or
order ten days within which to make payment to magistrate court.
In the event the drawer pays the total amount set forth in the
notice to the magistrate court within the ten-day period, no
warrant may issue. The payment may be made to the magistrate court
in person or by mail by cash, certified check, bank draft or money
order and, in the event the payment is made by mail, the magistrate
court clerk shall immediately mail to the maker of the check, draft or order the receipt required by this section. In the event the
total amount is not so paid, the court shall proceed with the
issuance of the warrant as is provided by law.
Upon receipt of payment of the total amount the magistrate
court clerk shall issue to the drawer a receipt sufficiently
describing the check, draft or order with which receipt the drawer
is entitled to receive the dishonored check, draft or order from
the magistrate court holding it. The magistrate court clerk shall
forward the amount of the check, draft or order, together with any
service charge reflected on the complaint as having been imposed on
the payee or holder by the payee's or holder's bank or financial
institution in connection with the check, draft or order, to the
payee or holder thereof, along with a description of the check,
draft or order sufficient to enable the person filing the complaint
to identify it and the transaction involved. Costs collected shall
be dealt with as is provided by law for other criminal proceedings.
The drawer of a check, draft or order against whom a warrant
has been issued may at any time prior to trial pay to the court the
amount of the check, draft or order; any service charge reflected
in the complaint as having been imposed on the payee or holder by
the payee's or holder's bank or financial institution in connection
with the check, draft or order; and the court costs which would be
assessed if the person were found guilty of the offense charged. These costs shall be imposed in accordance with the provisions of
section two, article three, chapter fifty of this code.
The bill (Eng. H. B. No. 2794), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: Boley--1.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2794) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman,
Caldwell, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--32.
The nays were: Boley and Chafin--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2794) passed.
The following amendment to the title of the bill, from the
Committee on the Judiciary, was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for House Bill No. 2794--A Bill to amend and
reenact sections thirty-nine-e and thirty-nine-g, article three,
chapter sixty-one of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to worthless checks;
and increasing the allowable service charge for a dishonored check.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 2866, Relating to construction financing
for surface transportation improvements through federal grant
anticipation notes.
On second reading, coming up in regular order, was reported by
the Clerk.
At the request of Senator Chafin, unanimous consent being
granted, further consideration of the bill was deferred until the
conclusion of bills on today's second reading calendar, following consideration of Engrossed House Bill No. 2765, already placed in
that position.
Eng. Com. Sub. for House Bill No. 2910, Establishing an "Amber
Alert" system to be utilized to rapidly disseminate information
with regard to abducted and missing children.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 3A. AMBER ALERT PLAN.
§15-3A-1. Short title.
This article shall be known and may be cited as "Amber's
Plan".
§15-3A-2. Findings and determinations relative to "Amber's Plan".
(a) The Legislature finds and determines that:
(1) Public alerts can be one of the most effective tools in
combating child abductions;
(2) Law-enforcement officers and other professionals
specializing in the field of abducted and missing children agree
that the most critical moments in the search for an abducted child
are the first few hours immediately following the abduction, asserting that if a child is not found within two to four hours, it
is unlikely that child will be found alive;
(3) The rapid dissemination of information, including a
description of the abducted child, details of the abduction,
abductor and vehicle involved, to the citizens of the affected
community and region is, therefore, critical;
(4) Alerted to an abduction, the citizenry become an extensive
network of eyes and ears serving to assist law enforcement in
quickly locating and safely recovering the child; and
(5) The most effective method of immediately notifying the
public of a child abduction is through the broadcast media.
(b) The Legislature declares that given the successes other
states and regions have experienced in using broadcast media alerts
to quickly locate and safely recover abducted children, it is
altogether fitting and proper, and within the public interest, to
establish such a program for West Virginia.
§15-3A-3. Establishment of "Amber's Plan".
(a) The secretary of the department of military affairs and
public safety shall establish "Amber's Plan", a program authorizing
the broadcast media, upon notice from the state police, to transmit
an emergency alert to inform the public of a child abduction. The
program shall be a voluntary, cooperative effort between state and
local law-enforcement agencies and the broadcast media.
(b) The secretary shall notify the broadcast media serving the
state of West Virginia of the establishment of "Amber's Plan" and
invite its voluntary participation.
§15-3A-4. Activation of Amber alert.
The following criteria shall be met before the state police
activate the Amber alert:
(1) The child is believed to be abducted;
(2) The child is seventeen years of age or younger;
(3) The child may be in danger of death or serious bodily
injury; and
(4) There is sufficient information available to indicate that
an Amber alert would assist in locating the child.
§15-3A-5. Notice to participating media; broadcast of alert.
(a) The participating media shall voluntarily agree, upon
notice from the state police, to transmit emergency alerts to
inform the public of a child abduction that has occurred within
their broadcast service regions.
(b) The alerts shall be read after a distinctive sound tone
and a statement notifying that the broadcast is an abducted child
alert. The alerts shall be broadcast as often as possible,
pursuant to guidelines established by the West Virginia
broadcasters' association, for the first three hours. After the
initial three hours, the alert shall be rebroadcast at such intervals as the investigating authority, the state police and the
participating media deem appropriate.
(c) The alerts shall include a description of the child, such
details of the abduction and abductor as may be known, and such
other information as the state police may deem pertinent and
appropriate. The state police shall, in a timely manner, update the
broadcast media with new information when appropriate concerning
the abduction.
(d) The alerts also shall provide information concerning how
those members of the public who have information relating to the
abduction may contact the state police or other appropriate law-
enforcement agency.
(e) Concurrent with the notice provided to the broadcast
media, the state police shall also notify the department of
transportation, the division of highways and the West Virginia
turnpike commission of the "Amber Alert" so that the department and
the affected authorities may, if possible, through the use of their
variable message signs, inform the motoring public that an "Amber
Alert" is in progress and may provide information relating to the
abduction and how motorists may report any information they have to
the state police or other appropriate law-enforcement agency.
(f) The alerts shall terminate upon notice from the state
police.
(g) The secretary, with the assistance of the participating
broadcast media, shall develop and undertake a campaign to inform
law-enforcement agencies about "Amber's Plan" and the emergency
alert program established under this article.
§15-3A-6. Guidelines; procedural rules.
The secretary may adopt guidelines and procedural rules to
effectuate the purposes of this article.
The bill (Eng. Com. Sub. for H. B. No. 2910), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2910) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 2910) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2948, Giving consumers
greater opportunity to successfully obtain discontinuation of
foreclosure sales and other efforts to repossess property.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3016, Allowing the department of health
and human resources to retain adult protective service records for
thirty years.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3018, Changing the amount of time that the
department of health and human resources must retain child
protective services' records.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3077, Authorizing the tax commissioner to
enter into agreements with the internal revenue service for
offsetting tax refunds against tax liabilities.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-11. Collection of tax.
(a) General. -- The tax commissioner shall collect the taxes,
additions to tax, penalties and interest imposed by this article or
any of the other articles of this chapter to which this article is
applicable. In addition to all other remedies available for the
collection of debts due this state, the tax commissioner may
proceed by foreclosure of the lien provided in section twelve of
this article or by levy and distraint under section thirteen of
this article.
(b) Prerequisite to final settlement of contracts with
nonresident contractor; user personally liable. -
(1) Any person contracting with a nonresident contractor
subject to the taxes imposed by articles thirteen, twenty-one and
twenty-four of this chapter shall withhold payment, in the final
settlement of such the contract, of such a sufficient amount, not
exceeding six percent of the contract price, as will in such the
person's opinion be sufficient to cover such the taxes, until the
receipt of a certificate from the tax commissioner to the effect
that the above referenced taxes imposed against the nonresident
contractor have been paid or provided for.
(2) If any person shall fail to withhold as provided herein,
such in subdivision (1) of this subsection, that person shall be is
personally liable for the payment of all such taxes attributable to
the contract, not to exceed six percent of the contract price. The
same taxes attributable shall be recoverable by the tax
commissioner by appropriate legal proceedings, which may include
issuance of an assessment under this article.
(c) Prerequisite for issuance of certificate of dissolution or
withdrawal of corporation. -- The secretary of 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 another state and admitted to do
business in this state, until the receipt of a certificate from the
tax commissioner to the effect that every tax administered under
this article imposed against any such corporation has been paid or provided for, or that the applicant is not liable for any tax
administered under this article.
(d) Prerequisite to final settlement of contract with this
state or political subdivision; penalty. -- All state, county,
district and municipal officers and agents making contracts on
behalf of this state or any political subdivision thereof shall
withhold payment, in the final settlement of any such contract,
until the receipt of a certificate from the tax commissioner to the
effect that the taxes imposed by articles thirteen, twenty-one and
twenty-four of this chapter against the contractor have been paid
or provided for. If the transaction embodied in such the contract
or the subject matter of the contract is subject to county or
municipal business and occupation tax, then such the payment shall
also be withheld until receipt of a release from such the county or
municipality to the effect that all county or municipal business
and occupation taxes levied or accrued against the contractor have
been paid. Any official violating this section shall be is subject
to a civil penalty of one thousand dollars, recoverable as a debt
in a civil action brought by the tax commissioner.
(e) Limited effect of tax commissioner's certificates. -- The
certificates of the tax commissioner provided for in subsections
(b), (c) and (d) of this section shall not bar subsequent
investigations, assessments, refunds and credits with respect to
the taxpayer.
(f) Payment when person sells out or quits business; liability
of successor; lien. -
(1) If any person subject to any tax administered under this
article sells out his, her or its business or stock of goods, or
ceases doing business, any tax, additions to tax, penalties and
interest imposed by this article or any of the other articles of
this chapter to which this article is applicable shall become due
and payable immediately and such that person shall, within thirty
days after selling out his, her or its business or stock of goods
or ceasing to do business, make a final return or returns and pay
any tax or taxes which may be are due. The unpaid amount of any
such tax shall be is a lien upon the property of such that person.
(2) The successor in business of any person who sells out his,
her or its business or stock of goods, or ceases doing business,
shall be is personally liable for the payments of tax, additions to
tax, penalties and interest unpaid after expiration of the thirty-
day period allowed for payment: Provided, That if the business is
purchased in an arms-length transaction, and if the purchaser
withholds so much of the consideration for the purchase as will
satisfy any tax, additions to tax, penalties and interest which may
be due until the seller produces a receipt from the tax
commissioner evidencing the payment thereof, the purchaser shall is
not be personally liable for any taxes attributable to the former
owner of the business unless the contract of sale provides for the purchaser to be liable for some or all of such the taxes. The
amount of tax, additions to tax, penalties and interest for which
the successor is liable shall be is a lien on the property of the
successor, which shall be enforced by the tax commissioner as
provided in this article.
(g) Priority in distribution of estate or property in
receivership; personal liability of fiduciary. -- All taxes due and
unpaid under this article shall be paid from the first money
available for distribution, voluntary or compulsory, in
receivership, bankruptcy or otherwise, of the estate of any person,
firm or corporation, in priority to all claims, except taxes and
debts due the United States which under federal law are given
priority over the debts and liens created by this article. Any
trustee, receiver, administrator, executor or person charged with
the administration of an estate who shall violate violates the
provisions of this section shall be is personally liable for any
taxes accrued and unpaid under this article, which are chargeable
against the person, firm or corporation whose estate is in
administration.
(h) Injunction. -- If the taxpayer fails for a period of more
than sixty days to fully comply with any of the provisions of this
article or of any other article of this chapter to which this
article is applicable, the tax commissioner may institute a
proceeding to secure an injunction to restrain the taxpayer from doing business in this state until the taxpayer fully complies with
the provisions of this article or any of such other articles. No
bond shall be is required of the tax commissioner in any action
instituted under this subsection.
(i) Costs. -- In any proceeding under this section, upon
judgment or decree for the tax commissioner, he or she shall be
awarded his or her costs.
(j) Refunds; credits; right to offset. -
(1) Whenever a taxpayer has a refund or credit due it for an
overpayment of any tax administered under this article, the tax
commissioner may reduce the amount of such the refund or credit by
the amount of any tax administered under this article, whether it
be the same tax or any other tax, which is owed by the same
taxpayer, and collectible as provided in subsection (a) of this
section.
_____(2) The tax commissioner may enter into agreements with the
internal revenue service that provide for offsetting state tax
refunds against federal tax liabilities; offsetting federal tax
refunds against state tax liabilities; and establishing the amount
of the offset fee per transaction which both agencies may charge
each other: Provided, That offsets under subdivision (1) of this
subsection shall occur prior to offset under this subdivision. At
the times moneys are received as a result of an offset of a
taxpayer's federal tax refund under the provisions of Section 6402(e) of the Internal Revenue Code, the taxpayer is given credit
against state tax liability for the amount of the offset less a
deduction for the offset fee imposed by the internal revenue
service.
(k) Spouse relieved of liability in certain cases. -
(1) In general. -- Under regulations prescribed by the tax
commissioner, if:
(A) A joint personal income tax return has been made for a
taxable year;
(B) On such the return there is a substantial understatement
of tax attributable to grossly erroneous items of one spouse;
(C) The other spouse establishes that in signing the return he
or she did not know, and had no reason to know, that there was such
a substantial understatement; and
(D) Taking into account all the facts and circumstances, it is
inequitable to hold the other spouse liable for the deficiency in
tax for such the taxable year attributable to such the substantial
understatement, then the other spouse shall be is relieved of any
liability for tax, including interest, additions to tax, and other
amounts for such the taxable year to the extent such the liability
is attributable to such the substantial understatement.
(2) Grossly erroneous items. -- For purposes of this
subsection, the term "grossly erroneous items" means, with respect
to any spouse:
(A) Any item of gross income attributable to such a spouse
which is omitted from gross income; and
(B) Any claim of a deduction, credit or basis by such a spouse
in an amount for which there is no basis in fact or law.
(3) Substantial understatement. -- For purposes of this
subsection, the term "substantial understatement" means any
understatement, as defined in regulations prescribed by the tax
commissioner, which exceed five hundred dollars.
(4) Understatement must exceed specified percentage of
spouse's income. -
(A) Adjusted gross income of twenty thousand dollars or less.
-- If the spouse's adjusted gross income for the preadjustment year
is twenty thousand dollars or less, this subsection shall apply
applies only if the liability described in subdivision (1) of this
subsection is greater than ten percent of such the adjusted gross
income.
(B) Adjusted gross income of more than twenty thousand
dollars. -- If the spouse's adjusted gross income for the
preadjustment year is more than twenty thousand dollars, paragraph
(A) shall be of this subdivision is applied by substituting
"twenty-five percent" for "ten percent".
(C) Preadjustment year. -- For purposes of this paragraph, the
term "preadjustment year" means the most recent taxable year of the
spouse ending before the date the deficiency notice is mailed.
(D) Computation of spouse's adjusted gross income. -- If the
spouse is married to another spouse at the close of the
preadjustment year, the spouse's adjusted gross income shall
include the income of the new spouse whether or not they file a
joint return.
(E) Exception for omissions from gross income. -- This
paragraph shall not apply to any liability attributable to the
omission of an item from gross income.
(5) Adjusted gross income. -- For purposes of this subsection,
the term "adjusted gross income" means the West Virginia adjusted
gross income of the taxpayer, determined under article twenty-one
of this chapter.
The bill (Eng. H. B. No. 3077), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3077) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3077) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3088, Authorizing the insurance
commissioner to require nonresident excess line brokers to remit
the surcharge on fire and casualty insurance policies.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3095, Authorizing the tax commissioner to
disclose to the treasurer certain information that would facilitate locating the owners of uncashed and unclaimed income tax refund
checks.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. House Bill No. 3104, Providing for commercial work orders
for vehicle and equipment repair, establishing criteria for
commercial vehicle and equipment repair vendors and requiring a
cost effectiveness analysis for issuing commercial work orders.
On second reading, coming up in regular order, was read a
second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3117, Requiring contractors
bidding on public works construction projects to submit valid bid
bonds in their proposals and to direct how public bids are
received.
On second reading, coming up in regular order, was read a
second time.
The following amendment to the bill, from the Committee on the
Judiciary, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 22. GOVERNMENT CONSTRUCTION CONTRACTS.
§5-22-1. Bidding required; government construction contracts to go
to qualified responsible bidder; debarment; exceptions.
(a) As used in this section, "the state and its subdivisions"
means the state of West Virginia, every political subdivision
thereof, every administrative entity that includes such a
subdivision, all municipalities and all county boards of education.
(b) The state and its subdivisions shall, except as provided
in this section, solicit competitive bids for every construction
project exceeding twenty-five thousand dollars in total cost:
Provided, That a vendor who has been debarred pursuant to the
provisions of sections thirty-three-a through thirty-three-f,
inclusive, article three, chapter five-a of this code may not bid
on or be awarded a contract under this section. All bids submitted
pursuant to this chapter shall include a valid bid bond or other
surety as approved by the state of West Virginia or its
subdivisions.
(c) Following the solicitation of such bids, the construction
contract shall be awarded to the lowest qualified responsible
bidder, who shall furnish a sufficient performance and payment
bond: Provided, That the state and its subdivisions may reject all
bids and solicit new bids on said project.
(d) All bids shall be opened in accordance with the provisions
of section two of this article, except design-build projects which
are governed by article twenty-two-a of this chapter are exempt
from these provisions.
_____(d) (e) Nothing in this section shall apply to:
(1) Work performed on construction or repair projects by
regular full-time employees of the state or its subdivisions;
(2) Prevent students enrolled in vocational educational
schools from being utilized in construction or repair projects when
such use is a part of the student's training program;
(3) Emergency repairs to building components and systems. For
the purpose of this subdivision, emergency repairs means repairs
that if not made immediately will seriously impair the use of such
building components and systems or cause danger to those persons
using such building components and systems; and
(4) Any situation where the state or a subdivision thereof
shall come to an agreement with volunteers, or a volunteer group,
whereby the governmental body will provide construction or repair
materials, architectural, engineering, technical or any other
professional services and the volunteers will provide the necessary
labor without charge to, or liability upon, the governmental body.
§5-22-2. Designation of time and place for opening of bids; right
to reject or withdraw bid; bid resubmission
.
(a) The public entity accepting public contract bids shall, in
its resolution providing for the contract or purchase and for the
advertisement for bids, designate the time and place that the bids
will be received and shall at that time and place publicly open the
bids and read them aloud. No public entity may accept or take any
bid, including receiving any hand-delivered bid, after the time advertised to take bids. No bid may be opened on days which are
recognized as holidays by the United States postal service. No
public entity may accept or consider any bids that do not contain
a valid bid bond or other surety approved by the state of West
Virginia or its subdivisions.
(b) The provisions and requirements of this section, section
one of this article, the requirements stated in the advertisement
for bids and the requirements on the bid form may not be waived by
any public entity. The public entity may only reject an erroneous
bid after the opening if all of the following conditions exist: (1)
An error was made; (2) the error materially affected the bid; (3)
rejection of the bid would not cause a hardship on the public
entity involved, other than losing an opportunity to receive
construction projects at a reduced cost; and (4) enforcement of the
bid in error would be unconscionable. If a public rejects a bid,
it shall maintain a file of documented evidence demonstrating that
all the conditions set forth in this subdivision existed. If the
public entity determines the bid to be erroneous, the public entity
shall return the bid security to the contractor.
(c) A contractor who withdraws a bid under the provisions of
this section may not resubmit a bid on the same project. If the
bid withdrawn is the lowest bid, the next lowest bid may be
accepted.
The bill (Eng. Com. Sub. for H. B. No. 3117), as amended, was
then ordered to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Weeks, White and
Tomblin (Mr. President)--33.
The nays were: Unger--1.
Absent: None.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
3117) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng.
Com. Sub. for H. B. No. 3117) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Eng. House Bill No. 3199, Relating to reduced telephone
service rates for qualified low-income residential consumers.
On second reading, coming up in regular order, was read a
second time.
The following amendments to the bill, from the Committee on
Health and Human Resources, were reported by the Clerk, considered
simultaneously, and adopted:
On page eight, section four, line thirty-nine, after the word
"of" by inserting the words "health and";
And,
On page nine, section four, lines fifty-seven through sixty-
one, by striking out the following: Final approved legislative
rules shall be submitted by the department of human services to the
legislative rule-making review committee on or before the first day
of August, one thousand nine hundred eighty-seven.
The bill (Eng. H. B. No. 3199), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 3199) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3199) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The end of today's second reading calendar having been
reached, the Senate returned to the consideration of
Eng. House Bill No. 2765, Relating generally to insurance
vending machines.
On third reading, coming up in deferred order, was read a
third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed House Bill No. 2765 pass?"
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--34.
The nays were: None.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2765) passed.
The following amendment to the title of the bill, from the
Committee on Banking and Insurance, was reported by the Clerk and
adopted:
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. House Bill No. 2765--A Bill to repeal section twenty-six,
article twelve, chapter thirty-three of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; to amend and
reenact section thirteen, article three of said chapter; to amend
and reenact section eighteen, article four of said chapter; to
amend and reenact sections three, eight, ten, twenty-eight and
thirty-two, article twelve of said chapter; to amend and reenact
section two, article twenty-one of said chapter; to amend and
reenact sections two and thirty-three, article twenty-three of said
chapter; to amend and reenact section four, article twenty-four of
said chapter; to amend and reenact section twenty-six, article
twenty-five-d of said chapter; and to amend and reenact section
twenty-one, article thirty-two of said chapter, all relating to
insurance agents, brokers, solicitors, insurers and certain health
service businesses; vending machines; clarifying license
requirement for insurance producers; increasing continuing
education requirements; clarifying fees charged; limiting the
issuance of service representative licenses and defining who is a
limited licensee for rental companies; and correcting certain
references in the chapter to article twelve and excess line
brokers.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Action as to Engrossed House Bill No. 2765 having been
concluded, the Senate proceeded to the consideration of
Eng. House Bill No. 2866, Relating to construction financing
for surface transportation improvements through federal grant
anticipation notes.
On second reading, coming up in deferred order, was read a
second time.
On motion of Senator Plymale, the following amendment to the
bill was reported by the Clerk and adopted:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That chapter seventeen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article two-d; that section
thirteen, article sixteen-a of said chapter be amended and
reenacted; and that sections one and two, article seventeen-a of
said chapter be amended and reenacted, all to read as follows:
ARTICLE 2D. PUBLIC-PRIVATE TRANSPORTATION ACT OF 2003.
§17-2D-1. Legislative findings and purposes.
The Legislature finds and declares:
(1) That there is a public need for timely acquisition or
construction of and improvements to transportation facilities within the state that are compatible with state and local
transportation plans;
(2) That public need may not be wholly satisfied by existing
ways in which transportation facilities are acquired, constructed
or improved;
(3) That authorizing private entities to acquire, construct or
improve one or more transportation facilities may result in the
availability of the transportation facilities to the public in a
more timely or less costly fashion, thereby serving the public
safety and welfare;
(4) That providing a mechanism for the receipt and
consideration of proposals submitted by private entities for the
purposes in this section shall serve the public purpose of this
article to the extent that action facilitates the timely
acquisition or construction of or improvement to a qualifying
transportation facility or the continued operation of a qualifying
transportation facility; and
(5) That providing for the expansion and acceleration of
transportation financing using innovative financing mechanisms and
the pooling and funding mechanisms of the transportation equity act
for the twenty-first century (TEA-21), and any successor
legislation, will add to the convenience of the public and allow
public and private entities to have the greatest possible flexibility in contracting with each other for the provision of the
public services which are the subject of this article.
§17-2D-2. Definitions.
As used in this article, the following words and terms have
the following meanings unless the context indicates another or
different meaning or intent:
(a) "Commissioner" means the commissioner of the West Virginia
division of highways.
(b) "Committee" means the public-private transportation
oversight committee established pursuant to section four of this
article.
(c) "Comprehensive agreement" means the comprehensive
agreement by and between the developer, the committee and the
responsible public entity required by section ten of this article.
(d) "Developer" means the private entity that is responsible
for the acquisition, construction or improvement of a qualifying
transportation facility.
(e) "Material default" means any default by the developer in
the performance of its duties under subsection (f), section nine of
this article that jeopardizes adequate service to the public from
a qualifying transportation facility and remains unremedied after
the responsible public entity has provided notice to the developer
and a reasonable cure period has elapsed.
(f) "Private entity" means any natural person, corporation,
limited liability company, partnership, joint venture or other
private business entity.
(g) "Public entity" means the West Virginia division of
highways or the parkways, economic development and tourism
authority.
(h) "Qualifying transportation facility" means one or more
transportation facilities acquired, constructed or improved by a
private entity pursuant to this article.
(i) "Responsible public entity" means a public entity that has
the power to acquire, construct or improve the applicable
transportation facility.
(j) "Revenues" means the user fees or service payments
generated by a qualifying transportation facility.
(k) "Service contract" means a contract entered into between
a public entity and the developer pursuant to section seven of this
article.
(l) "Service payments" means payments to the developer of a
qualifying transportation facility pursuant to a service contract.
(m) "State" means the state of West Virginia.
(n) "Transportation facility" means any road, bridge, tunnel
or overpass used for the transportation of persons or goods,
together with any other property that is needed to operate the
transportation facility: Provided, That the term transportation facility does not include a facility that would facilitate
transportation or persons or goods by air or water.
(o) "User fees" mean the rates, fees or other charges imposed
by the developer of a qualifying transportation facility for use of
all or a portion of the qualifying transportation facility pursuant
to the comprehensive agreement.
§17-2D-3. Prerequisites for development.
Any private entity seeking authorization under this article to
acquire, construct or improve a transportation facility shall first
obtain the approvals set forth in section six of this article. The
private entity shall initiate the approval process pursuant to
subsections (a) and (b) of said section or the committee may
alternatively request proposals pursuant to subsection (c) of said
section.
§17-2D-4. Creation of public-private transportation oversight
committee; membership.
(a) There is created the public-private transportation
oversight committee, consisting of eleven members, including the
commissioner, who shall be chairperson of the committee. All
members of the committee shall be residents of the state of West
Virginia. The remaining ten members shall consist of the executive
director of the West Virginia development office, the state highway
engineer and eight persons appointed by the governor from the
private sector, by and with the advice and consent of the Senate. The appointed members shall include two registered professional
engineers; two owners or officers of construction businesses; two
representatives of the interests of labor; and two who have
recognized ability in infrastructure development.
(b) The committee shall annually elect one of its members as
vice chairman and another as secretary of the committee.
Appointments to fill a vacancy shall be made in the same manner as
the original appointment.
(c) Members of the committee first appointed by the governor
shall serve staggered terms. The terms of the members of the
committee first taking office on and after the effective date of
this section expire as designated by the governor at the time of
nomination, two at the end of the first year, two at the end of the
second year, two at the end of the third year and two at the end of
the fourth year. As these original terms expire, each subsequent
appointment shall be for a full four-year term. Any member whose
term has expired shall serve until his or her respective successor
is appointed. The governor shall appoint members from each
congressional district in the state with at least two, and no more
than three, members who are residents of any one district.
(d) Members of the committee are not entitled to compensation
for their services but shall be reimbursed for all necessary
expenses actually incurred in connection with the performance of
their duties as members.
(e) Six members of the committee constitute a quorum and the
affirmative vote of a majority of members present at the meeting is
necessary and sufficient for any action of the committee except the
affirmative vote of at least nine members of the committee is
required to approve any proposal for a qualifying transportation
facility at either the conceptual planning or the detailed planning
stage: Provided, That the project must be approved by a concurrent
resolution approved by both the Senate and the House of Delegates.
(f) The committee shall, prior to the first day of January,
two thousand four, propose emergency legislative rules pursuant to
the provisions of article three, chapter twenty-nine-a of this code
to implement the provisions of this article.
§17-2D-5. Powers and duties of the committee.
In addition to the powers and duties set forth elsewhere in
this article, the committee shall:
(a) Undertake two levels of review for each proposal submitted
by a private entity in accordance with this article. The first
level of review shall consist of the review by the committee at the
conceptual planning level and the second level of review shall
consist of the review by the committee at the detailed planning
stage: Provided, That review by the committee of a proposal at
each level shall only be undertaken if the proposal has first
received approval at that level by the commissioner. At each level
of review, the committee shall take into account at all times the needs and funding capabilities of the state as a whole in terms of
transportation;
(b) Coordinate with the West Virginia department of
transportation, the division of highways and the parkways, economic
development and tourism authority or other parkways authorities
established pursuant to article sixteen-a of this chapter in the
exercise of its powers and duties under this article and
development of qualifying transportation facilities within the
state;
(c) Be a body corporate, including the power to sue and be
sued, to make contracts and to adopt and use a common seal and to
alter the seal as determined to be expedient;
(d) Enter into agreements, contracts or other transactions
with any federal, state, county, municipal agency or private
entity;
(e) Report annually to the Legislature by the first day of
December of each year on the status of projects, operations,
financial condition and other necessary information relating to
transportation facilities that have been approved by or are under
consideration by the committee;
(f) Act on behalf of the state and represent the state in the
planning, financing, development and construction of any
transportation facility for which solicited or unsolicited
proposals have been received in accordance with the provisions of this article, with the concurrence of the affected public entity.
Other public entities in this state shall cooperate to the fullest
extent the committee considers appropriate to effectuate the duties
of the committee; and
(g) Do any and all things necessary to carry out and
accomplish the purposes of this article.
§17-2D-6. Submission of proposals; approval by the committee.
(a) A private entity may submit any solicited or unsolicited
proposal for a transportation facility to the committee for
approval. In the case of all unsolicited proposals, a conceptual
proposal shall first be submitted for review and approval. The
conceptual proposal shall include the following:
(1) A statement of the entity's qualifications and experience;
(2) A description of the proposed transportation facility;
(3) A description of the financing for the transportation
facility; and
(4) A statement setting forth the degree of public support for
the proposed transportation facility, including a statement of the
benefits of the proposed transportation facility to the public and
its compatibility with existing transportation facilities.
(b) Following approval by the committee of the conceptual
proposal, a detailed proposal shall be submitted by the private
entity in connection with the proposed transportation facility.
Any proposal shall be accompanied by the following material and information unless waived by the committee with respect to the
transportation facility or facilities that the private entity
proposes to develop as a qualifying transportation facility:
(1) A topographic map (1:2,000 or other appropriate scale)
indicating the location of the transportation facility or
facilities;
(2) A description of the transportation facility or
facilities, including the conceptual design of the facility or
facilities and all proposed interconnections with other
transportation facilities;
(3) The projected total life-cycle cost of the transportation
facility or facilities and the proposed date for acquisition of or
the beginning of construction of, or improvements to, the
transportation facility or facilities;
(4) A statement setting forth the method by which the
developer proposes to secure all property interests required for
the transportation facility or facilities. The statement shall
include:
(A) The names and addresses, if known, of the current owners
of the property needed for the transportation facility or
facilities;
(B) The nature of the property interests to be acquired; and
(C) Any property that the responsible public entity is
expected to be requested to condemn;
(5) Information relating to the current transportation plans,
if any, of each affected local jurisdiction;
(6) A list of all permits and approvals required for
acquisition or construction of or improvements to the
transportation facility or facilities from local, state or federal
agencies and a projected schedule for obtaining the permits and
approvals;
(7) A list of public utility facilities, if any, that will be
crossed by the transportation facility or facilities and a
statement of the plans of the developer to accommodate the
crossings;
(8) A statement setting forth the developer's general plans
for financing and operating the transportation facility or
facilities;
(9) The names and addresses of the persons who may be
contacted for further information concerning the request;
(10) Information about the developer, including, but not
limited to, an organizational chart of the developer,
capitalization of the developer, experience in the operation of
transportation facilities and references; and
(11) Any additional material and information requested by the
committee.
(c) The committee may request proposals from private entities
for the acquisition, construction or improvement of transportation facilities in a form and with the content determined by the
committee.
(d) The committee may grant approval of the acquisition,
construction or improvement of the transportation facility or
facilities as a qualifying transportation facility if the committee
determines that it serves the public purpose of this article. The
committee may determine that the acquisition, construction or
improvement of the transportation facility or facilities as a
qualifying transportation facility serves a public purpose if:
(1) There is a public need for the transportation facility or
facilities of the type the private entity proposes to operate as a
qualifying transportation facility;
(2) The transportation facility or facilities and the proposed
interconnections with existing transportation facilities and the
developer's plans for development of the qualifying transportation
facility or facilities are reasonable and compatible with the state
transportation plan and with the local comprehensive plan or plans;
(3) The estimated cost of the transportation facility or
facilities is reasonable in relation to similar facilities;
(4) The acquisition, construction or improvement or the
financing of the transportation facilities does not involve the
dedication in any fiscal year of more than two percent of the
annual division of highways' construction contracts awarded by the
division under the competitive bidding process, averaged over the three immediately preceding fiscal years: Provided, That there may
not be taken into account in calculating the amount dedicated as
set forth in this subdivision and there shall be available for
dedication to the acquisition, construction or improvement of
transportation facilities any additional amounts specifically
appropriated from state general revenue funds or, in the discretion
of the division of highways, federal funds specifically earmarked
in a federal appropriations bill for a transportation facility to
be acquired, constructed or equipped pursuant to this article;
(5) The use of federal funds in connection with the financing
of a qualifying transportation facility has been determined by the
commissioner to be compatible with the state transportation plan
and with the local comprehensive plan or plans; and
(6) The private entity's plans will result in the timely
acquisition or construction of or improvements to the
transportation facility or facilities for their more efficient
operation and that the private entity's plans will result in a more
timely and economical delivery of the transportation facility than
otherwise available under existing delivery systems.
(e) In fulfilling its duties as prescribed by this article,
the committee shall be supported by the personnel of the division
of highways and may rely upon reports prepared by that personnel.
(f) The committee may charge a reasonable fee to cover the
costs of processing, reviewing and evaluating the request.
(g) Notwithstanding any provision of this article to the
contrary, the approval of the committee is subject to: (i) The
private entity's entering into a comprehensive agreement with the
committee and the responsible public entity; and (ii) the
requirement that public information dissemination with regard to
any proposal under consideration comply with the division of
highway's policy on the public involvement process, as revised.
(h) In connection with its approval of the development of the
transportation facility or facilities as a qualifying
transportation facility, the committee shall establish a date for
the acquisition of or the beginning of construction of or
improvements to the qualifying transportation facility. The
committee may extend that date.
§17-2D-7. Service contracts.
In addition to any authority otherwise conferred by law, any
public entity may contract for services to be provided for a
qualifying transportation facility in exchange for service payments
and other consideration as the responsible public entity determines
appropriate.
§17-2D-8. Dedication of public property.
Any public entity may dedicate any property interest that it
has for public use as a qualified transportation facility if it
finds it will serve the public purpose of this chapter. In
connection with the dedication, a public entity may convey any property interest that it has, subject to the conditions imposed by
general law, to the developer, subject to the provisions of this
chapter, for any consideration determined by the public entity.
This consideration may include, without limitation, the agreement
of the developer to develop the qualifying transportation facility.
No real property may be dedicated by a public entity pursuant to
this article unless all other public notice and comment
requirements on the public comment are met.
§17-2D-9. Powers and duties of the developer.
(a) The developer has all power allowed by law generally to a
private entity having the same form of organization as the
developer and may acquire, construct or improve the qualifying
transportation facility and impose user fees in connection with the
use of the facility. No tolls or user fees may be imposed by the
developer on any existing interstate highway. Furthermore, no
tolls or user fees may be imposed by the developer on any free
road, bridge, tunnel or overpass unless the road, bridge, tunnel or
overpass is reconstructed to provide for increased capacity.
(b) The developer may own, lease or acquire any other right to
facilitate the development of the qualifying transportation
facility.
(c) Any financing of the qualifying transportation facility
may be in the amounts and upon terms and conditions determined by
the developer. The developer may issue debt, equity or other securities or obligations, enter into sale and leaseback
transactions and secure any financing with a pledge of, security
interest in, or lien on, any or all of its property, including all
of its property interests in the qualifying transportation
facility.
(d) Subject to applicable permit requirements, the developer
may cross any canal or navigable watercourse as long as the
crossing does not unreasonably interfere with then current
navigation and use of the waterway.
(e) In developing the qualifying transportation facility, the
developer may:
(1) Make classifications according to reasonable categories
for assessment of user fees; and
(2) With the consent of the responsible public entity, make
and enforce reasonable rules to the same extent that the
responsible public entity may make and enforce rules with respect
to a similar transportation facility. The developer may, by
agreement with appropriate law-enforcement agencies, arrange for
video enforcement in connection with its toll collection
activities.
(f) The developer shall:
(1) Acquire, construct or improve the qualifying
transportation facility in a manner that meets the engineering
standards of:
(A) The responsible public entity for transportation
facilities operated and maintained by the responsible public
entity, in accordance with the provisions of the comprehensive
agreement; and
(B) The division of highways, in accordance with the
provisions of the comprehensive agreement;
(2) Keep the qualifying transportation facility open for use
by the members of the public at all times after its initial opening
upon payment of the applicable user fees or service payments:
Provided, That the qualifying transportation facility may be
temporarily closed because of emergencies or, with the consent of
the responsible public entity, to protect the safety of the public
or for reasonable construction or maintenance procedures;
(3) Contract for the performance of all maintenance and
operation of the transportation facility through the West Virginia
department of transportation, using its maintenance and operations
practices, until the date of termination of the developer's duties
as defined in the comprehensive agreement;
(4) Cooperate with the responsible public entity in
establishing any interconnection with the qualifying transportation
facility requested by the responsible public entity; and
(5) Comply with the provisions of the comprehensive agreement
and any service contract.
§17-2D-10. Comprehensive agreement.
(a) Prior to acquiring, constructing or improving the
qualifying transportation facility, the developer shall enter into
a comprehensive agreement with the committee and the responsible
public entity. The comprehensive agreement may provide for:
(1) Delivery of performance or payment bonds in connection
with the construction of or improvements to the qualifying
transportation facility, in the forms and amounts satisfactory to
the committee and the responsible public entity;
(2) Review of the final plans and specifications for the
qualifying transportation facility by the committee, by the
division of highways and by the responsible public entity and
approval by the responsible public entity if the plans and
specifications conform to standard conditions of the division of
highways and the responsible public entity;
(3) Inspection of the construction of or improvements to the
qualifying transportation facility to ensure that they conform to
the engineering standards acceptable to the division of highways
and the responsible public entity;
(4) Maintenance of a policy or policies of public liability
insurance or self-insurance, in a form and amount satisfactory to
the committee, the division of highways and the responsible public
entity and reasonably sufficient to insure coverage of tort
liability to the public and employees and to enable the continued
operation of the qualifying transportation facility: Provided, That in no event shall the insurance impose any pecuniary liability
on the state, its agencies or any political subdivision of the
state. Copies of the policies shall be filed with the committee
and the responsible public entity accompanied by proofs of
coverage;
(5) Monitoring of the maintenance and operating practices of
the developer by the responsible public entity and the taking of
any actions the responsible public entity finds appropriate to
ensure that the qualifying transportation facility is properly
maintained and operated;
(6) Reimbursement to be paid to the responsible public entity
for services provided by the responsible public entity;
(7) Filing of appropriate financial statements on a periodic
basis;
(8) A reasonable maximum rate of return on investment for the
developer; and
(9) The date of termination of the developer's authority and
duties under this article and dedication to the appropriate public
entity.
(b) The comprehensive agreement shall provide for user fees
established by agreement of the parties. Any user fees shall be
set at a level that, taking into account any service payments,
allows the developer the rate of return on its investment specified
in the comprehensive agreement. A copy of any service contract shall be filed with the committee and the responsible public
entity. A schedule of the current user fees shall be made
available by the developer to any member of the public on request.
In negotiating user fees under this section, the parties shall
establish fees that are the same for persons using the facility
under like conditions and that will not unreasonably discourage use
of the qualifying transportation facility. The execution of the
comprehensive agreement or any amendment to the comprehensive
agreement constitutes conclusive evidence that the user fees
provided for in the comprehensive agreement comply with this
article. User fees established in the comprehensive agreement as a
source of revenues may be in addition to, or in lieu of, service
payments.
(c) In the comprehensive agreement, the responsible public
entity may agree to make grants or loans to the developer, from
time to time, from amounts received from the state or federal
government or any agency or instrumentality of the state or federal
government.
(d) The comprehensive agreement shall incorporate the duties
of the developer under this article and may contain any other terms
and conditions that the responsible public entity determines serve
the public purpose of this chapter. Without limitation, the
comprehensive agreement may contain provisions under which the
responsible public entity agrees to provide notice of default and cure rights for the benefit of the developer and the persons
specified in the comprehensive agreement as providing financing for
the qualifying transportation facility. The comprehensive
agreement may contain any other lawful terms and conditions to
which the developer and the responsible public entity mutually
agree, including, without limitation, provisions regarding
unavoidable delays or provisions providing for a loan of public
funds to the developer to acquire, construct or improve one or more
qualifying transportation facilities.
(e) The comprehensive agreement may provide for the
distribution of any earnings in excess of the maximum rate of
return as negotiated in the comprehensive agreement. Without
limitation, excess earnings may be distributed to the responsible
public entity, to affected public entities, to the developer or
they may be shared.
(f) Any changes in the terms of the comprehensive agreement,
agreed upon by the parties, shall be added to the comprehensive
agreement by written amendment.
§17-2D-11. Federal, state and local assistance.
The responsible public entity may take any action to obtain
federal, state or local assistance for a qualifying transportation
facility that serves the public purpose of this article and may
enter into any contracts required to receive federal assistance.
If the responsible public entity is a state agency, any funds received from the state or federal government or any agency or
instrumentality thereof are subject to appropriation by the
Legislature. The responsible public entity may determine that it
serves the public purpose of this article for all or any portion of
the costs of a qualifying transportation facility to be paid,
directly or indirectly, from the proceeds of a grant or loan made
by the local, state or federal government or any agency or
instrumentality thereof.
§17-2D-12. Material default; remedies.
(a) Except upon agreement of the developer and any other
parties identified in the comprehensive agreement, a responsible
public entity shall not exercise any of the remedies provided in
this section or elsewhere in this article unless the responsible
public entity first certifies in writing to the committee that a
material default has occurred and is continuing.
(b) Upon written certification by the responsible public
entity to the committee that a material default exists, the
responsible public entity may exercise any or all of the following
remedies:
(1) The responsible public entity may elect to take over the
transportation facility or facilities and in that case it shall
succeed to all of the right, title and interest in the
transportation facility or facilities, subject to any liens on
revenues previously granted by the developer to any person providing financing for the facility or facilities and the
provisions of subsection (c) of this section;
(2) Any responsible public entity having the power of
condemnation under state law may exercise that power of
condemnation to acquire the qualifying transportation facility or
facilities. Any person who has provided financing for the
qualifying transportation facility and the developer, to the extent
of its capital investment, may participate in the condemnation
proceedings with the standing of a property owner;
(3) The responsible public entity may terminate the
comprehensive agreement and exercise any other rights and remedies
that may be available to it at law or in equity, subject only to
the express limitations of the terms of the comprehensive
agreement; and
(4) The responsible public entity may make or cause to be made
any appropriate claims under the performance or payment bonds
required by this article.
(c) In the event the responsible public entity elects to take
over a qualifying transportation facility pursuant to subdivision
(1), subsection (b) of this section, the responsible public entity
may acquire, construct or improve the transportation facility,
impose user fees for the use of the transportation facility and
comply with any service contracts as if it were the developer. Any
revenues that are subject to a lien shall be collected for the benefit of, and paid to, secured parties, as their interests may
appear, to the extent necessary to satisfy the developer's
obligations to secured parties, including the maintenance of
reserves and the liens shall be correspondingly reduced and, when
paid off, released. Remaining revenues, if any, after all payments
to, or for the benefit of, secured parties shall be paid to the
developer, subject to the negotiated maximum rate of return. The
right to receive the payment, if any, shall be considered just
compensation for the transportation facility or facilities. The
full faith and credit of the responsible public entity shall not be
pledged to secure any financing of the developer by the election to
take over the qualifying transportation facility. Assumption of
development of the qualifying transportation facility shall not
obligate the responsible public entity to pay any obligation of the
developer from sources other than revenues.
§17-2D-13. No liability.
The full faith and credit of the state, or any county,
municipality or political subdivision of the state shall not be
pledged to secure any financing of the developer in connection with
the acquisition, construction or equipping of a qualifying
transportation facility.
§17-2D-14. Condemnation.
(a) At the request of the developer, the responsible public
entity may exercise any power of condemnation that it has under law for the purpose of acquiring any lands or estates or interests in
any lands or estates to the extent that the responsible public
entity finds that the action serves the public purpose of this
article. Any amounts to be paid in any condemnation proceeding
shall be paid by the developer.
(b) Until the responsible public entity has provided written
certification as to the existence of a material default under
subsection (a), section twelve of this article, the power of
condemnation may not be exercised against a qualifying
transportation facility.
§17-2D-15. Utility crossings.
The developer and each county, municipality, public service
district, public utility, railroad and cable television provider
whose facilities are to be crossed or affected shall cooperate
fully with the other in planning and arranging the manner of the
crossing or relocation of the facilities. Any entity possessing
the power of condemnation is expressly granted the powers in
connection with the moving or relocation of facilities to be
crossed by the qualifying transportation facility or that must be
relocated to the extent that the moving or relocation is made
necessary or desirable by construction of or improvements to the
qualifying transportation facility, which shall be construed to
include construction of or improvements to temporary facilities for
the purpose of providing service during the period of construction or improvement. Any amount to be paid for the crossing,
construction, moving or relocating of facilities shall be paid for
by the developer.
§17-2D-16. Dedication of assets.
The responsible public entity shall terminate the developer's
authority and duties under this article on the date set forth in
the comprehensive agreement. Upon termination, the authority and
duties of the developer under this article cease and the qualifying
transportation facility shall be dedicated to the responsible
public entity or, if the qualifying transportation facility was
initially dedicated by an affected local jurisdiction, to the
affected local jurisdiction for public use.
§17-2D-17. Purchasing rules.
The provisions of article three, chapter five-a of this code
shall not apply to this article: Provided, That the provisions of
chapter five-g of this code apply to this article.
§17-2D-18. Qualifying transportation facilities as public
improvements.
For the purpose of establishing wages for the construction of
any qualifying transportation facility authorized under this
article, all qualifying transportation facilities shall be
considered public improvements and wages shall be determined in
accordance with section three, article five-a, chapter twenty-one
of this code. Competitive bids shall be solicited by the private entity for each construction contract in excess of fifty thousand
dollars in total cost. Competitive bids shall be solicited through
publication of a Class II legal advertisement, in compliance with
the provisions of article three, chapter fifty-nine of this code,
and the publication area shall be the county or municipality in
which the transportation facility is to be located. The
advertisement shall also be published as a Class II advertisement
in a newspaper of general circulation published in the city of
Charleston. The advertisement shall solicit sealed proposals for
the construction of the transportation facility, stating the time
and place for the opening of bids. All bids shall be publicly
opened and read aloud. Construction contracts shall be of
sufficient size that performance or payment bonds are in the five
million dollar to twenty million dollar range, if possible, and
shall be awarded to the lowest qualified responsible bidder who
shall furnish a sufficient performance or payment bond: Provided,
That the private entity has the right to reject all bids and
solicit new bids for the construction contract. The provisions of
article one-c, chapter twenty-one of this code apply to the
construction of all qualifying transportation facilities approved
under this article.
§17-2D-19. Termination date.
No proposal may be submitted by a private entity pursuant to
section six of this article after the first day of July, two
thousand six.
§17-2D-20. Construction.
The provisions of this article are remedial and shall be
liberally construed and applied so as to promote the purposes set
out in section one of this article.
§17-16A-13. Tolls, rents, fees, charges and revenues; competitive
bidding on contracts.
(a) (1) The parkways authority is hereby authorized to fix,
revise, charge and collect tolls for the use of each parkway
project and the different parts or sections thereof, and to fix,
revise, charge and collect rents, fees, charges and other revenues,
of whatever kind or character, for the use of each economic
development project or tourism project, or any part or section
thereof, and to contract with any person, partnership, association
or corporation desiring the use of any part thereof, including the
right-of-way adjoining the paved portion, for placing thereon
telephone, telegraph, electric light, power or other utility lines,
gas stations, garages, stores, hotels, restaurants and advertising
signs, or for any other purpose except for tracks for railroad or
railway use, and to fix the terms, conditions, rents and rates of
charges for such use. Such tolls, rents, fees and charges shall be
so fixed and adjusted in respect of the aggregate of tolls, or in respect of the aggregate rents, fees and charges, from the project
or projects in connection with which the bonds of any issue shall
have been issued as to provide a fund sufficient with other
revenues, if any, to pay: (A) The cost of maintaining, repairing
and operating such project or projects; and (B) the principal of
and the interest on such bonds as the same shall become due and
payable, and to create reserves for such purposes. Such tolls,
rents, fees and other charges shall not be subject to supervision
or regulation by any other commission, board, bureau, department or
agency of the state. The tolls, rents, fees, charges and all other
revenues derived from the project or projects in connection with
which the bonds of any issue shall have been issued, except such
part thereof as may be necessary to pay such cost of maintenance,
repair and operation and to provide such reserves therefor as may
be provided for in the resolution authorizing the issuance of such
bonds or in the trust agreement securing the same, shall be set
aside at such regular intervals as may be provided in such
resolution or such trust agreement in a sinking fund which is
hereby pledged to, and charged with, the payment of: (i) The
interest upon such bonds as such interest shall fall due; (ii) the
principal of such bonds as the same shall fall due; (iii) the
necessary charges of paying agents for paying principal and
interest; and (iv) the redemption price or the purchase price of
bonds retired by call or purchase as therein provided. The use and disposition of moneys to the credit of such sinking fund shall be
subject to the provisions of the resolution authorizing the
issuance of such bonds or of such trust agreement. Except as may
otherwise be provided in such resolution or such trust agreement,
such sinking fund shall be a fund for all such bonds without
distinction or priority of one over another. The moneys in the
sinking fund, less such reserve as may be provided in such
resolution or trust agreement, if not used within a reasonable time
for the purchase of bonds for cancellation as above provided, shall
be applied to the redemption of bonds at the redemption price then
applicable.
(2) (A) In fiscal year one thousand nine hundred ninety-eight,
after the parkways authority has met or provided for the
satisfaction of each requirement imposed by the provisions of
subdivision (1) of this subsection, the parkways authority shall
pay two hundred fifty thousand dollars to the Hatfield-McCoy
regional recreation authority from any remaining balance of
revenues received from economic development projects and tourism
projects.
(B) Upon the effective date of this act, the parkways
authority shall seek authorization from the federal highway
administration, the state department of transportation and the
trustee under any trust indenture or agreement existing as the
result of the issuance of any revenue bonds under the provisions of this article to issue additional revenue bonds in a total amount
not to exceed six million dollars for the purpose of funding
projects of the Hatfield-McCoy regional recreation authority. Upon
the agreement of all of such entities that the parkways authority
be authorized to do so, as certified to the parkways authority, the
governor and the joint committee on government and finance, the
parkways authority is authorized to issue additional revenue bonds
in a total amount not to exceed six million dollars. The proceeds
of the revenue bonds shall be used to fund projects of the
Hatfield-McCoy regional recreation authority. Each issuance of
such revenue bonds and the application of the proceeds thereof
shall be subject to each condition, restriction or other provision
of this article applicable to the issuance of parkway revenue
bonds. In the event the agreement is not certified as required by
this subsection, and until the same is certified, the parkways
authority shall pay two hundred fifty thousand dollars to the
Hatfield-McCoy regional recreation authority in the fiscal year
ending the thirtieth day of June, two thousand, and in each fiscal
year thereafter, for a total of four nine consecutive years, for
the purpose of funding projects of the Hatfield-McCoy regional
recreation authority. These amounts shall be paid in quarterly
installments from remaining balances in each such fiscal year of
revenues received from economic development projects and tourism projects as determined in the manner provided in paragraph (A) of
this subdivision.
(b) The parkways authority shall cause, as soon as it is
legally able to do so, all contracts to which it is a party and
which relate to the operation, maintenance or use of any
restaurant, motel or other lodging facility, truck and automobile
service facility, food vending facility or any other service
facility located along the West Virginia turnpike, to be renewed on
a competitive bid basis. All contracts relating to any facility or
services entered into by the parkways authority with a private
party with respect to any project constructed after the effective
date of this legislation shall be let on a competitive bid basis
only. If the parkways authority receives a proposal for the
development of a project, such proposal shall be made available to
the public in a convenient location in the county wherein the
proposed facility may be located. The parkways authority shall
publish a notice of the proposal by a Class I legal advertisement
in accordance with the provisions of article three, chapter fifty-
nine of this code. The publication area shall be the county in
which the proposed facility would be located. Any citizen may
communicate by writing to the parkways authority his or her
opposition to or approval to such proposal within a period of time
not less than forty-five days from the publication of the notice.
No contract for the development of a project may be entered into by the parkways authority until a public hearing is held in the
vicinity of the location of the proposed project with at least
twenty days' notice of such hearing by a Class I publication
pursuant to section two, article three, chapter fifty-nine of this
code. The parkways authority shall make written findings of fact
prior to rendering a decision on any proposed project. All
studies, records, documents and other materials which are
considered by the parkways authority in making such findings shall
be made available for public inspection at the time of the
publication of the notice of public hearing and at a convenient
location in the county where the proposed project may be located.
The parkways authority shall promulgate rules in accordance with
chapter twenty-nine-a of this code for the conduct of any hearing
required by this section. Persons attending any such hearing shall
be afforded a reasonable opportunity to speak and be heard on the
proposed project.
ARTICLE 17A. CONSTRUCTION FINANCING FOR SURFACE TRANSPORTATION
IMPROVEMENTS.
§17-17A-1. Purpose and scope.
This article is intended to facilitate the acquisition of
right-of-way for, the construction of, the reconstruction of and
the improvement or repair of any interstate or other highway
facility designated as a part of the federal-aid highway system or
any toll bridge, secondary road, bridge and toll road to be funded, wholly or in part, by amounts to be made available pursuant to the
Federal Surface Transportation Assistance Act of one thousand nine
hundred eighty-two transportation equity act for the twenty-first
century or from amounts to be made available pursuant to any other
succeeding federal legislation or from amounts specifically
appropriated or dedicated therefor for the highway facility or toll
bridge by the state or from amounts which may be properly expended
from the state road fund under article three of this chapter:
Provided, That the provisions and funding pursuant to article two-d
of this chapter shall not apply to, or be available for, roads in
the Appalachian highway development system as designated by the
Appalachian regional commission. This article authorizes federal
grant anticipation notes, in an aggregate amount of outstanding
notes not to exceed two five hundred million dollars, to be issued
to provide financing for such the projects in anticipation of
reimbursement from such those sources, but such the notes will be
are special obligations of the state only, and will are not be
general obligations of the state or secured by any claim on the
general credit or taxing powers of the state.
§17-17A-2. Definitions.
As used in this article, the following words and terms shall
have the following meanings:
"Commissioner" means the West Virginia commissioner of
highways.
"Cost", when used with respect to any surface transportation
improvement, means any and all costs of acquiring, constructing,
reconstructing, replacing, completing or repairing any surface
transportation improvement, facility designated as a part of the
federal-aid highway system, or any toll bridge, including, without
limiting the generality of the foregoing but not limited to, land,
property, rights, franchises, materials, labor and services,
contractors' fees, planning and engineering expenses, financing
costs, legal fees, trustees' or paying agents' fees and interest on
obligations issued under this article: Provided, That the
provisions and funding pursuant to article two-d of this chapter
shall not apply to, or be available for, roads in the Appalachian
highway development system as designated by the Appalachian
regional commission.
"Federal grant anticipation note" means any note or other
obligation issued in accordance with 23 U. S. C. §122, as amended,
and pursuant to this article.
"Outstanding note" means a federal grant anticipation note
which that has been issued pursuant to this article and has not
been repaid, but does not include notes which are to be paid from
designated moneys or securities which are irrevocably held in trust
solely for such that purpose.
"Surface transportation improvement" means any interstate or
other highway, secondary road, bridge and toll road construction, reconstruction, improvement or repair as to the construction,
reconstruction, improvement or repair of any interstate or other
highway facility designated as a part of the federal highway
system, or any toll bridge, for which all or a portion of the cost
thereof is to be reimbursed to the state under federal legislation:
Provided, That the provisions and funding pursuant to article two-d
of this chapter shall not apply to, or be available for, roads in
the Appalachian highway development system as designated by the
Appalachian regional commission.
The bill (Eng. H. B. No. 2866), as amended, was then ordered
to third reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love,
McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso,
Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and
Tomblin (Mr. President)--34.
The nays were: None.
Absent: None.
Having been engrossed, the bill (Eng. H. B. No. 2866) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: Smith--1.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2866) passed.
On motion of Senator Plymale, the following amendment to the
title of the bill was reported by the Clerk and adopted:
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. House Bill No. 2866--A Bill to amend chapter seventeen of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new article, designated article two-d;
and to amend and reenact sections one and two, article seventeen-a
of said chapter, all relating to establishment of the public-
private transportation act of two thousand three; setting forth
legislative findings and purposes; defining terms; providing
prerequisites for development of a transportation facility;
providing for the creation of a public-private transportation oversight committee and its membership; setting forth the powers
and duties of the committee; providing for the submission of
proposals and approval by the committee; providing for service
contracts; providing for the dedication of public property; setting
forth the powers and duties of a developer; requiring a
comprehensive agreement; providing for federal, state and local
assistance; addressing material default and remedies; prohibiting
governmental entities from pledging full faith and credit;
providing for the exercise of condemnation; addressing utility
crossings; addressing dedication of assets; providing for an
exemption from purchasing rules; qualifying transportation
facilities as public improvements; setting forth a termination
date; addressing construction; construction financing for surface
transportation improvements through federal grant anticipation
notes; extending the funding for the Hatfield-McCoy regional
recreational authority from four to nine consecutive years; and
providing that the provisions and funding pursuant to article two-
d, chapter seventeen of this code shall not apply to or be
available for roads in the Appalachian highway development system
as designated by the Appalachian regional commission.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr.
President)--33.
The nays were: Smith--1.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 2866) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business.
Eng. House Bill No. 2961, Limiting idling of school bus
engines for more than five minutes except for certain reasons.
Having been removed from the Senate first reading calendar in
earlier proceedings today, no further action thereon was taken.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 2194, Reimbursement to police agencies for
training and certification costs.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 2194) contained in the preceding
report from the Committee on Government Organization was taken up
for immediate consideration, read a first time, ordered to second
reading and, under the original double committee reference, was
then referred to the Committee on Finance, with amendments from the
Committee on Government Organization pending.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2237, Adding a magistrate in
Monongalia and Wood counties.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2237) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time, ordered to
second reading and, under the original double committee reference,
was then referred to the Committee on Finance, with amendments from
the Committee on the Judiciary pending.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 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.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. H. B. No. 2363) contained in the preceding report from the Committee on the Judiciary was taken up for
immediate consideration, read a first time, ordered to second
reading and, under the original double committee reference, was
then referred to the Committee on Finance, with an amendment from
the Committee on the Judiciary pending.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 2729, Clarifying the members of
professional licensing boards may be compensated only for days
which they attend official meetings and not for travel days.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 2729) contained in the preceding
report from the Committee on Government Organization was taken up
for immediate consideration, read a first time, ordered to second
reading and, under the original double committee reference, was
then referred to the Committee on Finance.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. Com. Sub. for House Bill No. 2749, Allowing for
reciprocal licensing of physical therapists from other states and
countries.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2749) contained in
the preceding report from the Committee on Government Organization
was taken up for immediate consideration, read a first time,
ordered to second reading and, under the original double committee
reference, was then referred to the Committee on Finance, with
amendments from the Committee on Government Organization pending.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2768, Enacting a
standardized false alarm ordinance.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on the Judiciary.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2768) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 2878, Allowing certain municipalities
providing advanced life support ambulance services to examine,
train and employ fire medics.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 2878) contained in the preceding
report from the Committee on Government Organization was taken up
for immediate consideration, read a first time, ordered to second
reading and, under the original double committee reference, was
then referred to the Committee on the Judiciary, with amendments
from the Committee on Government Organization pending.
Senator Sharpe, from the Committee on Energy, Industry and
Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under
consideration
Eng. House Bill No. 2882, Limiting requirements for stays for
appeals under the surface coal mining and reclamation act for
unjust hardship.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on the Judiciary.
Respectfully submitted,
William R. Sharpe, Jr.,
Chair.
At the request of Senator Sharpe, unanimous consent being
granted, the bill (Eng. H. B. No. 2882) contained in the preceding
report from the Committee on Energy, Industry and Mining was taken
up for immediate consideration, read a first time, ordered to
second reading and, under the original double committee reference,
was then referred to the Committee on the Judiciary.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2902, Relating to
confidentiality and disclosure of information set forth in oil and
gas combined reporting form.
And reports the same back with the recommendation that it do
pass; but under the original double committee reference first be
referred to the Committee on Finance.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Helmick, as chair of the Committee
on Finance, unanimous consent was granted to dispense with the
second committee reference of the bill contained in the foregoing
report from the Committee on the Judiciary.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2902) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 3011, Relating to authority of the state
fire commission to promulgate legislative and emergency rules.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 3011) contained in the preceding report from the Committee on Government Organization was taken up
for immediate consideration, read a first time, ordered to second
reading and, under the original double committee reference, was
then referred to the Committee on the Judiciary, with amendments
from the Committee on Government Organization pending.
Senator Kessler, from the Committee on the Judiciary,
submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3051, Altering the certain
reportable threshold dollar amounts on legislative member financial
disclosure statements and lobbyist reports.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3051) contained in
the preceding report from the Committee on the Judiciary was taken
up for immediate consideration, read a first time and ordered to
second reading.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 3084, Restructuring the support
enforcement commission in the areas of membership, duties and
powers.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended; but under the original double committee reference
first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 3084) contained in the preceding
report from the Committee on Government Organization was taken up
for immediate consideration, read a first time, ordered to second
reading and, under the original double committee reference, was
then referred to the Committee on the Judiciary, with an amendment
from the Committee on Government Organization pending.
Senator Bowman, from the Committee on Government Organization,
submitted the following report, which was received:
Your Committee on Government Organization has had under
consideration
Eng. House Bill No. 3195, Changing agency termination dates
pursuant to West Virginia sunset law.
And has amended same.
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being
granted, the bill (Eng. H. B. No. 3195) contained in the preceding
report from the Committee on Government Organization was taken up
for immediate consideration, read a first time and ordered to
second reading.
On motion of Senator Chafin, the constitutional rule requiring
a bill to be read on three separate days was suspended by a vote of
four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey,
Boley, Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caldwell--1.
The bill (Eng. H. B. No. 3195) was then read a second time.
The following amendments to the bill, from the Committee on
Government Organization, were reported by the Clerk, considered
simultaneously, and adopted:
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, after the words "veterinary medicine;" by inserting the words
"board of dental examiners;".
The bill, as amended, was ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 3195) was then
read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe,
McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe,
Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin
(Mr. President)--33.
The nays were: None.
Absent: Caldwell--1.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. H.
B. No. 3195) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the
Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until
tomorrow, Thursday, March 6, 2003, at 11 a.m.
____________