Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
Senators Tomblin (Mr. President), McCabe and Rowe offered the
following resolution:
Senate Resolution No. 33--Memorializing the life of John L.
McClaugherty, prominent attorney, legal scholar, civic leader,
promoter of the arts, former Senate Judiciary chief counsel and
dedicated West Virginian.
Whereas, John L. McClaugherty, a native of Princeton, Mercer
County, was born February 13, 1931. He graduated from Northwestern
University in 1953 with a B. S. degree and graduated from West
Virginia University College of Law in 1956 with a LL. B. degree.
From 1956 to 1959, he served as a Staff Judge Advocate for the
United States Air Force, Lackland Air Force Base; and
Whereas, In 1959, John L. McClaugherty joined the law firm of
Jackson, Kelly, Holt & O'Ferrell, which is West Virginia's oldest
and largest law firm. He served as the firm's managing member from
1986 to 2002; and
Whereas, From approximately 1967 to 1975, John L. McClaugherty
served the Senate of West Virginia as chief counsel to the
Committee on the Judiciary under the leadership of his longtime
friend, the Honorable William T. Brotherton, Jr., who had been
appointed chairman; and
Whereas, Even after leaving the Senate, John L. McClaugherty's
legal knowledge and constitutional expertise was regularly sought
by Senator Brotherton who had been elected President of the Senate
in 1973; and
Whereas, The professional involvement of John L. McClaugherty
earned him the respect and admiration of his fellow colleagues in
the legal profession which is evidenced by a lengthy list of
professional achievements. He specialized in constitutional law,
appellate law, legislative drafting, natural resources and workers'
compensation defense. His numerous legal affiliations included the
American Bar Association; American Judicature Society; Life Member,
Fellow and Past President, American Bar Foundation, of which he
served as West Virginia Chair in 2002; Fellow and Past President,
West Virginia Bar Foundation; Member and Past Member, Board of
Governors, West Virginia State Bar; Member and Past President, West
Virginia Bar Association; Member and Past President, Kanawha County
Bar Association; Life Member and former Executive Secretary, West
Virginia Judicial Council; Commissioner and Past President,
National Conference of Commissioners on Uniform State Laws;
Permanent Member, Judicial Conference of the United States Court of
Appeals for the Fourth Circuit; Permanent Member and Past
President, Eastern Mineral Law Foundation; Member, Committee to
Support Court Appointed Special Advocates; and an industry representative on the Mandolidis Commission; and
Whereas, The name John L. McClaugherty became synonymous with
proactive leadership, a superior legal mind and true community
spirit. His involvement in community projects, activities and
events was legendary. His civic-minded activities earned him
numerous awards and honors; and
Whereas, John L. McClaugherty's love of the performing arts
brought him to the presidency of the Board of Directors of the West
Virginia Symphony Orchestra, a position he held since 1982. He
served the American Symphony Orchestra League as Vice Chairman of
its Board of Directors and as an Executive Committee Member from
1990 to 2000. He was a member of the Board of Directors of the
Fund for the Arts and he was Vice Chairman of the Clay Center for
the Arts and Sciences of West Virginia, of which he was immensely
proud to see nearly completed; and
Whereas, Whether he was in a courtroom, a committee room, a
board room or a symphony hall, John L. McClaugherty was, above all,
a true gentleman. His tenacious approach to fundraising for the
causes in which he truly believed was understood and admired by all
who knew him; and
Whereas, Sadly, the distinguished life of John L. McClaugherty
came to an end on March 4, 2003, leaving behind his lovely wife of
nearly fifty years, Sallie; son John and daughter-in-law Leslie and their two sons, Carter and Addison; and daughter Martha and son-in-
law Brad Nepa and their two daughters, Maria and Angela; therefore,
be it
Resolved by the Senate:
That the Senate hereby memorializes the life of John L.
McClaugherty, prominent attorney, legal scholar, civic leader,
promoter of the arts, former Senate Judiciary chief counsel and
dedicated West Virginian; and, be it
Further Resolved, That the Senate is appreciative of John L.
McClaugherty's distinguished service to the West Virginia Senate as
chief counsel to the Committee on the Judiciary, along with his
continued availability to the Senate as a trusted and valued
consultant on various legislative issues through the years. Because
of his knowledge and expertise of the legislative process and
constitutional law, he was truly an invaluable legislative
resource; and, be it
Further Resolved, That the Senate applauds the community
service and civic-mindedness of John L. McClaugherty, especially in
the realm of the performing arts; and, be it
Further Resolved, That the Clerk is hereby directed to forward
a copy of this resolution to the family of the late John L.
McClaugherty.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration,
reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one
minute.
Upon expiration of the recess, the Senate reconvened and
resumed business under the sixth order.
On motion of Senator Plymale, the Senate requested the return
from the House of Delegates of
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.
Passed by the Senate on yesterday, Friday, March 7, 2003; for
the purpose of subsequently moving reconsideration of the vote
thereon.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence as to the recall
of Engrossed House Bill No. 2363.
At the request of Senator Chafin, unanimous consent being
granted, Senator Chafin offered the following resolution from the
floor:
Senate Concurrent Resolution No. 60--Suspending Joint Rule 3b
as to time limit on filing of conference committee reports.
Resolved by the Legislature of West Virginia, two thirds of
the members present agreeing thereto:
That the time limit established by Joint Rule 3b is hereby
suspended for the sixtieth day of this regular session of the
seventy-sixth Legislature, and for this day, conference committees
may file their reports with the Clerk of each house, said reports
to be announced during session, until 9 o'clock, p.m., with a
thirty-minute examination period.
At the request of Senator Chafin, unanimous consent being
granted, the resolution was taken up for immediate consideration
and reference to a committee dispensed with.
The question being on the adoption of the resolution, the same
was put.
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 present and voting having
voted in the affirmative, the President declared the resolution (S. C. R. No. 60) adopted.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent,
the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Concurrent Resolution No. 61 (originating in the
Committee on Finance)--Authorizing the issuance of revenue bonds to
provide new capital improvements consisting of facilities,
buildings and structures for state institutions of higher
education.
Whereas, The West Virginia Higher Education Policy Commission
is a governmental instrumentality of the State of West Virginia
empowered and authorized to issue bonds by section eight, article
ten, chapter eighteen-b of the code of West Virginia and section
one, article twelve-b, chapter eighteen of said code; and
Whereas, Section eighteen-a, article twenty-two, chapter
twenty-nine of the code of West Virginia provides for the
allocation and appropriation of net profits of state lottery funds;
and
Whereas, In accordance with the provisions of section eighteen-a, article twenty-two, chapter twenty-nine of the code of
West Virginia, a special revenue fund within the state lottery fund
in the state treasury was established and is known as the "State
Excess Lottery Revenue Fund". This fund provides for ten million
dollars to be deposited within the state lottery fund to a
subaccount to be known as the "Higher Education Improvement Fund
for Higher Education"; and
Whereas, In accordance with the provisions of section
eighteen-a, article twenty-two, chapter twenty-nine of the code of
West Virginia, the adoption of a concurrent resolution by the
Legislature will authorize the issuance of bonds and payment of
debt service on the bonds from the Higher Education Improvement
Fund. The bonds will be issued by the Higher Education Policy
Commission, payable from proceeds from the Higher Education
Improvement Fund within the State Excess Lottery Revenue Fund and
from revenues pledged from a combination of tuition and
registration fees. The Lottery Director shall deposit into the
State Excess Lottery Revenue Fund, created pursuant to said
section, the sum of ten million dollars in each fiscal year to be
used to pay debt service on the revenue bonds issued by the
Commission to finance improvements for state institutions of higher
education. The revenues pledged for the repayment of principal and
interest of these bonds shall include tuition and registration fees authorized by sections one and eight, article ten, chapter
eighteen-b of said code and section one, article twelve-b, chapter
eighteen of said code; and
Whereas, Except as may otherwise be expressly provided by the
Commission, every issue of its bonds shall be special obligations
of the Commission, payable solely from the tuition and registration
fees or other sources available to the Commission which were
pledged therefor; and
Whereas, The bonds shall be authorized by resolution of the
Commission and shall bear such rate or rates of interest as the
resolution may provide; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby authorizes the issuance of revenue
bonds by the Higher Education Policy Commission to provide new
capital improvements consisting of facilities, buildings and
structures for state institutions of higher education; and, be it
Further Resolved, That, except as may otherwise be provided by
the Commission, every issue of its bonds shall be special
obligations of the Commission, payable solely from the tuition and
registration fees or other sources available to the Commission
which were pledged therefor, including the Higher Education
Improvement Fund; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Governor and
the Commission.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the resolution (S. C. R. No. 61) contained in the
preceding report from the Committee on Finance was taken up for
immediate consideration.
The question being on the adoption of the resolution, the same
was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Resolution No. 34 (originating in the Committee on
Finance)--Granting permission to introduce a bill relating to
providing financing for the construction of capital improvements
to, and renovation of, the state capitol complex and its
appurtenant facilities.
Resolved by the Senate of West Virginia, two thirds of the
members present and voting agreeing thereto:
That in accordance with Senate Rule No. 14, permission is
hereby given to introduce a bill with the following title:
A Bill to amend and reenact section eighteen, article twenty-
two, chapter twenty-nine of the code of West Virginia, one thousand
nine hundred thirty-one, as amended; and to amend article fifteen,
chapter thirty-one of said code by adding thereto a new section,
designated section six-c, all relating to the creation of a capitol
renovation and improvement debt service fund; providing for the
construction and financing of renovations to and improvement of the
existing capitol complex and its appurtenant facilities;
authorizing the issuance of bonds by the West Virginia economic
development authority to finance the construction of capital
improvements and renovations to the existing capitol complex and
its appurtenant facilities; and requiring department of
administration to certify a list of projects to the joint committee
on government and finance prior to expenditure from fund.
And reports the same back with the recommendation that it be
adopted.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the resolution (S. R. No. 34) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration.
The question now being on the adoption of the resolution, the
same was put.
On this question, the yeas were: Bailey, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, 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 Harrison--2.
Absent: None.
So, two thirds of all the members present and voting having
voted in the affirmative, the President declared the resolution (S.
R. No. 34) adopted.
Thereupon, under the provisions of Senate Resolution No. 34
(Granting permission to introduce bill relating to providing
financing for improvements to capitol complex), immediately
hereinbefore adopted,
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 663 (originating in the Committee on Finance)-
-A Bill to amend and reenact section eighteen, article twenty-two,
chapter twenty-nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend article fifteen,
chapter thirty-one of said code by adding thereto a new section,
designated section six-c, all relating to the creation of a capitol
renovation and improvement debt service fund; providing for the
construction and financing of renovations to and improvement of the
existing capitol complex and its appurtenant facilities;
authorizing the issuance of bonds by the West Virginia economic
development authority to finance the construction of capital
improvements and renovations to the existing capitol complex and
its appurtenant facilities; and requiring department of
administration to certify a list of projects to the joint committee
on government and finance prior to expenditure from fund.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (S. B. No. 663) contained in the preceding report
from the Committee on Finance 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, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer,
Fanning, Guills, 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: Harrison--1.
Absent: None.
The bill was read a second time and ordered to engrossment and
third reading.
Engrossed Senate Bill No. 663 was then read a third time and
put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
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 Harrison--2.
Absent: None.
So, a majority of all the members present and voting having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 663) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Bowman, Caldwell,
Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, 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 Harrison--2.
Absent: None.
So, two thirds of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 663) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2051, Expanding the
eligibility of part-time students for higher education adult
part-time student grants.
With amendments from the Committee on Education pending;
And also has amended same.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2003;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Education to which the bill was
first referred; and as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2051) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Education, was reported by the Clerk:
On page two, by striking out everything after the enacting
section and inserting in lieu thereof the following:
ARTICLE 5. HIGHER EDUCATION GRANT PROGRAM.
§18C-5-7. Higher education adult part-time student grant program.
(a) There is established the higher education adult part-time
student grant program, hereafter referred to in this section as the
HEAPS grant program. The grant program established and authorized by this section is administered by the vice chancellor for
administration. Moneys appropriated or otherwise available for
such purpose the grant program shall be allocated by line item to
an appropriate account. Any moneys remaining in the fund at the
close of a fiscal year shall be carried forward for use in the next
fiscal year.
(b) As used in this section, the following terms have the
meanings ascribed to them:
(1) "Approved distance education" means a course of study
offered via electronic access that has been approved for inclusion
in the applicant's program of study by the eligible institution of
higher education at which the applicant is enrolled or has been
accepted for enrollment;
(2) "Part-time" means enrollment for not less than six
three nor more than eleven semester or term hours: Provided, That
for no more than two semesters during the recipient's ten years of
eligibility, the recipient may be considered to be enrolled
part-time if he or she is enrolled for three or more semester or
term hours: Provided, however, That in the case of enrollment in
post-secondary certificate, industry-recognized credential and
other skill development programs in demand occupations in this
state, "part-time" means enrollment on such basis as is established
for the program in which enrolled;
(3) "Satisfactory academic progress" means maintaining a
cumulative grade point average of at least 2.0 on a 4.0 grading
scale with a goal of obtaining a certificate, associate degree or
bachelor's degree. In the case of post-secondary certificate,
industry-recognized credential and other skill development
programs, satisfactory academic progress means continuous
advancement toward completion of the program on the normal schedule
established for the program in which enrolled;
(4) "Eligible institution" means:
(A) Any community college; community and technical college;
adult technical preparatory education program or training;
(B) Any state college or university, as those terms are
defined in section two, article one, chapter eighteen-b of this
code;
(C) Any approved institution of higher education as that term
is defined in section two of this article; and
(D) Any approved distance education, including world wide web-
based courses;
(5) "Eligible program or programs" or "eligible course or
courses" means, in addition to programs and courses offered by
eligible institutions as defined in subdivision (4) of this
subsection:
(A) Programs and courses offered by any nationally accredited degree-granting institution of higher learning permitted pursuant
to section five, article three, chapter eighteen-b of this code and
approved by the joint commission for vocational-technical-
occupational education; and
(B) Any post-secondary certificate, industry-recognized
credential and other skill development programs of study as defined
in this section in a demand occupation in this state;
(6) "State resident" means a student who has lived in West
Virginia continuously for a minimum of twelve months immediately
preceding the date of application for a HEAPS grant or renewal of
a grant;
(7) "Post-secondary certificate program" means an organized
program of study, approved by the joint commission for vocational-
technical-occupational education, with defined competencies or
skill sets that may be offered for credit or noncredit and which
culminates in the awarding of a certificate: Provided, That post-
secondary certificate programs offered by eligible institutions as
defined in subdivision (4) of this subsection do not require the
approval of the joint commission for vocational-technical-
occupational education;
(8) "Demand occupation" means any occupation having documented
verification from employers that job opportunities in that
occupation are currently available or are projected to be available within a year within the state or regions of the state. The joint
commission for vocational-technical-occupational education shall
prepare and update annually a list of occupations that they
determine meet the requirements of this definition;
(9) "Industry-recognized credential program" means an
organized program that meets nationally recognized standards in a
particular industry, is approved by the joint commission for
vocational-technical-occupational education and which culminates in
the awarding of a certification or other credential commonly
recognized in that industry: Provided, That industry-recognized
credential programs offered by eligible institutions as defined in
subdivision (4) of this subsection do not require the approval of
the joint commission for vocational-technical-occupational
education; and
(10) "Skill development program" means a structured sequence
or set of courses, approved by the joint commission for vocational-
technical-occupational education, with defined competencies that
are designed to meet the specific skill requirements of an
occupation and which culminates in the awarding of a certificate of
completion that specifically lists the competencies or skills
mastered: Provided, That skill development programs offered by
eligible institutions as defined in subdivision (4) of this
subsection do not require the approval of the joint commission.
(c) A person is eligible for consideration for a HEAPS grant
if the person:
(1) Demonstrates that he or she has applied for, accepted, or
both, other student financial assistance in compliance with federal
financial aid rules, including the federal Pell grant;
(2) Qualifies as an independent student according to current
federal financial aid criteria, unless the person is enrolling in
a post-secondary certificate, industry-recognized credential or
other skill development program in a demand occupation in the state
and has graduated from high school within the past two years;
(3) Demonstrates financial need for funds, as defined by
legislative rule;
(4) Has not been enrolled in a high school diploma program,
other than general education development (GED), for at least the
two preceding years, unless the person applies the grant toward the
cost of enrolling in a post-secondary certificate, industry-
recognized credential or other skill development program of study
in a demand occupation in this state;
(5) Is a state resident and may not be considered a resident
of any other state;
(6) Is a United States citizen or permanent resident thereof;
(7) Is not incarcerated in a correctional facility;
(8) Is not in default on a higher education loan; and
(9) Is enrolled in a program of study at less than the
graduate level on a part-time basis in an eligible institution or
program of study and is making satisfactory academic progress at
the time of application: Provided, That the requirement that the
student be making satisfactory academic progress may not preclude
a HEAPS grant award to a student who has been accepted for
enrollment in an eligible institution or program of study but has
not yet been enrolled.
(d) Each HEAPS grant award is eligible for renewal until the
course of study is completed, but not to exceed an additional nine
years beyond the first year of the award.
(e) The higher education policy commission shall propose a
legislative rule pursuant to article three-a, chapter twenty-nine-a
of this code to implement the provisions of this section which
shall be filed with the legislative oversight commission on
education accountability by the first day of September, two
thousand one three. The Legislature hereby declares that an
emergency situation exists and, therefore, the policy commission
may establish, by emergency rule, under the procedures of article
three-a, chapter twenty-nine-a of this code, a rule to implement
the provisions of this section, after approval by the legislative
oversight commission on education accountability.
(f) The legislative rule shall provide at least the following:
(1) That consideration of financial need, as required by
subdivision (3), subsection (c) of this section, include the
following factors:
(A) Whether the applicant has dependents as defined by federal
law;
(B) Whether the applicant has any personal hardship as
determined at the discretion of the vice chancellor for
administration; and
(C) Whether the applicant will receive any other source of
student financial aid during the award period;
(2) That an appropriate allocation process be provided for
distribution of funds directly to the eligible institutions or
programs based on the part-time enrollment figures of the prior
year;
(3) That not less than twenty-five percent of the funds
appropriated in any one fiscal year be used to make grants to
students enrolled in post-secondary certificate, industry-
recognized credential and other skill development programs of
study: Provided, That after giving written notice to the
legislative oversight commission on education accountability, the
vice chancellor for administration may allocate less than twenty-
five percent of the funds for such grants;
(4) That ten percent of the funds appropriated in any one fiscal year shall be granted to state community and technical
colleges by the council for community and technical college
education in accordance with a process specified in the rule for
noncredit and customized training programs which further the
economic development goals of the state, help meet the training and
skill upgrade needs of employers in the state and for which funds
are not available from other sources;
_____(4) (5) That any funds not expended by an eligible institution
or program at the end of each fiscal year shall be returned to the
vice chancellor for administration for distribution under the
provisions of this section; and
(6) That grants under this section shall be available for
approved distance education throughout the calendar year, subject
only to the availability of funds; and
_____(5) (7) That the amount of each HEAPS grant award be
determined using the following guidelines:
(A) The amount of any HEAPS grant awarded to a student per
semester, term hour or program for those students who are enrolled
in eligible institutions or programs operated under the
jurisdiction of an agency of the state or a political subdivision
thereof shall be based upon the following:
(i) Actual cost of tuition and fees;
(ii) The portion of the costs determined to be appropriate by the commission; and
(iii) In addition to factors in subparagraphs (i) and (ii) of
this paragraph, in determining the amount of the award, the vice
chancellor may consider the demand for the program pursuant to
subdivision (8), subsection (b) of this section; and
(B) The amount of any HEAPS grant awarded to a student who is
enrolled in any other eligible institution, program or course shall
be no greater than the average amount for comparable programs or
courses as determined pursuant to the provisions of paragraph (A)
of this subdivision.
(g) The vice chancellor for administration shall report
annually, by the first day of December, on the status of the HEAPS
grant program to the legislative oversight commission on education
accountability.
(h) The HEAPS grant program is subject to any provision of
this article not inconsistent with the provisions of this section.
The following amendments to the Education committee amendment
to the bill (Eng. Com. Sub. for H. B. No. 2051), from the Committee
on Finance, were reported by the Clerk, considered simultaneously,
and adopted:
On page five, section seven, subsection (c), by striking out
all of the subdivision (2);
And renumbering the remaining subdivisions;
On page five, section seven, subsection (c), by striking out
all of subdivision (4);
And,
By renumbering the remaining subdivisions.
The question now being on the adoption of the Education
committee amendment to the bill, as amended, the same was put and
prevailed.
The bill (Eng. Com. Sub. for H. B. No. 2051), 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.
2051) 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. 2051) passed.
The following amendment to the title of the bill, from the
Committee on Education, 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. 2051--A Bill to amend and
reenact section seven, article five, chapter eighteen-c of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
relating to reducing the semester or term hours required for
eligibility; requiring rule provisions to provide for set aside and
distribution of funds for certain noncredit and customized training
programs; and requiring rule provisions on grant availability for
approved distance education.
Senator Chafin moved that the bill take effect July 1, 2003.
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. 2051) takes effect July 1, 2003.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2675, Mandating insurance
coverage for certain clinical trials for ordinary costs of covered
services.
With amendments from the Committee on Banking and Insurance
pending;
And has also amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 6, 2003;
And reports the same back with the recommendation that it do
pass as last amended by the Committee on Finance.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 2675) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration and read a second time.
The following amendment to the bill, from the Committee on
Finance, was reported by the Clerk and adopted:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That article sixteen, chapter five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto two new sections, designated sections
seven-d and seven-e; that article sixteen-b of said chapter be
amended by adding thereto two new sections, designated sections
six-a and six-b; that article two, chapter nine of said code be
amended by adding thereto two new sections, designated sections
twelve and twelve-a; that article fifteen, chapter thirty-three of
said code be amended by adding thereto a new section, designated section four-h; that article sixteen of said chapter be amended by
adding thereto a new section, designated section three-q; that
article twenty-four of said chapter be amended by adding thereto a
new section, designated section four-a; that section six, article
twenty-five of said chapter be amended and reenacted; that article
twenty-five-a of said chapter be amended by adding thereto a new
section, designated section twenty-four-a; and that said chapter be
further amended by adding thereto a new article, designated article
twenty-five-f, all to read as follows:
CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR,
SECRETARY OF STATE AND ATTORNEY GENERAL;
BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES,
COMMISSIONS, OFFICES, PROGRAMS, ETC.
ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.
§5-16-7d. Coverage for patient cost of clinical trials.
(a) The provisions of this section and section seven-e of this
article apply to the health plans regulated by this article.
(b) This section does not apply to a policy, plan or contract
paid for under Title XVIII of the Social Security Act.
(c) A policy, plan or contract subject to this section shall
provide coverage for patient cost to a member in a clinical trial
as a result of:
(1) Treatment provided for a life-threatening condition; or
(2) Prevention of, early detection of or treatment studies on
cancer.
(d) The coverage under subsection (c) of this section is
required if:
(1) (A) The treatment is being provided or the studies are
being conducted in a Phase II, III or IV clinical trial for cancer
and has therapeutic intent; or
(B) The treatment is being provided in a Phase II, III or IV
clinical trial for any other life-threatening condition and has
therapeutic intent;
(2) The treatment is being provided in a clinical trial
approved by:
(A) One of the national institutes of health;
(B) An NIH cooperative group or an NIH center;
(C) The FDA in the form of an investigational new drug
application or investigational device exemption;
(D) The federal department of veterans affairs; or
(E) An institutional review board of an institution in the
state which has a multiple project assurance contract approved by
the office of protection from research risks of the national
institutes of health;
(3) The facility and personnel providing the treatment are
capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;
(4) There is no clearly superior, noninvestigational treatment
alternative;
(5) The available clinical or preclinical data provide a
reasonable expectation that the treatment will be more effective
than the noninvestigational treatment alternative;
(6) The treatment is provided in this state: Provided, That,
if the treatment is provided outside of this state, the treatment
must be approved by the payor designated in subsection (a) of this
section;
(7) Reimbursement for treatment is subject to all coinsurance,
copayment and deductibles and is otherwise subject to all
restrictions and obligations of the health plan; and
(8) Reimbursement for treatment by an out of network or
noncontracting provider shall be reimbursed at a rate which is no
greater than that provided by an in network or contracting
provider. Coverage shall not be required if the out of network or
noncontracting provider will not accept this level of
reimbursement.
(e) Payment for patient costs for a clinical trial is not
required by the provisions of this section if:
(1) The purpose of the clinical trial is designed to extend
the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug or to gain approval or coverage
relating to additional clinical indications for an existing drug;
or
(2) The purpose of the clinical trial is designed to keep a
generic version of a drug from becoming available on the market; or
(3) The purpose of the clinical trial is to gain approval of
or coverage for a reformulated or repackaged version of an existing
drug.
(f) Any provider billing a third-party payor for services or
products provided to a patient in a clinical trial shall provide
written notice to the payor that specifically identifies the
services as part of a clinical trial.
(g) Notwithstanding any provision in this section to the
contrary, coverage is not required for Phase I of any clinical
trial.
§5-16-7e. Definitions.
For purposes of section seven-d of this article:
(a) A "clinical trial" is a study that determines whether new
drugs, treatments or medical procedures are safe and effective on
humans. To determine the efficacy of experimental drugs,
treatments or procedures, a study is conducted in four phases,
including the following:
Phase II: The experimental drug or treatment is given to, or a procedure is performed on, a larger group of people to further
measure its effectiveness and safety.
Phase III: Further research is conducted to confirm the
effectiveness of the drug, treatment or procedure, to monitor the
side effects, to compare commonly used treatments and to collect
information on safe use.
Phase IV: After the drug, treatment or medical procedure is
marketed, investigators continue testing to determine the effects
on various populations and to determine whether there are side
effects associated with long-term use.
(b) "Cooperative group" means a formal network of facilities
that collaborate on research projects and have an established
NIH-approved peer review program operating within the group.
(c) "Cooperative group" includes:
(1) The national cancer institute clinical cooperative group;
(2) The national cancer institute community clinical oncology
program;
(3) The AIDS clinical trial group; and
(4) The community programs for clinical research in AIDS.
(d) "FDA" means the federal food and drug administration.
(e) "Life-threatening condition" means that the member has a
terminal condition or illness that according to current diagnosis
has a high probability of death within two years, even with treatment with an existing generally accepted treatment protocol.
(f) "Member" means a policyholder, subscriber, insured,
certificate holder or a covered dependent of a policyholder,
subscriber, insured or certificate holder.
(g) "Multiple project assurance contract" means a contract
between an institution and the federal department of health and
human services that defines the relationship of the institution to
the federal department of health and human services and sets out
the responsibilities of the institution and the procedures that
will be used by the institution to protect human subjects.
(h) "NIH" means the national institutes of health.
(i) "Patient cost" means the routine costs of a medically
necessary health care service that is incurred by a member as a
result of the treatment being provided pursuant to the protocols of
the clinical trial. Routine costs of a clinical trial include all
items or services that are otherwise generally available to
beneficiaries of the insurance policies. "Patient cost" does not
include:
(1) The cost of the investigational drug or device;
(2) The cost of nonhealth care services that a patient may be
required to receive as a result of the treatment being provided to
the member for purposes of the clinical trial;
(3) Services customarily provided by the research sponsor free of charge for any participant in the trial;
(4) Costs associated with managing the research associated
with the clinical trial, including, but not limited to, services
furnished to satisfy data collection and analysis needs that are
not used in the direct clinical management of the participant; or
(5) Costs that would not be covered under the participant's
policy, plan or contract for noninvestigational treatments;
(6) Adverse events during treatment are divided into those
that reflect the natural history of the disease, or its
progression, and those that are unique in the experimental
treatment. Costs for the former are the responsibility of the
payor as provided in section two of this article, and costs for the
later are the responsibility of the sponsor. The sponsor shall
hold harmless any payor for any losses and injuries sustained by
any member as a result of his or her participation in the clinical
trial.
ARTICLE 16B. WEST VIRGINIA CHILDREN'S HEALTH PROGRAM.
§5-16B-6a. Coverage for patient cost of clinical trials.
(a) The provisions of this section and section six-b of this
article apply to the health plans regulated by this article.
(b) This section does not apply to a policy, plan or contract
paid for under Title XVIII of the Social Security Act.
(c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial
as a result of:
(1) Treatment provided for a life-threatening condition; or
(2) Prevention of, early detection of or treatment studies on
cancer.
(d) The coverage under subsection (c) of this section is
required if:
(1) (A) The treatment is being provided or the studies are
being conducted in a Phase II, III or IV clinical trial for cancer
and has therapeutic intent; or
(B) The treatment is being provided in a Phase II, III or IV
clinical trial for any other life-threatening condition and has
therapeutic intent;
(2) The treatment is being provided in a clinical trial
approved by:
(A) One of the national institutes of health;
(B) An NIH cooperative group or an NIH center;
(C) The FDA in the form of an investigational new drug
application or investigational device exemption;
(D) The federal department of veterans affairs; or
(E) An institutional review board of an institution in the
state which has a multiple project assurance contract approved by
the office of protection from research risks of the national institutes of health;
(3) The facility and personnel providing the treatment are
capable of doing so by virtue of their experience, training and
volume of patients treated to maintain expertise;
(4) There is no clearly superior, noninvestigational treatment
alternative;
(5) The available clinical or preclinical data provide a
reasonable expectation that the treatment will be more effective
than the noninvestigational treatment alternative;
(6) The treatment is provided in this state: Provided, That,
if the treatment is provided outside of this state, the treatment
must be approved by the payor designated in subsection (a) of this
section;
(7) Reimbursement for treatment is subject to all coinsurance,
copayment and deductibles and is otherwise subject to all
restrictions and obligations of the health plan; and
(8) Reimbursement for treatment by an out of network or
noncontracting provider shall be reimbursed at a rate which is no
greater than that provided by an in network or contracting
provider. Coverage shall not be required if the out of network or
noncontracting provider will not accept this level of
reimbursement.
(e) Payment for patient costs for a clinical trial is not required by the provisions of this section if:
(1) The purpose of the clinical trial is designed to extend
the patent of any existing drug, to gain approval or coverage of a
metabolite of an existing drug or to gain approval or coverage
relating to additional clinical indications for an existing drug;
or
(2) The purpose of the clinical trial is designed to keep a
generic version of a drug from becoming available on the market; or
(3) The purpose of the clinical trial is to gain approval of
or coverage for a reformulated or repackaged version of an existing
drug.
(f) Any provider billing a third-party payor for services or
products provided to a patient in a clinical trial shall provide
written notice to the payor that specifically identifies the
services as part of a clinical trial.
(g) Notwithstanding any provision in this section to the
contrary, coverage is not required for Phase I of any clinical
trial.
§5-16B-6b. Definitions.
For purposes of section six-a of this article:
(a) A "clinical trial" is a study that determines whether new
drugs, treatments or medical procedures are safe and effective on
humans. To determine the efficacy of experimental drugs, treatments or procedures, a study is conducted in four phases,
including the following:
Phase II: The experimental drug or treatment is given to, or
a procedure is performed on, a larger group of people to further
measure its effectiveness and safety.
Phase III: Further research is conducted to confirm the
effectiveness of the drug, treatment or procedure, to monitor the
side effects, to compare commonly used treatments and to collect
information on safe use.
Phase IV: After the drug, treatment or medical procedure is
marketed, investigators continue testing to determine the effects
on various populations and to determine whether there are side
effects associated with long-term use.
(b) "Cooperative group" means a formal network of facilities
that collaborate on research projects and have an established
NIH-approved peer review program operating within the group.
(c) "Cooperative group" includes:
(1) The national cancer institute clinical cooperative group;
(2) The national cancer institute community clinical oncology
program;
(3) The AIDS clinical trial group; and
(4) The community programs for clinical research in AIDS.
(d) "FDA" means the federal food and drug administration.
(e) "Life-threatening condition" means that the member has a
terminal condition or illness that according to current diagnosis
has a high probability of death within two years, even with
treatment with an existing generally accepted treatment protocol.
(f) "Member" means a policyholder, subscriber, insured,
certificate holder or a covered dependent of a policyholder,
subscriber, insured or certificate holder.
(g) "Multiple project assurance contract" means a contract
between an institution and the federal department of health and
human services that defines the relationship of the institution to
the federal department of health and human services and sets out
the responsibilities of the institution and the procedures that
will be used by the institution to protect human subjects.
(h) "NIH" means the national institutes of health.
(i) "Patient cost" means the routine costs of a medically
necessary health care service that is incurred by a member as a
result of the treatment being provided pursuant to the protocols of
the clinical trial. Routine costs of a clinical trial include all
items or services that are otherwise generally available to
beneficiaries of the insurance policies. "Patient cost" does not
include:
(1) The cost of the investigational drug or device;
(2) The cost of nonhealth care services that a patient may be required to receive as a result of the treatment being provided to
the member for purposes of the clinical trial;
(3) Services customarily provided by the research sponsor free
of charge for any participant in the trial;
(4) Costs associated with managing the research associated
with the clinical trial, including, but not limited to, services
furnished to satisfy data collection and analysis needs that are
not used in the direct clinical management of the participant; or
(5) Costs that would not be covered under the participant's
policy, plan or contract for noninvestigational treatments;
(6) Adverse events during treatment are divided into those
that reflect the natural history of the disease, or its
progression, and those that are unique in the experimental
treatment. Costs for the former are the responsibility of the
payor as provided in section two of this article, and costs for the
later are the responsibility of the sponsor. The sponsor shall
hold harmless any payor for any losses and injuries sustained by
any member as a result of his or her participation in the clinical
trial.
CHAPTER 9. HUMAN SERVICES.
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE OF
COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND
RESPONSIBILITIES GENERALLY.
§9-2-12. Coverage for patient cost of clinical trials.
(a) The provisions of this section and section twelve-a of
this article apply to the health plans regulated by this article.
(b) This section does not apply to a policy, plan or contract
paid for under Title XVIII of the Social Security Act.
(c) A policy, plan or contract subject to this section shall
provide coverage for patient cost to a member in a clinical trial
as a result of:
(1) Treatment provided for a life-threatening condition; or
(2) Prevention of, early detection of or treatment studies on
cancer.
(d) The coverage under subsection (c) of this section is
required if:
(1) (A) The treatment is being provided or the studies are
being conducted in a Phase II, III or IV clinical trial for cancer
and has therapeutic intent; or
(B) The treatment is being provided in a Phase II, III or IV
clinical trial for any other life-threatening condition and has
therapeutic intent;
(2) The treatment is being provided in a clinical trial
approved by:
(A) One of the national institutes of health;
(B) An NIH cooperative group or an NIH center;
(C) The FDA in the form of an investigational new drug
application or investigational device exemption;
(D) The federal department of veterans affairs; or
(E) An institutional review board of an institution in the
state which has a multiple project assurance contract approved by
the office of protection from research risks of the national
institutes of health;
(3) The facility and personnel providing the treatment are
capable of doing so by virtue of their experience, training and
volume of patients treated to maintain expertise;
(4) There is no clearly superior, noninvestigational treatment
alternative;
(5) The available clinical or preclinical data provide a
reasonable expectation that the treatment will be more effective
than the noninvestigational treatment alternative;
(6) The treatment is provided in this state: Provided, That,
if the treatment is provided outside of this state, the treatment
must be approved by the payor designated in subsection (a) of this
section;
(7) Reimbursement for treatment is subject to all coinsurance,
copayment and deductibles and is otherwise subject to all
restrictions and obligations of the health plan; and
(8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no
greater than that provided by an in network or contracting
provider. Coverage shall not be required if the out of network or
noncontracting provider will not accept this level of
reimbursement.
(e) Payment for patient costs for a clinical trial is not
required by the provisions of this section if:
(1) The purpose of the clinical trial is designed to extend
the patent of any existing drug, to gain approval or coverage of a
metabolite of an existing drug or to gain approval or coverage
relating to additional clinical indications for an existing drug;
or
(2) The purpose of the clinical trial is designed to keep a
generic version of a drug from becoming available on the market; or
(3) The purpose of the clinical trial is to gain approval of
or coverage for a reformulated or repackaged version of an existing
drug.
(f) Any provider billing a third-party payor for services or
products provided to a patient in a clinical trial shall provide
written notice to the payor that specifically identifies the
services as part of a clinical trial.
(g) Notwithstanding any provision in this section to the
contrary, coverage is not required for Phase I of any clinical trial.
§9-2-12a. Definitions.
For purposes of section twelve of this article:
(a) A "clinical trial" is a study that determines whether new
drugs, treatments or medical procedures are safe and effective on
humans. To determine the efficacy of experimental drugs,
treatments or procedures, a study is conducted in four phases,
including the following:
Phase II: The experimental drug or treatment is given to, or
a procedure is performed on, a larger group of people to further
measure its effectiveness and safety.
Phase III: Further research is conducted to confirm the
effectiveness of the drug, treatment or procedure, to monitor the
side effects, to compare commonly used treatments and to collect
information on safe use.
Phase IV: After the drug, treatment or medical procedure is
marketed, investigators continue testing to determine the effects
on various populations and to determine whether there are side
effects associated with long-term use.
(b) "Cooperative group" means a formal network of facilities
that collaborate on research projects and have an established
NIH-approved peer review program operating within the group.
(c) "Cooperative group" includes:
(1) The national cancer institute clinical cooperative group;
(2) The national cancer institute community clinical oncology
program;
(3) The AIDS clinical trial group; and
(4) The community programs for clinical research in AIDS.
(d) "FDA" means the federal food and drug administration.
(e) "Life-threatening condition" means that the member has a
terminal condition or illness that according to current diagnosis
has a high probability of death within two years, even with
treatment with an existing generally accepted treatment protocol.
(f) "Member" means a policyholder, subscriber, insured,
certificate holder or a covered dependent of a policyholder,
subscriber, insured or certificate holder.
(g) "Multiple project assurance contract" means a contract
between an institution and the federal department of health and
human services that defines the relationship of the institution to
the federal department of health and human services and sets out
the responsibilities of the institution and the procedures that
will be used by the institution to protect human subjects.
(h) "NIH" means the national institutes of health.
(i) "Patient cost" means the routine costs of a medically
necessary health care service that is incurred by a member as a
result of the treatment being provided pursuant to the protocols of the clinical trial. Routine costs of a clinical trial include all
items or services that are otherwise generally available to
beneficiaries of the insurance policies. "Patient cost" does not
include:
(1) The cost of the investigational drug or device;
(2) The cost of nonhealth care services that a patient may be
required to receive as a result of the treatment being provided to
the member for purposes of the clinical trial;
(3) Services customarily provided by the research sponsor free
of charge for any participant in the trial;
(4) Costs associated with managing the research associated
with the clinical trial, including, but not limited to, services
furnished to satisfy data collection and analysis needs that are
not used in the direct clinical management of the participant; or
(5) Costs that would not be covered under the participant's
policy, plan or contract for noninvestigational treatments;
(6) Adverse events during treatment are divided into those
that reflect the natural history of the disease, or its
progression, and those that are unique in the experimental
treatment. Costs for the former are the responsibility of the
payor as provided in section two of this article, and costs for the
later are the responsibility of the sponsor. The sponsor shall
hold harmless any payor for any losses and injuries sustained by any member as a result of his or her participation in the clinical
trial.
CHAPTER 33. INSURANCE.
ARTICLE 15. ACCIDENT AND SICKNESS INSURANCE.
§33-15-4h. Coverage for patient cost of clinical trials.
The provisions relating to clinical trials established in
article twenty-five-f of this chapter shall apply to the individual
market regulated by this article.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3q. Coverage for patient cost of clinical trials.
The provisions relating to clinical trials established in
article twenty-five-f of this chapter shall apply to the health
benefit plans regulated by this article.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE
CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE
CORPORATIONS.
§33-24-4a. Coverage for patient cost of clinical trials.
The provisions relating to clinical trials established in
article twenty-five-f of this chapter shall apply to the insurance
regulated by this article.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6. Supervision and regulation by insurance commissioner;
exemption from insurance laws.
Corporations organized under this article are subject to
supervision and regulation of the insurance commissioner. The
corporations organized under this article, to the same extent these
provisions are applicable to insurers transacting similar kinds of
insurance and not inconsistent with the provisions of this article,
shall be governed by and be subject to the provisions as
hereinbelow indicated of the following articles of this chapter:
Article four (general provisions), except that section sixteen of
said article shall not be applicable thereto; article six-c
(guaranteed loss ratio); article seven (assets and liabilities);
article eight (investments); article ten (rehabilitation and
liquidation); section two-a, article fifteen (definitions); section
two-b, article fifteen (guaranteed issue); section two-d, article
fifteen (exception to guaranteed renewability); section two-e,
article fifteen (discontinuation of coverage); section two-f,
article fifteen (certification of creditable coverage); section
two-g, article fifteen (applicability); section four-e, article
fifteen (benefits for mothers and newborns); section fourteen,
article fifteen (individual accident and sickness insurance);
section sixteen, article fifteen (coverage of children); section
eighteen, article fifteen (equal treatment of state agency);
section nineteen, article fifteen (coordination of benefits with
medicaid); article fifteen-c (diabetes insurance); section three, article sixteen (required policy provisions); section three-a,
article sixteen (mental health); section three-j, article sixteen
(benefits for mothers and newborns); section three-k, article
sixteen (preexisting condition exclusions); section three-l,
article sixteen (guaranteed renewability); section three-m, article
sixteen (creditable coverage); section three-n, article sixteen
(eligibility for enrollment); section eleven, article sixteen
(coverage of children); section thirteen, article sixteen (equal
treatment of state agency); section fourteen, article sixteen
(coordination of benefits with medicaid); section sixteen, article
sixteen (diabetes insurance); article sixteen-a (group health
insurance conversion); article sixteen-c (small employer group
policies); article sixteen-d (marketing and rate practices for
small employers); article twenty-five-f (coverage for patient cost
of clinical trials); article twenty-six-a (West Virginia life and
health insurance guaranty association act); article twenty-seven
(insurance holding company systems); article thirty-three (annual
audited financial report); article thirty-four-a (standards and
commissioner's authority for companies deemed to be in hazardous
financial condition); article thirty-five (criminal sanctions for
failure to report impairment); article thirty-seven (managing
general agents); and article forty-one (privileges and immunity);
and no other provision of this chapter may apply to these corporations unless specifically made applicable by the provisions
of this article.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24a. Coverage for patient cost of clinical trials.
The provisions relating to clinical trials established in
article twenty-five-f of this chapter shall apply to the insurance
regulated by this article.
ARTICLE 25F. COVERAGE FOR PATIENT COST OF CLINICAL TRIALS.
§33-25F-1. Definitions.
For purposes of this article:
(a) A "clinical trial" is a study that determines whether new
drugs, treatments or medical procedures are safe and effective on
humans. To determine the efficacy of experimental drugs,
treatments or procedures, a study is conducted in four phases,
including the following:
Phase II: The experimental drug or treatment is given to, or
a procedure is performed on, a larger group of people to further
measure its effectiveness and safety.
Phase III: Further research is conducted to confirm the
effectiveness of the drug, treatment or procedure, to monitor the
side effects, to compare commonly used treatments and to collect
information on safe use.
Phase IV: After the drug, treatment or medical procedure is marketed, investigators continue testing to determine the effects
on various populations and to determine whether there are side
effects associated with long-term use.
(b) "Cooperative group" means a formal network of facilities
that collaborate on research projects and have an established
NIH-approved peer review program operating within the group.
(c) "Cooperative group" includes:
(1) The national cancer institute clinical cooperative group;
(2) The national cancer institute community clinical oncology
program;
(3) The AIDS clinical trial group; and
(4) The community programs for clinical research in AIDS.
(d) "FDA" means the federal food and drug administration.
(e) "Life-threatening condition" means that the member has a
terminal condition or illness that according to current diagnosis
has a high probability of death within two years, even with
treatment with an existing generally accepted treatment protocol.
(f) "Member" means a policyholder, subscriber, insured,
certificate holder or a covered dependent of a policyholder,
subscriber, insured or certificate holder.
(g) "Multiple project assurance contract" means a contract
between an institution and the federal department of health and
human services that defines the relationship of the institution to the federal department of health and human services and sets out
the responsibilities of the institution and the procedures that
will be used by the institution to protect human subjects.
(h) "NIH" means the national institutes of health.
(i) "Patient cost" means the routine costs of a medically
necessary health care service that is incurred by a member as a
result of the treatment being provided pursuant to the protocols of
the clinical trial. Routine costs of a clinical trial include all
items or services that are otherwise generally available to
beneficiaries of the insurance policies. "Patient cost" does not
include:
(1) The cost of the investigational drug or device;
(2) The cost of nonhealth care services that a patient may be
required to receive as a result of the treatment being provided to
the member for purposes of the clinical trial;
(3) Services customarily provided by the research sponsor free
of charge for any participant in the trial;
(4) Costs associated with managing the research associated
with the clinical trial, including, but not limited to, services
furnished to satisfy data collection and analysis needs that are
not used in the direct clinical management of the participant; or
(5) Costs that would not be covered under the participant's
policy, plan or contract for noninvestigational treatments;
(6) Adverse events during treatment are divided into those
that reflect the natural history of the disease, or its
progression, and those that are unique in the experimental
treatment. Costs for the former are the responsibility of the
payor as provided in section two of this article, and costs for the
later are the responsibility of the sponsor. The sponsor shall
hold harmless any payor for any losses and injuries sustained by
any member as a result of his or her participation in the clinical
trial.
§33-25F-2. Coverage applicable under this article.
(a) This section applies to:
(1) Insurers and nonprofit health service plans that provide
hospital, medical, surgical or pharmaceutical benefits to
individuals or groups on an expense-incurred basis under a health
insurance policy or contract issued or delivered in the state; and
(2) Health maintenance organizations that provide hospital,
medical, surgical or pharmaceutical benefits to individuals or
groups under contracts that are issued or delivered in the state.
(b) This section does not apply to a policy, plan or contract
paid for under Title XVIII of the Social Security Act.
(c) A policy, plan or contract subject to this section shall
provide coverage for patient cost to a member in a clinical trial
as a result of:
(1) Treatment provided for a life-threatening condition; or
(2) Prevention of, early detection of or treatment studies on
cancer.
(d) The coverage under subsection (c) of this section is
required if:
(1) (A) The treatment is being provided or the studies are
being conducted in a Phase II, III or IV clinical trial for cancer
and has therapeutic intent; or
(B) The treatment is being provided in a Phase II, III or IV
clinical trial for any other life-threatening condition and has
therapeutic intent;
(2) The treatment is being provided in a clinical trial
approved by:
(A) One of the national institutes of health;
(B) An NIH cooperative group or an NIH center;
(C) The FDA in the form of an investigational new drug
application or investigational device exemption;
(D) The federal department of veterans affairs; or
(E) An institutional review board of an institution in the
state which has a multiple project assurance contract approved by
the office of protection from research risks of the national
institutes of health;
(3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and
volume of patients treated to maintain expertise;
(4) There is no clearly superior, noninvestigational treatment
alternative;
(5) The available clinical or preclinical data provide a
reasonable expectation that the treatment will be more effective
than the noninvestigational treatment alternative;
(6) The treatment is provided in this state: Provided, That,
if the treatment is provided outside of this state, the treatment
must be approved by the payor designated in subsection (a) of this
section;
(7) Reimbursement for treatment is subject to all coinsurance,
copayment and deductibles and is otherwise subject to all
restrictions and obligations of the health plan; and
(8) Reimbursement for treatment by an out of network or
noncontracting provider shall be reimbursed at a rate which is no
greater than that provided by an in network or contracting
provider. Coverage shall not be required if the out of network or
noncontracting provider will not accept this level of
reimbursement.
(e) Payment for patient costs for a clinical trial is not
required by the provisions of this section if:
(1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a
metabolite of an existing drug or to gain approval or coverage
relating to additional clinical indications for an existing drug;
or
(2) The purpose of the clinical trial is designed to keep a
generic version of a drug from becoming available on the market; or
(3) The purpose of the clinical trial is to gain approval of
or coverage for a reformulated or repackaged version of an existing
drug.
(f) Any provider billing a third-party payor for services or
products provided to a patient in a clinical trial shall provide
written notice to the payor that specifically identifies the
services as part of a clinical trial.
(g) Notwithstanding any provision in this section to the
contrary, coverage is not required for Phase I of any clinical
trial.
The bill (Eng. Com. Sub. for H. B. No. 2675), 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.
2675) 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. 2675) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Senate Bill No. 52, Eliminating certain bond on
out-of-state defendants in automobile accident cases.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 384, Repealing section relating to
location of offices of alcohol beverage control administration.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Senate Bill No. 400, Allowing insurance commissioner to
disclose confidential information in certain cases.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 404, Establishing blue and
gray intermodal highway authority.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the passage, to take effect from
passage, of
Eng. Com. Sub. for Senate Bill No. 405, Changing personal care
homes to assisted living residences; extending board.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 443, Establishing economic and
infrastructure projects under development office guidelines.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 50, Requesting Joint
Committee on Government and Finance study hospital overtime
policies.
A message from The Clerk of the House of Delegates announced
the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 60, Suspending Joint Rule No.
3b relating to time limit on conference committee reports.
The Senate again proceeded to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2921, Providing an exemption for sales and
services provided by licensed mortgage brokers from the consumer
sales and service tax.
With amendments from the Committee on Banking and Insurance
pending;
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 4, 2003;
And reports the same back with the recommendation that it do
pass as amended by the Committee on Banking and Insurance to which
the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2921) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendment to the bill, from the Committee on
Banking and Insurance, was reported by the Clerk:
On page two, by striking out everything after the article
heading and inserting in lieu thereof the following:
§11-15-9h. Exemption for brokerage fees received by licensed
mortgage brokers and lobbyists fees.
Fees for services described in subdivision (5), section one,
article seventeen, chapter thirty-one of this code provided by a
broker licensed pursuant to the provisions of said article and fees
for services described in subdivision (6), section one, article
three, chapter six-b of said code provided by a lobbyist as defined
in subdivision (7) of said section are exempt from the tax imposed
by this article.
The question being on the adoption of the Banking and
Insurance committee amendment to the bill, and on this question
Senator Rowe demanded the yeas and nays.
To which demand, Senator Facemyer objected.
Thereafter, Senator Rowe's demand was sustained.
The roll being taken, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning,
Helmick, Kessler, Love, McKenzie, Minard, Minear, Plymale,
Prezioso, Ross, Sharpe, Smith, Snyder and Tomblin (Mr.
President)--22.
The nays were: Boley, Guills, Harrison, Hunter, Jenkins,
McCabe, Oliverio, Rowe, Sprouse, Unger, Weeks and White--12.
Absent: None.
So, a majority of those present and voting having voted in the
affirmative, the President declared the Banking and Insurance
committee amendment to the bill (Eng. H. B. No. 2921) adopted.
The bill, as amended, was then ordered to third reading.
Senator Chafin moved that the constitutional rule requiring a
bill to be read on three separate days be suspended.
The roll being taken, the yeas were: Bailey, Bowman,
Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills,
Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear,
Oliverio, Plymale, Prezioso, Ross, Sharpe, Smith, Snyder, Sprouse and Tomblin (Mr. President)--27.
The nays were: Boley, Harrison, Hunter, Rowe, Unger, Weeks
and White--7.
Absent: None.
So, less than four fifths of the members present and voting
having voted in the affirmative, the President declared the motion
to suspend the constitutional rule rejected.
Therefore, the bill remains on third reading.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2953, Establishing a mechanism to
eliminate any actuarially projected unfunded liability in the
Prepaid Tuition Trust Fund.
And has amended same.
Now on second reading, having been read a first time and
rereferred to the Committee on Finance on March 6, 2003;
And reports the same back with the recommendation that it do
pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 2953) contained in the preceding
report from the Committee on Finance was taken up for immediate
consideration and read a second time.
The following amendments to the bill, from the Committee on
Finance, were reported by the Clerk, considered simultaneously, and
adopted:
On pages four and five, section six, by striking out all of
subsections (g) and (h) and inserting in lieu thereof two new
subsections, designated subsections (g) and (h), to read as
follows:
(g) Effective the eighth day of March, two thousand three, the
prepaid tuition plan is closed to new contracts until the
Legislature authorizes the plan to reopen. Closing the plan to new
contracts shall not mean the prepaid tuition plan is closed and
shall not affect any prepaid tuition plan contracts in effect on
the eighth day of March, two thousand three. All contract owners
shall continue to pay any amounts due, including, without
limitation, monthly installments, penalties and fees. Earnings
derived from the investment of moneys in the prepaid tuition trust
fund shall continue to accrue to the fund until the fund is closed
in accordance with this article.
(h) The board shall continue to have the actuarial soundness
of the prepaid tuition trust fund evaluated annually.;
On page five, section six, line sixty-two, after the word
"Delegates" by inserting a comma and the words "joint committee on
government and finance";
On page six, section six, line seventy-one, by striking out
the word "following" and inserting in lieu thereof the word "next";
On page six, section six, line eighty-one, after the word
"treasury" by inserting the words "to guarantee payment of prepaid
tuition plan contracts";
On page seven, section six, line ninety, by striking out the
words "two million" and inserting in lieu thereof the words "five
hundred thousand";
On page seven, section six, line ninety-five, by striking out
the words "two million" and inserting in lieu thereof the words
"five hundred thousand";
And,
On page eleven, section thirteen, line thirty-seven, by
striking out the words "two million" and inserting in lieu thereof
the words "five hundred thousand".
The bill (Eng. H. B. No. 2953), 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. 2953) 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. 2953) 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. H.
B. No. 2953) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2972, Improving the
actuarial soundness of municipal police and fire pensions.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2972) contained in
the preceding report from the Committee on Finance 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, 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.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No.
2972) 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. 2972) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2983, Relating to the teachers' retirement
system.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2983) contained in the preceding
report from the Committee on Finance 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, 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.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 2983) 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. 2983) 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. H.
B. No. 2983) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Helmick, from the Committee on Finance, submitted the
following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2984, Increasing the amount of service
credit a teacher off work due to a compensable injury may purchase.
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. H. B. No. 2984) contained in the preceding
report from the Committee on Finance 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, 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.
The bill was read a second time and ordered to third reading.
Having been engrossed, the bill (Eng. H. B. No. 2984) 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. 2984) 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. H.
B. No. 2984) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 3109, Bringing the
provisions of the teachers defined contribution retirement system
in conformity with those of the teachers retirement system.
Now on second reading, having been read a first time and
referred to the Committee on Finance on March 6, 2003;
And reports the same back with the recommendation that it do
pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being
granted, the bill (Eng. Com. Sub. for H. B. No. 3109) contained in
the preceding report from the Committee on Finance was taken up for
immediate consideration, 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.
3109) 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. 3109) 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. 3109) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
On motion of Senator Sharpe, the Senate recessed for five
minutes.
Upon expiration of the recess, the Senate reconvened and, at
the request of Senator Chafin, and by unanimous consent, returned
to the second order of business and the introduction of guests.
The Senate again proceeded to the sixth order of business,
which agenda includes the making of main motions.
On motion of Senator Chafin, the Senate requested the return
from the House of Delegates of
Eng. Com. Sub. for House Bill No. 2675, Mandating insurance
coverage for certain clinical trials for ordinary costs of covered
services.
Passed by the Senate in earlier proceedings today,
The bill still being in the possession of the Senate.
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. Com. Sub. for House Bill No. 2675--A Bill to amend
article sixteen, chapter five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding thereto two
new sections, designated sections seven-d and seven-e; to amend
article sixteen-b of said chapter by adding thereto two new
sections, designated sections six-a and six-b; to amend article
two, chapter nine of said code by adding thereto two new sections,
designated sections twelve and twelve-a; to amend article fifteen,
chapter thirty-three of said code by adding thereto a new section,
designated section four-h; to amend article sixteen of said chapter
by adding thereto a new section, designated section three-q; to
amend article twenty-four of said chapter by adding thereto a new
section, designated section four-a; to amend and reenact section
six, article twenty-five of said chapter; to amend article twenty-
five-a of said chapter by adding thereto a new section, designated
section twenty-four-a; and to further amend said chapter by adding
thereto a new article, designated article twenty-five-f, all
relating to mandating coverage for certain clinical trials under public employees insurance, children's health program, medicaid
program, accident and sickness insurance, group accident and
sickness insurance, hospital service corporations, medical service
corporations, dental service corporations, health service
corporations, health care corporations and health maintenance
organizations.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Without objection, the Senate returned to the third order of
business.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 206, Authorizing aides to
supervise students in in-school suspensions; limitation.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
clause
and inserting in lieu thereof the following:
That section one, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-1. Commencement and termination of compulsory school
attendance; exemptions.
(a) Compulsory school attendance shall begin with the school
year in which the sixth birthday is reached prior to the first day
of September of such year or upon enrolling in a publicly supported
kindergarten program and continue to the sixteenth birthday.
Exemption from the foregoing requirements of compulsory public
school attendance shall be made on behalf of any child for the
following causes or conditions set forth in this section. Each
each such cause or condition being set forth in this section shall
be subject to confirmation by the attendance authority of the
county.
Exemption A. Instruction in a private, parochial or other
approved school. --
(b) Such A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to instruction in
a private, parochial or other approved school, are met. The
instruction shall be in a school approved by the county board of
education and for a time equal to the school instructional term of the county for the year set forth in section forty-five, article
five of this chapter. In all such private, parochial or other
schools approved pursuant to this subsection it shall be the duty
of the principal or other person in control, upon the request of
the county superintendent, of schools to furnish to the county
board of education such information and records as may be required
with respect to attendance, instruction and progress of pupils
enrolled between the entrance age and sixteen years.
Exemption B. Instruction in home or other approved place. --
(a) (c) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of either subdivision (1) or (2) of this
subsection, both relating to home instruction, are met.
_____(1) Such The instruction shall be in the home of such the
child or children or at some other place approved by the county
board of education and for a time equal to the school instructional
term of the county set forth in section forty-five, article five of
this chapter. If such the request for home instruction is denied
by the county board, of education good and reasonable justification
for such the denial must shall be furnished in writing to the
applicant by the county board. of education. The instruction in
such cases shall be conducted by a person or persons who, in the
judgment of the county superintendent and county board, of education are qualified to give instruction in subjects required to
be taught in the free public elementary schools of in the state.
It shall be the duty of the The person or persons providing the
instruction, upon request of the county superintendent, to shall
furnish to the county board of education such information and
records as may be required, from time to time, with respect to
attendance, instruction and progress of pupils enrolled between the
entrance age and sixteen years receiving such the instruction. The
state department of education board shall develop guidelines for
the home schooling of special education students including
alternative assessment measures to assure that satisfactory
academic progress is achieved.
(b) (2) Notwithstanding the provisions of subsection (a) of
this Exemption B, the person or persons providing home instruction
meet the requirements for Exemption B when the conditions of this
subsection are met The child meets the requirements set forth in
this subdivision: Provided, That the county superintendent shall
have the right to may seek from the circuit court of the county an
order denying the home instruction of the child. The which order
may be granted upon a showing of clear and convincing evidence that
the child will suffer educational neglect in the child's education
or that there are other compelling reasons to deny home
instruction.
(2) (A) The Annually, the person or persons providing home
instruction present to the county superintendent or county board of
education a notice of intent to provide home instruction and the
name, and address, age and grade level of any child of compulsory
school age to be instructed: Provided, That if a child is enrolled
in a public school, notice of intent to provide home instruction
shall be given at least two weeks prior to withdrawing such child
from public school;
(2) (B) The person or persons providing home instruction
submit satisfactory evidence of (i) a high school diploma or
equivalent; and (ii) formal education at least four years higher
than the most academically advanced child for whom the instruction
will be provided Provided, That the requirement of a formal
education at least four years higher than the most academically
advanced child is waived until the first day of July, two thousand
three;
(3) (C) The person or persons providing home instruction
outline a plan of instruction for the ensuing school year; and
(4) (D) The On or before the thirtieth day of June of each
year the person or persons providing home instruction shall
annually obtain an academic assessment of the child for the
previous school year This and submit the results to the county
superintendent. When the academic assessment takes place outside of a public school, the parent or legal guardian shall pay the
cost. The requirement of an academic assessment shall be satisfied
in one of the following ways:
(i) Any child receiving home instruction annually takes a
standardized test, to be administered at a public school in the
county where the child resides, or administered by a licensed
psychologist or other person authorized by the publisher of the
test, or administered by a person authorized by the county
superintendent or county board of education. The child shall be
administered a test which has been normed by the test publisher on
that child's age or grade group. In no event may the child's
parent or legal guardian administer the test. Where a test is
administered outside of a public school, the child's parent or
legal guardian shall pay the cost of administering the test. The
public school or other qualified person shall administer to
children of compulsory school age the comprehensive test of basic
skills, the California achievement test, the Stanford achievement
test or the Iowa tests of basic skills, achievement and
proficiency, or an individual standardized achievement test that is
nationally normed and provides statistical results which test will
be selected by the public school, or other person administering the
test, in the subjects of language, reading, social studies, science
and mathematics and shall be administered under standardized conditions as set forth by the published instructions of the
selected test. No test shall be administered if the publication
date is more than ten years from the date of the administration of
the test. Each child's test results shall be reported as a
national percentile for each of the five subjects tested. Each
child's test results shall be made available on or before the
thirtieth day of June of the school year in which the test is to be
administered to the person or persons providing home instruction,
the child's parent or legal guardian and the county superintendent.
Upon request of a duly authorized representative of the West
Virginia department of education, each child's test results shall
be furnished by the person or persons providing home instruction,
or by the child's parent or legal guardian, to the state
superintendent of schools. Upon notification that the mean of the
child's test results for any single year has fallen below the
fortieth percentile, the county board of education shall notify the
parents or legal guardian of said child, in writing, of the
services available to assist in the assessment of the child's
eligibility for special education services: Provided, That the
identification of a disability shall not preclude the continuation
of home schooling.
If the mean of the child's test results for any single year
for language, reading, social studies, science and mathematics fall below the fortieth percentile on the selected tests, then the
person or persons providing home instruction shall initiate a
remedial program to foster achievement above that level and the
student shall show improvement. If, after two calendar years, the
mean of the child's test results fall below the fortieth percentile
level, home instruction shall no longer satisfy the compulsory
school attendance requirement exemption; or
(ii) The county superintendent is provided with a written
narrative indicating that a portfolio of samples of the child's
work has been reviewed and that the child's academic progress for
the year is in accordance with the child's abilities. This
narrative shall be prepared by a certified teacher or other person
mutually agreed upon by the parent or legal guardian and the county
superintendent. It shall be submitted on or before the thirtieth
day of June of the school year covered by the portfolio. The
parent or legal guardian shall be responsible for payment of fees
charged for the narrative; or
(iii) Evidence of an alternative academic assessment of the
child's proficiency mutually agreed upon by the parent or legal
guardian and the county superintendent is submitted to the county
superintendent by the thirtieth day of June of the school year
being assessed. The parent or legal guardian shall be responsible
for payment of fees charged for the assessment.
(i) The child receiving home instruction takes a nationally
normed standardized achievement test to be administered under
standardized conditions as set forth by the published instructions
of the selected test in the subjects of reading, language,
mathematics, science and social studies: Provided, That in no
event may the child's parent or legal guardian administer the test.
The publication date of the chosen test shall not be more than ten
years from the date of the administration of the test. The child
shall be considered to have made acceptable progress when the mean
of the child's test results in the required subject areas for any
single year meets or exceeds the fiftieth percentile or, if below
the fiftieth percentile, shows improvement from the previous year's
results;
_____(ii) The child participates in the testing program currently
in use in the state's public schools. The test shall be
administered to the child at a public school in the county of
residence. Determination of acceptable progress will be based on
current guidelines of the state testing program;
_____(iii) The county superintendent is provided with a written
narrative indicating that a portfolio of samples of the child's
work has been reviewed and that the child's academic progress for
the year is in accordance with the child's abilities. If the
narrative indicates that the child's academic progress for the year is in accordance with the child's abilities, the child shall be
considered to have made acceptable progress. This narrative shall
be prepared by a certified teacher whose certification number shall
be provided. The narrative shall include a statement about the
child's progress in the areas of reading, language, mathematics,
science and social studies and shall note any areas which, in the
professional opinion of the reviewer, show need for improvement or
remediation; or
_____(iv) The child completes an alternative academic assessment of
proficiency that is mutually agreed upon by the parent or legal
guardian and the county superintendent. Criteria for acceptable
progress shall be mutually agreed upon by the same parties; and
_____(E) When the annual assessment fails to show acceptable
progress as defined under the appropriate assessment option set
forth in paragraph (D) of this subdivision, the person or persons
providing home instruction shall initiate a remedial program to
foster acceptable progress and the county board shall notify the
parents or legal guardian of the child, in writing, of the services
available to assist in the assessment of the child's eligibility
for special education services: Provided, That the identification
of a disability shall not preclude the continuation of home
schooling. In the event that the child does not achieve acceptable
progress as defined under the appropriate assessment option set forth in said paragraph for a second consecutive year, the person
or persons providing instruction shall submit to the county
superintendent additional evidence that appropriate instruction is
being provided.
_____(c) (3) This subdivision applies to both home instruction
exemptions set forth in subdivisions (1) and (2) of this
subsection. The county superintendent or a designee shall offer
such assistance, including textbooks, other teaching materials and
available resources, as may assist the person or persons providing
home instruction subject to their availability. Any child
receiving home instruction may, upon approval of the county board,
of education exercise the option to attend any class offered by the
county board of education as the person or persons providing home
instruction may deem consider appropriate subject to normal
registration and attendance requirements.
Exemption C. Physical or mental incapacity. --
(d) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to physical or
mental incapacity, are met. Physical or mental incapacity shall
consist consists of incapacity for school attendance and the
performance of school work. In all cases of prolonged absence from
school due to incapacity of the child to attend, the written statement of a licensed physician or authorized school nurse shall
be required under the provisions of this article: Provided, That
in all cases, incapacity shall be narrowly defined and in no case
shall the provisions of this article allow for the exclusion of the
mentally, physically, emotionally or behaviorally handicapped child
otherwise entitled to a free appropriate education.
Exemption D. Residence more than two miles from school or
school bus route. -The distance of residence from a school, or
school bus route providing free transportation, shall be reckoned
by the shortest practicable road or path, which contemplates travel
through fields by right of permission from the landholders or their
agents. It shall be the duty of the county board, of education,
subject to written consent of landholders, or their agents, to
provide and maintain safe foot bridges across streams off the
public highways where such are required for the safety and welfare
of pupils whose mode of travel from home to school or to school bus
route must necessarily be other than along the public highway in
order for said road or path to be not over two miles from home to
school or to school bus providing free transportation;
Exemption E. Hazardous conditions. --
(e) Conditions A child shall be exempt from the compulsory
school attendance requirement set forth in subsection (a) of this
section if conditions rendering school attendance impossible or hazardous to the life, health or safety of the child exist.
Exemption F. High school graduation. --
(f) Such exemption shall consist of A child shall be exempt
from the compulsory school attendance requirement set forth in
subsection (a) of this section upon regular graduation from a
standard senior high school.
Exemption G. Granting work permits. --
(g) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the child is granted a work permit pursuant to this subsection.
The county superintendent may, after due investigation, grant work
permits to youths under sixteen years of age, subject to state and
federal labor laws and regulations: Provided, That a work permit
may not be granted on behalf of any youth who has not completed the
eighth grade of school.
Exemption H. Serious illness or death in the immediate family
of the pupil. --
(h) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if a serious illness or death in the immediate family of the pupil
has occurred. It is expected that the county attendance director
will ascertain the facts in all cases of such absences about which
information is inadequate and report same the facts to the county superintendent. of schools;
Exemption I. Destitution in the home. --
(i) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to destitution in
the home, are met. Exemption based on a condition of extreme
destitution in the home may be granted only upon the written
recommendation of the county attendance director to the county
superintendent following careful investigation of the case. A copy
of the report confirming such the condition and school exemption
shall be placed with the county director of public assistance.
This enactment contemplates every reasonable effort that may
properly be taken on the part of both school and public assistance
authorities for the relief of home conditions officially recognized
as being so destitute as to deprive children of the privilege of
school attendance. Exemption for this cause shall not be allowed
when such the destitution is relieved through public or private
means.
Exemption J. Church ordinances; observances of regular church
ordinances. --
(j) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to church ordinances and observances of regular church ordinances, are met.
The county board of education may approve exemption for religious
instruction upon written request of the person having legal or
actual charge of a child or children: Provided, That such the
exemption shall be subject to the rules prescribed by the county
superintendent and approved by the county board. of education;
Exemption K. Alternative private, parochial, church or
religious school instruction. --
(k) A child shall be exempt from the compulsory school
attendance requirement set forth in subsection (a) of this section
if the requirements of this subsection, relating to alternative
private, parochial, church or religious school instruction, are
met. In lieu of the provisions of Exemption A herein above,
exemption Exemption shall be made for any child attending any
private school, parochial school, church school, school operated by
a religious order or other nonpublic school which elects to comply
with the provisions of article twenty-eight chapter eighteen of the
code of West Virginia of this chapter.
(l) The completion of the eighth grade shall not exempt any
child under sixteen years of age from the compulsory attendance
provision of this article. Provided, That there is a public high
school or other public school of advanced grades or a school bus
providing free transportation to any such school, the route of which is within two miles of the child's home by the shortest
practicable route or path as hereinbefore specified under Exemption
D of this section.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 206--A Bill
to amend and
reenact section one, article eight, chapter eighteen of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
relating to compulsory school attendance; technical amendments;
home school exemption; amending requirements to qualify for home
school exemption; amending assessment requirements of home school
exemption; and eliminating exemption relating to residence more
than two miles from school or school bus route.
At the request of Senator Chafin, unanimous consent being
granted, further consideration of the message on the bill was
deferred until the conclusion of House messages now lodged with the
Clerk.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 340, Permitting county commissions to establish different building requirements in
floodplain for insurance purposes.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections three-i and three-v, article one, chapter seven
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3i. County commission may cooperate with other governmental
units.
(a) Any county commission may join together in the exercise of
any of its powers, duties and responsibilities, or otherwise
cooperate with any other county or counties, municipality or
municipalities, the government of this state or of the United
States in carrying out any lawful purpose not in conflict with the
constitution of West Virginia: Provided, That the county
commission of any county sharing a common border with any other
state is hereby empowered to enter into reciprocal agreements with
governmental subdivisions or agencies of such other state for the protection of people and property from fire and for emergency
medical services and for the reciprocal use of county equipment and
personnel for such purpose.
(b) Before a municipality may hold an election pursuant to
section two, article six, chapter eight of this code, the county
commission must approve the plan for annexation: Provided, That
this requirement does not apply when the area to be annexed is
exclusively residential. A county commission may hold a public
hearing on any petition for annexation filed by any governing body
within the county to determine the impact on the provision of
public services, including utilities, maintenance, police
protection and response to fire and flood.
§7-1-3v. Floodplain and mudslide area management; legislative
findings; power and authority; enforcement; provisions
cumulative.
(a) The Legislature hereby finds and declares that it is
imperative that municipalities and counties in this state be fully
authorized and empowered to take all action necessary to comply
with the requirements of the National Flood Insurance Act of 1968
(Public Law 91-152) as amended by the Congress of the United States
through the fifteenth day of February, one thousand nine hundred
seventy-five; that municipalities presently are vested with all
statutory power and authority necessary in this regard; and that the purpose of this section is to authorize and empower the several
counties of this state to comply with such these requirements.
(b) As used in this section:
(1) "Act" means the National Flood Insurance Act of 1968
(Public Law 91-152) as amended by the Congress of the United
States; through the fifteenth day of February, one thousand nine
hundred seventy-five; and
(2) "Specified area or areas" means the area or areas
specified under such that act as a floodplain or mudslide area or
areas within which control over construction and improvements must
be exercised in order to comply with such that act.
(c) To the extent and only to the extent necessary to comply
with or exceed the eligibility requirements of and otherwise fully
and in all respects to comply with the requirements of such that
act, the county commission of each county is hereby authorized and
empowered to may:
_____(i) (1) Adopt, administer and enforce building codes for a
specified area or areas within such the county, which building
codes may establish different requirements for different specified
areas;
(2) Coordinate efforts with the insurance services office of
the national flood insurance program to develop floodplain
management plans and to improve its rating under the community rating system, including, but not limited to, improving its
building code effectiveness grading schedule, to reduce flood
insurance rates;
_____(ii) require (3) Require and issue building permits for all
proposed construction or other improvements in such the county:
Provided, That nothing contained in this subdivision (ii) shall
authorize a county commission to refuse to issue a building permit
for any proposed construction or other improvement outside of a
specified area or areas within such the county;
(iii) conduct (4) Conduct inspections of construction and
other improvements in a specified area or areas within such the
county; and
(iv) otherwise take such (5) Take action and impose such
requirements regarding land use and control measures in a specified
area or areas within such the county as shall be is necessary under
such that act: Provided, That no such building code adopted by a
county commission shall apply within nor any authority herein above
granted in this section shall be exercised by a county commission
within the corporate limits of any municipality which has taken
appropriate action to comply with such that act unless and until
such the municipality so provides by ordinance.
(d) Any such building code adopted by a county commission and
any other requirements imposed by a county commission under the provisions of this subsection (c) of this section may be enforced
by injunctive action in the circuit court of the county.
(d) (e) The power and authority conferred upon county
commissions in this section is supplemental to and not in
derogation of any power and authority heretofore or hereafter
conferred by law upon county commissions.
;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 340--A Bill
to amend and
reenact sections three-i and three-v, article one, chapter seven of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to the authority of county commissions;
providing for public hearings; requiring approval of annexation
plans before election may be held; and permitting
county
commissions to adopt building codes, develop floodplain management
plans and take other protective measures to reduce flood insurance
rates.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. Com. Sub. for S.
B. No. 340) and requested the House of Delegates to recede
therefrom.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the
Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 522, Authorizing county
boards of education to lease school property no longer needed.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendment to the bill was
reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That sections one-a and seven, article five, chapter eighteen
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-1a. Eligibility of members; training requirements.
(a) No person shall be eligible for membership on any county
board who is not a citizen, resident in such county, or who accepts
a position as teacher or service personnel in the school district
in which he or she is a resident or who is an elected or an
appointed member of any political party executive committee, or who becomes a candidate for any other office than to succeed oneself.
(b) No member or member-elect of any board shall be eligible
for nomination, election or appointment to any public office, other
than to succeed oneself, or for election or appointment as a member
of any political party executive committee, unless and until after
that membership on the board, or his status as member-elect to the
board, has been terminated at or before the time of his filing for
such nomination for, or appointment to, such public office or
committee: Provided, That "office" or "committee", as used in this
subsection and subsection (a) of this section, does not include
service on any board, elected or appointed, profit or nonprofit,
for which the person does not receive compensation and whose
primary scope is not related to the public schools.
_____(c) A member or member-elect of a county board, or a person
desiring to become a member of a county board, may make a written
request to the West Virginia ethics commission for an advisory
opinion on whether another elected or appointed position held or
sought by the person is an office or public office which would bar
serving on the board pursuant to subsections (a) and (b) of this
section. Within thirty days of receipt of the request, the ethics
commission shall issue a written advisory opinion in response to
the request and shall also publish such opinion in a manner which
to the fullest extent possible does not reveal the identity of the person making the request. Any county board member who relied in
good faith upon an advisory opinion issued by the West Virginia
ethics commission that holding a particular office or public office
is not a bar from membership on a county board of education and
against whom proceedings are subsequently brought for removal from
the county board on the basis of holding such office or offices
shall be entitled to reimbursement by the county board for
reasonable attorney's fees and court costs incurred by the member
in defending against such proceedings, regardless of the outcome
the proceedings. Further, no vote cast by the member at a meeting
of the board shall be invalidated due to a subsequent finding that
holding the particular office or public office is a bar to
membership on the county board. Good faith reliance on a written
advisory opinion of the West Virginia ethics commission that a
particular office or public office is not a bar to membership on a
county board of education is an absolute defense to any civil suit
or criminal prosecution arising from any proper action taken within
the scope of membership on the board, becoming a member-elect of
the board or seeking election to the board.
_____(d) Any person who is elected or appointed to a county board
on or after the fifth day of May, one thousand nine hundred ninety-
two, shall possess at least a high school diploma or a general
educational development (GED) diploma: Provided, That this provision shall not apply to members or members-elect who have
taken office prior to the fifth day of May, one thousand nine
hundred ninety-two, and who serve continuously therefrom.
(e) No person elected to a county board after the first day of
July, one thousand nine hundred ninety, shall assume the duties of
board member unless he or she has first attended and completed a
course of orientation relating to boardsmanship and governance
effectiveness which shall be given between the date of election and
the beginning of the member's term of office: Provided, That a
portion or portions of subsequent training such as that offered in
orientation may be provided to members after they have commenced
their term of office: Provided, however, That attendance at the
session of orientation given between the date of election and the
beginning of the member's term of office shall permit such member
or members to assume the duties of board member, as specified in
this section. Members appointed to the board shall attend and
complete the next such course offered following their appointment:
Provided further, That the provisions of this section relating to
orientation shall not apply to members who have taken office prior
to the first day of July, one thousand nine hundred eighty-eight,
and who serve continuously therefrom.
(f) Commencing on the effective date of this section, members
shall annually receive seven clock hours of training in areas relating to boardsmanship, governance effectiveness and school
performance issues including, but not limited to, pertinent state
and federal statutes such as the "Process for Improving Education"
set forth in section five, article two-e of this chapter and the
"No Child Left Behind Act" and their respective administrative
rules. Such orientation and training shall be approved by the
state board and conducted by the West Virginia school board
association or other organization or organizations approved by the
state board: Provided, That the state board may exclude time spent
in training on school performance issues from the requisite seven
hours herein required: Provided, however, That if the state board
elects to exclude time spent in training on school performance
issues from the requisite seven hours, such training shall be
limited by the state board to a feasible and practicable amount of
time. Failure to attend and complete such an approved course of
orientation and training relating to boardsmanship and governance
effectiveness without good cause as determined by legislative rules
of the state board shall constitute neglect of duty.
(g) In the final year of any four-year term of office, a
member shall satisfy the annual training requirement before the
first day of January. The state board shall petition the circuit
court of Kanawha County to remove any county board member who has
failed to or who refuses to attend and complete the approved course of orientation and training. If the county board member fails to
show good cause for not attending the approved course of
orientation and training, the court shall remove the member from
office.
§18-5-7. Sale of school property at public auction; rights of
grantor of lands in rural communities; oil and gas leases;
disposition of proceeds; lease of school property.
(a) If Except as set forth in subsection (b) of this section,
if at any time the a county board shall ascertain determines that
any building or any land is no longer shall be needed for school
purposes, the county board may sell, dismantle, remove or relocate
any such buildings the building and sell the land on which they are
it is located, at public auction, after proper notice and on such
terms as it orders, to the highest responsible bidder.
_____(b) But Notwithstanding the provisions of subsection (a) of
this section, in rural communities, the grantor of the lands or his
or her heirs or assigns shall have has the right to purchase at the
sale, the land, exclusive of the buildings thereon on the land and
the mineral rights, at the same price for which it was originally
sold: Provided, That the sale to the board was not a voluntary
arms length transaction for valuable consideration approximating
the fair market value of the property at the time of such the sale
to the board: Provided, however, That the provisions of this section shall may not operate to invalidate any provision of the
deed to the contrary.
(c) The county board, by the same method prescribed set forth
in subsection (a) of this section for the sale of school buildings
and lands, may, also in lieu of offering the property for sale,
enter into a lease for oil or gas or other minerals any lands or
school sites owned in fee by it. The proceeds of such the sales
and rentals shall be placed to the credit of such the fund or funds
of the district as the county board may direct. And provided
further, That the
(d) The county board may make any sale of property subject to
the provisions provision that all liability for hazards associated
with the premises are to be assumed by the purchaser. and In
any sale by the county board of improved property in which the
actual consideration is less than ten thousand dollars or in any
sale of unimproved property in which the actual consideration is
less than one thousand dollars, the county board shall make any
sale of property subject to the provisions provision that all
liability for hazards associated with the premises are to be
assumed by the purchaser. The county board shall inform any
prospective purchaser of known or suspected hazards associated with
the property.
(e) Except as provided by the provisions of subsection (b) of this section, where a county board determines that any school
property is no longer needed for school purposes, the county board
may, upon determining that it will serve the best interests of the
school system and the community, offer the property for lease. The
procedure set forth in subsection (a) of this section relating to
sale of school buildings and lands shall apply to leasing the
school property. Any lease authorized by the provisions of this
subsection shall be in writing. The writing shall include a
recitation of all known or reasonably suspected hazards associated
with the property, an assumption by the lessee of all liability
related to all hazards, whether disclosed or not, and provisions
wherein the lessee assumes all liability for any actions arising
from the property during the term of the lease. Provided further,
That
(f) Notwithstanding any provision of this section to the
contrary, the provisions of this section concerning sale or lease
at public auction shall may not apply to a county board boards of
education selling, leasing or otherwise disposing of its property
for a public use to the state of West Virginia, or its political
subdivisions, including county commissions, or divisions thereof
for an adequate consideration without considering alone the present
commercial or market value of the property.;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 522--A Bill
to amend and
reenact sections one-a and seven, article five, chapter eighteen of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, all relating to
removing service on certain boards in
certain circumstances from limitation on service on county boards;
providing for certain advisory opinions by ethics commission and
specifying effect of reliance upon them by board members, members-
elect and persons seeking office; specifying additional training
for board members and options for crediting time; and
authorizing
a county board of education to lease school property that is no
longer needed.
On motion of Senator Plymale, the following amendments to the
House of Delegates amendments to the bill (Eng. Com. Sub. for S. B.
No. 522) were reported by the Clerk, considered simultaneously, and
adopted:
On page one, after the enacting section, by inserting the
following:
ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR
EDUCATION.
§18-1-1. Definitions.
The following words used in this chapter and in any proceedings pursuant thereto shall, unless the context clearly
indicates a different meaning, be construed as follows:
(a) "School" means the pupils and teacher or teachers
assembled in one or more buildings, organized as a unit;
(b) "District" means county school district;
(c) "State board" means the West Virginia board of education;
(d) "Board" "County board" or "board" means the county board
of education;
(e) "State superintendent" means the state superintendent of
free schools;
(f) "Superintendent" "County superintendent" or
"superintendent" means the county superintendent of schools;
(g) "Teacher" means teacher, supervisor, principal,
superintendent or public school librarian; registered professional
nurse, licensed by the West Virginia board of examiners for
registered professional nurses and employed by a county board of
education, who has a baccalaureate degree; or any other person
regularly employed for instructional purposes in a public school in
this state;
(h) "Service personnel" means all nonteaching school employees
not included in the above definition of "teacher";
(i) "Social worker" means a nonteaching school employee who,
at a minimum, possesses an undergraduate degree in social work from an accredited institution of higher learning and who provides
various professional social work services, activities or methods as
defined by the state board for the benefit of students;
(j) "Regular full-time employee" means any person employed by
a county board of education who has a regular position or job
throughout his or her employment term, without regard to hours or
method of pay;
(k) "Career clusters" means broad groupings of related
occupations;
(l) "Work-based learning" means a structured activity that
correlates with and is mutually supportive of the school-based
learning of the student and includes specific objectives to be
learned by the student as a result of the activity;
(m) "School-age juvenile" means any individual who is entitled
to attend or who, if not placed in a residential facility, would be
entitled to attend public schools in accordance with: (1) Section
five, article two of this chapter; (2) sections fifteen and
eighteen, article five of this chapter; or (3) section one, article
twenty of this chapter;
(n) "Student with a disability" means an exceptional child,
other than gifted, pursuant to section one, article twenty of this
chapter;
(o) "Low-density county" means a county whose ratio of student population to square miles is less than or equal to the state
average ratio as computed by the state department of education;
(p) "High-density county" means a county whose ratio of
student population to square miles is greater than the state
average ratio as computed by the state department of education; and
(q) "Casual deficit" means a deficit of not more than three
percent of the approved levy estimate or a deficit that is
nonrecurring from year to year.
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-4. Organization; appointment, compensation and duties of
secretary.
At its first regular meeting in every year the state board
shall elect one of its members as president, who shall not succeed
himself as president may serve an unlimited number of terms, but no
more than two consecutive terms, and one as vice president of the
board. The state superintendent shall be the chief executive
officer of the state board and, subject to its direction, shall
execute its policies.
The state board shall appoint a secretary and fix his the
secretary's salary to be paid out of the general school fund upon
warrants drawn by the state superintendent. The secretary shall
keep a record of the proceedings of the state board and shall
perform such other duties as it may prescribe.
§18-2-5g. Duty to receive and submit summary of policy
modifications and annual reports.
In addition to filing each policy as required by section
fourteen, article five of this chapter, the state board shall
require each county board to provide a summary of any modifications
to the policies and copies of annual reports developed pursuant to
said section. The state board shall submit copies of these
summaries of modifications to the policies and annual reports,
together with any comments and recommendations, to the legislative
oversight commission on education accountability no later than the
thirty-first day of December of each year.
ARTICLE 2E. HIGH-QUALITY EDUCATIONAL PROGRAMS.
§18-2E-7. Providing for high-quality basic skills development and
remediation in all public schools.
(a) The Legislature finds that teachers must be provided the
support, assistance and teaching tools necessary to meet individual
student instructional needs on a daily basis in a classroom of
students who differ in learning styles, learning rates and in
motivation to learn. The Legislature further finds that attaining
a solid foundation in the basic skills of reading, composition and
arithmetic is essential for advancement in higher education,
occupational and avocational pursuits and that computers are an
effective tool for the teacher in corrective, remedial and enrichment activities. Therefore, the state board shall develop a
plan which specifies the resources to be used to provide services
to students in the earliest grade level and moving upward as
resources become available based on a plan developed by each
individual school team.
This plan must provide for standardization of computer
hardware and software, and for technology upgrade and replacement,
for the purposes of achieving economies of scale, facilitating
teacher training, permitting the comparison of achievement of
students in schools and counties utilizing the hardware and
software, and facilitating the repair of equipment and ensuring
appropriate utilization of the hardware and software purchased for
remediation and basic skills development.
The state board shall determine the computer hardware and
software specifications after input from practicing teachers at the
appropriate grade levels and with the assistance of education
computer experts and the curriculum technology resource center.
Computer hardware and software shall be purchased either
directly or through a lease-purchase arrangement pursuant to the
provisions of article three, chapter five-a of this code in the
amount equal to anticipated revenues being appropriated: Provided,
That, with the approval of the state board, the revenues
appropriated may be expended directly or through contractual agreements with county boards and regional education service
agencies for materials and other costs associated with
installation, setup, internet hookup and wiring of the computer
hardware and software: Provided, however, That nothing in this
section shall be construed to require any specific level of funding
by the Legislature.
The state board shall develop and provide through the state
curriculum technology resource center a program to ensure adequate
teacher training, continuous teacher support and updates.
To the extent practicable, such technology shall be utilized
to enhance student access to learning tools and resources outside
of the normal school day, such as: Before and after school; in the
evenings, on weekends and during vacations; and for student use for
homework, remedial work, independent learning and career planning
and adult basic education.
(b) The Legislature finds that the continued implementation of
computer utilization under this section for high-quality basic
skills development and remediation in the middle schools, junior
high schools and high schools is necessary to meet the goal that
high school graduates will be prepared fully for college, other
post-secondary education or gainful employment. Further, such
implementation should provide a technology infrastructure at the
middle schools, junior high schools and high schools that has multiple applications in enabling students to achieve at higher
academic levels. The technology infrastructure should facilitate
student development in the following areas:
(1) Attaining basic computer skills such as word processing,
spreadsheets, data bases, internet usage, telecommunications and
graphic presentations;
(2) Learning critical thinking and decision-making skills;
(3) Applying academic knowledge in real life situations
through simulated workplace programs;
(4) Understanding the modern workplace environment,
particularly in remote areas of the state, by bringing the
workplace to the school;
(5) Making informed career decisions based upon information on
labor markets and the skills required for success in various
occupations;
(6) Gaining access to labor markets and job placement;
(7) Obtaining information and assistance about college and
other post-secondary education opportunities and financial aid; and
(8) Other uses for acquiring the necessary skills and
information to make a smooth transition from high school to
college, other post-secondary education or gainful employment.
Therefore, the state board shall extend the plan as set forth
in subsection (a) of this section, and consistent with the terms and conditions in said subsection, to address the findings of this
subsection regarding the continued implementation of computer
hardware and software and technical planning support in the middle
schools, junior high schools and high schools of the state.
ARTICLE 3. STATE SUPERINTENDENT OF SCHOOLS.
§18-3-1. Appointment; qualifications; compensation; traveling
expenses; office and residence; evaluation.
There shall be appointed by the state board a state
superintendent of schools who shall serve at the will and pleasure
of the state board. He or she shall be a person of good moral
character, of recognized ability as a school administrator, holding
at least a master's degree in educational administration, and shall
have had not less than five years of experience in public school
work. He or she shall receive an annual salary set by the state
board to be paid monthly: Provided, That the annual salary may not
exceed one hundred forty-six thousand one hundred dollars. The
state superintendent shall also shall receive necessary traveling
expenses incident to the performance of his or her duties the
traveling expenses to be paid out of the general school fund upon
warrants of the state auditor. The state superintendent shall have
his or her office at the state capital capitol. The state board
shall report to the legislative oversight commission on education
accountability upon request concerning its progress during any hiring process for a state superintendent.
The state board annually shall evaluate the performance of the
state superintendent and publicly announce the results of the
evaluation.
ARTICLE 4. COUNTY SUPERINTENDENT OF SCHOOLS.
§18-4-1. Election and term; interim superintendent.
(a) The county superintendent shall be elected appointed by
the board upon a majority vote of the members thereof to serve for
a term of not less than one, nor more than four years. At the
expiration of the term or terms for which he or she shall have been
elected appointed, each county superintendent shall be eligible for
reelection reappointment for additional terms of not less than one,
nor more than four years: Provided, That at the expiration of his
or her term or terms of service he shall be given the status of
teacher in the system the county superintendent may transfer to any
teaching position in the county for which he or she is qualified
and has seniority, unless dismissed for statutory reasons. Such
election shall be held The appointment of the county superintendent
shall be made on or before the first day of May and the persons so
elected shall take office June for a term beginning on the first
day of July following the appointment.
(b) A county superintendent who fills a vacancy caused by an
incomplete term shall be appointed to serve until the following first day of July: Provided, however, That the board may appoint
an interim county superintendent to serve for a period not to
exceed one hundred twenty days from the occurrence of the vacancy.
(c) The president of the county board, immediately upon the
election appointment of the county superintendent, or the
appointment of an interim county superintendent, shall certify the
election or appointment to the state superintendent. of schools.
(d) During his or her term of appointment, the county
superintendent shall be a resident of the county, or of a
contiguous county in this state, which he or she serves. The
county superintendent in office on the effective date of this
section shall continue in office until the expiration of his or her
term.
§18-4-2. Qualifications; health certificate; disability; acting
superintendent.
(a) Each county superintendent shall hold a professional
administrative certificate endorsed for superintendent, or a first-
class permit endorsed for superintendent, subject to the following:
_____(1) Provided, That A superintendent who holds a first-class
permit may be appointed for only one year only and may be
reappointed two times for an additional year each upon an annual
evaluation by the county board and a determination of satisfactory
performance and reasonable progress toward completion of the requirements for a professional administrative certificate endorsed
for superintendent;
(2) Provided, however, That Any candidate for superintendent
who possesses an earned doctorate from an accredited institution of
higher education and either has completed three successful years of
teaching in public education and or has the equivalent of three
years of experience in management or supervision as defined by
state board rule, upon employment after employment by the county
board of education, shall be granted a permanent administrative
certificate and shall be a licensed county superintendent;
(c) Upon finding that the course work needed by a
superintendent who holds a first class permit endorsed for
superintendent is not available or is not scheduled in a manner at
state institutions of higher education which will enable him or her
to complete the normal requirements for a professional
administrative certificate endorsed for superintendent within the
three-year period allowed for appointment and reappointment under
the permit, the state board shall adopt a rule in accordance with
article three-b, chapter twenty-nine-a of this code, to enable
completion of the requirements, or comparable alternative
requirements, for a professional administrative certificate
endorsed for superintendent.
(3) The state board shall promulgate a legislative rule in accordance with article three-b, chapter twenty-nine-a of this
code, to address those cases where a county board finds that
coursework needed by the county superintendent who holds a first-
class permit is not available or is not scheduled at state
institutions of higher education in a manner which will enable the
county superintendent to complete normal requirements for a
professional administrative certificate within the three-year
period allowed under the permit; and
_____(4) Any person employed as assistant superintendent or
educational administrator prior to the twenty-seventh day of June,
one thousand nine hundred eighty-eight, and who was previously
employed as superintendent is not required to hold the professional
administrative certificate endorsed for superintendent.
(b) In addition to other requirements set forth in this
section, before entering upon the discharge of his or her duties
the a county superintendent shall meet the following health-related
conditions of employment:
_____(1) Before entering upon the discharge of his or her duties,
file with the president of the county board a health certificate
from a reputable physician, on a form prescribed by the state
department of education, certifying that he or she is physically
fit for the duties of his or her office and that he or she has no
infectious or contagious disease; and if the superintendent, due to accident or illness, becomes incapacitated to an extent that could
lead to a prolonged absence, the board, upon unanimous vote, may
enter an order declaring the incapacity and it shall appoint an
acting superintendent until such time as a majority of the members
of the board determine that the incapacity no longer exists.
However, an acting superintendent shall not serve as such for more
than one year, or later than the expiration date of the
superintendent's term, whichever is less, without being reappointed
by the board of education licensed physician certifying the
following:
_____(A) A tuberculin skin test, of the type Mantoux test (PPD skin
test), approved by the director of the department of health, has
been made within four months prior to the beginning of the term of
the county superintendent; and
_____(B) The county superintendent does not have tuberculosis in a
communicable state based upon the test results and any further
study;
_____(2) After completion of the initial test, the county
superintendent shall have an approved tuberculin skin test once
every two years or more frequently if medically indicated.
Positive reactors to the skin test are to be referred immediately
to a physician for evaluation and indicated treatment or further
studies;
_____(3) A county superintendent who is certified by a licensed
physician to have tuberculosis in a communicable stage shall have
his or her employment discontinued or suspended until the disease
has been arrested and is no longer communicable; and
_____(4) A county superintendent who fails to complete required
follow-up examinations as set forth in this subsection shall be
suspended from employment until a report of examination is
confirmed.
§18-4-6. Evaluation of county superintendent.
(a) At least annually, the county board shall evaluate the
performance of the county superintendent. The evaluation process
to be used shall be one authorized by the state board. The West
Virginia school board association shall maintain a catalog of
evaluation instruments which comply with this section and shall
make them available to county boards.
(b) At a minimum, the evaluation process shall require the
county superintendent and county board to establish written goals
or objectives for the county superintendent to accomplish within a
given period of time. Additionally, the county board shall
evaluate the county superintendent on his or her success in
improving student achievement generally across the county and
specifically as it relates to the management and administration of
low-performing schools.
(c) The evaluation also may cover the performance of a county
superintendent in the areas of community relations, school finance,
personnel relations, curricular standards and programs, and overall
leadership of the school district as indicated primarily by
improvements in student achievement, testing and assessment.
(d) The evaluation of a county superintendent shall occur in
executive session. At the conclusion of the evaluation, the county
board shall make available to the public a general statement about
the evaluation process and the overall result. Additional
information about the evaluation may be released only by mutual
consent of the county superintendent and the county board. The
county board may use the evaluation results to determine:
(1) Whether to extend the contract of the county
superintendent;
(2) Whether to offer the county superintendent a new contract;
and
(3) The level of compensation or benefits to offer the county
superintendent in any new or extended contract.
§18-4-10. Duties of county superintendent.
The county superintendent shall:
(1) Act as the chief executive officer of the county board as
may be delineated in his or her contract or other written agreement
with the county board and, execute under the direction of the state board, execute all its educational education policies;
(2) Nominate all personnel to be employed; in case the county
board of education refuses to employ any or all of the persons
nominated, the county superintendent shall nominate others and
submit the same to the county board of education at such a time as
the county board may direct. but no such No person or persons
shall be employed except on the nomination of the county
superintendent;
(3) Assign, transfer, suspend or promote teachers and all
other school employees of the district, subject only to the
approval of the county board, and to recommend to the county board
their dismissal pursuant to the provisions of this chapter;
(4) Organize and attend district institutes; organize and
direct reading circles and boys' and girls' clubs Report promptly
to the county board in such manner as it directs whenever any
school in the district appears to be failing to meet the standards
for improving education established pursuant to section five,
article two-e of this chapter;
(5) Close temporarily a school temporarily when conditions are
detrimental to the health, safety or welfare of the pupils;
(6) Certify all expenditures and monthly payrolls of teachers
and employees;
(7) Be Serve as the secretary of the county board and attend all meetings of the county board or its committees, except when his
the tenure, salary or administration of the county superintendent
is under consideration;
(8) Administer oaths and examine under oath witnesses under
oath in any proceedings pertaining to the schools of the district,
and have the testimony reduced to writing;
(9) Keep the county board apprised continuously of any issues
that affect the county board or its schools, programs and
initiatives. The county superintendent shall report to the county
board on these issues using any appropriate means agreeable to both
parties. When practicable, the reports shall be fashioned to
include a broad array of data and information that the county board
may consult to aid in making decisions;
_____(9) (10) Exercise all other authority granted by this chapter
or required by the county board or state board; and
(10) (11) Act in In case of emergency, act as the best
interests of the school demand. Provided, That an An emergency, as
contemplated in this section, shall be is limited to an
unforeseeable, catastrophic event, including natural disaster or
act of war, Provided, however, That and nothing in this section
shall may be construed as granting the county superintendent
authority to override any statutory or constitutional provision in
the exercise of said his or her emergency power except where such authority is specifically granted in the particular code section.
§18-4-11. Other powers and duties.
The county superintendent shall:
(1) Visit the schools as often as practical practicable;
observe and make suggestions concerning the instruction and
classroom management of the schools and their sanitary conditions;
(2) Report to the county board cases of incompetence, neglect
of duty, immorality or misconduct in office of any teacher or
employee;
(3) Recommend for condemnation buildings unfit for school use;
(4) Direct the taking of the school census;
(5) (4) Call, at his or her discretion, conferences of
principals and teachers to discuss the work of the schools of the
district;
(6) (5) Report to the county board the progress and general
condition of the schools;
(7) (6) Make such reports as are required by the state
superintendent. In case the county superintendent fails to report
as required, the state superintendent may direct that the
superintendent's salary of the county superintendent be withheld
until an acceptable report is received; and
_____(8) (7) Perform all other duties prescribed in this chapter or
required by the county board or the state board.;
On page five, after section one-a, by inserting the following:
§18-5-1c. Organization of board; evaluation.
(a) On the first Monday of January, following each biennial
primary election, each respective board of education shall organize
and elect for a two-year term, a president from its own membership
and report same promptly to the state superintendent of schools:
Provided, That on the first Monday of January, one thousand nine
hundred eighty-one, each respective board of education shall elect
a president for a term to expire the thirtieth day of June, one
thousand nine hundred eighty-two: Provided, however, That on On the
first Monday of July, following the each biennial primary election,
in the year one thousand nine hundred eighty-two and each biennial
primary election thereafter each respective county board of
education shall organize and shall elect a president from its own
membership for a two-year term. a president from its own membership
and The county board shall report same promptly to the state
superintendent of schools promptly to the state superintendent the
name of the member elected as county board president.
_____(b) Annually, each county board shall assess its own
performance using an instrument approved by the state board. In
developing or making determinations on approving evaluation
instruments, the state board may consult with the West Virginia
school board association or other appropriate organizations. The evaluation instrument selected shall focus on the effectiveness of
the county board in the following areas:
_____(1) Dealing with its various constituency groups and with the
general public;
_____(2) Providing a proper framework and the governance strategies
necessary to monitor and approve student achievement on a continuing
basis; and
_____(3) Enhancing the effective utilization of the policy approach
to governance.
_____At the conclusion of the evaluation, the county board shall
make available to the public a summary of the evaluation, including
areas in which the board concludes improvement is warranted.
§18-5-4. Meetings; employment and assignment of teachers; budget
hearing; compensation of members; affiliation with state and
national associations.
(a) The county board shall meet on the first Monday of July,
and upon the dates provided by law for the laying of levies, and at
any other times the county board fixes upon its records. Subject
to adequate public notice, nothing herein shall prohibit the county
board from conducting regular meetings in facilities within the
county other than the county board office. At any meeting as
authorized in this section and in compliance with the provisions of
article four of this chapter, the county board may employ qualified teachers, or those who will qualify by the time of entering they
enter upon their duties, necessary to fill existing or anticipated
vacancies for the current or next ensuing school year. At a meeting
of the county board, on or before the first Monday of May, the
county superintendent shall furnish in writing to the county board
a list of those teachers to be considered for transfer and
subsequent assignment for the next ensuing school year. All other
teachers not listed are considered as reassigned to the positions
held at the time of this meeting. The list of those recommended for
transfer shall be included in the minute record and the teachers
listed shall be notified in writing. The notice shall be delivered
in writing, by certified mail, return receipt requested, to the
teachers' last known addresses within ten days following the board
meeting, of their having been recommended for transfer and
subsequent assignment.
(b) Special meetings may be called by the president or any
three members, but no business may be transacted other than that
designated in the call.
(c) In addition, a public hearing shall be held concerning the
preliminary operating budget for the next fiscal year not less fewer
than ten days after the budget has been made available to the public
for inspection, and within a reasonable time prior to the submission
of the budget to the state board for approval. Reasonable time shall be granted at the hearing to any person who wishes to speak
regarding any part of the budget. Notice of the hearing shall be
published as a Class I legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code.
(d) A majority of the members of the county board constitutes
the quorum necessary for the transaction of official business.
(e) Board members may receive compensation at a rate not to
exceed one hundred sixty dollars per meeting attended, but they may
not receive pay for more than fifty meetings in any one fiscal year:
Provided, That board Board members who serve on an administrative
council of a multicounty vocational center may also may receive
compensation for attending up to twelve meetings of the council at
the same rate as for meetings of the county board. Meetings of the
council are not counted as board meetings for purposes of
determining the limit on compensable board meetings.
(f) Members shall also shall be paid, upon the presentation of
an itemized sworn statement, for all necessary traveling expenses,
including all authorized meetings, incurred on official business,
at the order of the county board.
(g) When, by a majority vote of its members, a county board
considers it a matter of public interest, the county board may join
the West Virginia school board association and the national school
board association, and may pay the dues prescribed by the associations and approved by action of the respective county boards.
Membership dues and actual traveling expenses of incurred by board
members for attending meetings of the West Virginia school board
association may be paid by their respective county boards out of
funds available to meet actual expenses of the members, but no
allowance may be made except upon sworn itemized statements.;
On page eight, after section seven, by adding the following:
§18-5-13. Authority of boards generally.
The boards Each county board, subject to the provisions of this
chapter and the rules of the state board, have has the authority:
(a) To control and manage all of the schools and school
interests for all school activities and upon all school property,
whether owned or leased by the county, including the authority to
require that records be kept of all receipts and disbursements of
all funds collected or received by any principal, teacher, student
or other person in connection with the schools and school interests,
any programs, activities or other endeavors of any nature operated
or carried on by or in the name of the school, or any organization
or body directly connected with the school, to audit the records and
to conserve the funds, which shall be considered quasi-public
moneys, including securing surety bonds by expenditure of board
moneys;
(b) To establish schools, from preschool through high school, inclusive of vocational schools; and to establish schools, and
programs or both, for post-high school instruction, subject to
approval of the state board of education;
(c) To close any school which is unnecessary and to assign the
pupils of the school to other schools: Provided, That the closing
shall be officially acted upon, and teachers and service personnel
involved notified on or before the first Monday in April, in the
same manner as provided in section four of this article, except in
an emergency, subject to the approval of the state superintendent,
or under subdivision (e) of this section;
(d) To consolidate schools;
(e) To close any elementary school whose average daily
attendance falls below twenty pupils for two months in succession
and send the pupils to other schools in the district or to schools
in adjoining districts. If the teachers in the closed school are
not transferred or reassigned to other schools, they shall receive
one month's salary;
(f) (1) To provide at public expense adequate means of
transportation, including transportation across county lines for
students whose transfer from one district to another is agreed to
by both county boards as reflected in the minutes of their
respective meetings, for all children of school age who live more
than two miles distance from school by the nearest available road; to provide at public expense, and according to such rules as the
board may establish, adequate means of transportation for school
children participating in county board-approved curricular and
extracurricular activities; and to provide in addition thereto at
public expense, by rules and within the available revenues,
transportation for those within two miles distance; and to provide,
in addition thereto, at no cost to the county board and according
to rules established by the board, transportation for participants
in projects operated, financed, sponsored or approved by the
commission on aging, all subject to the following:
(A) Provided, That all All costs and expenses incident in any
way to transportation for projects connected with the commission on
aging shall be borne by the commission, or the local or county
chapter of the commission;
(B) Provided, however, That in In all cases, the school buses
owned by the county board of education shall be driven or operated
only by drivers regularly employed by the county board; of
education:
(C) Provided further, That the The county board may provide,
under rules established by the state board, for the certification
of professional employees as drivers of county board-owned vehicles
with a seating capacity of less than ten passengers used for the
transportation of pupils for school-sponsored activities other than transporting students between school and home. And provided further,
That the The use of the vehicles shall be limited to one for each
school-sponsored activity; and
_____(D) And provided further, That buses Buses shall be used for
extracurricular activities as provided in this section only when the
insurance provided for by this section is in effect.
(2) To enter into agreements with one another as reflected in
the minutes of their respective meetings to provide, on a
cooperative basis, adequate means of transportation across county
lines for children of school age subject to the conditions and
restrictions of this subdivision subsection and subdivision
subsection (h) of this section;
(g) (1) To lease school buses operated only by drivers
regularly employed by the county board to public and private
nonprofit organizations or private corporations to transport school-
age children to and from camps or educational activities in
accordance with rules established by the county board. All costs
and expenses incurred by or incidental to the transportation of the
children shall be borne by the lessee;
(2) To contract with any college or university or officially
recognized campus organizations to provide transportation for
college or university students, faculty or staff to and from the
college or university. Provided, That only Only college and university students, faculty and staff are being may be transported
pursuant to this section. The contract shall include consideration
and compensation for bus operators, repairs and other costs of
service, insurance and any rules concerning student behavior;
(h) To provide at public expense for insurance against the
negligence of the drivers of school buses, trucks or other vehicles
operated by the board; and if the transportation of pupils is
contracted, then the contract for the transportation shall provide
that the contractor shall carry insurance against negligence in an
amount specified by the board;
(i) To provide solely from county board funds for all regular
full-time employees of the county board all or any part of the cost
of a group plan or plans of insurance coverage not provided or
available under the West Virginia public employees insurance act;
(j) To employ teacher aides, to provide in-service training for
teacher aides, the training to be in accordance with rules of the
state board and, in the case of service personnel assuming duties
as teacher aides in exceptional children programs, to provide a
four-clock-hour program of training prior to the assignment which
shall, in accordance with rules of the state board, consist of
training in areas specifically related to the education of
exceptional children;
(k) To establish and conduct a self-supporting dormitory for the accommodation of the pupils attending a high school or
participating in a post-high school program and of persons employed
to teach in the high school or post-high school program;
(l) To At the board's discretion, to employ, contract with or
otherwise engage legal counsel in lieu of utilizing the prosecuting
attorney to advise, attend to, bring, prosecute or defend, as the
case may be, any matters, actions, suits and proceedings in which
the board is interested;
(m) To provide appropriate uniforms for school service
personnel;
(n) To provide at public expense and under rules as established
by any county board of education for the payment of traveling
expenses incurred by any person invited to appear to be interviewed
concerning possible employment by the county board; of education;
(o) To allow or disallow their designated employees to use
publicly provided carriage to travel from their residences to their
workplace and return: Provided, That the usage is subject to the
supervision of the county board and is directly connected with and
required by the nature and in the performance of the employee's
duties and responsibilities;
(p) To provide, at public expense, adequate public liability
insurance, including professional liability insurance for county
board employees;
(q) To enter into agreements with one another to provide, on
a cooperative basis, improvements to the instructional needs of each
county district. The cooperative agreements may be used to employ
specialists in a field of academic study or support functions or
services, for the academic study. The agreements are subject to
approval by the state board; of education;
(r) To provide information about vocational or higher education
opportunities to students with handicapping conditions. The county
board shall provide in writing to the students and their parents or
guardians information relating to programs of vocational education
and to programs available at state-funded institutions of higher
education. The information may include sources of available
funding, including grants, mentorships and loans for students who
wish to attend classes at institutions of higher education;
(s) To enter into agreements with one another, with the
approval of the state board, for the transfer and receipt of any and
all funds determined to be fair when students are permitted or
required to attend school in a county district other than the county
district of their residence; and
(t) To enter into job-sharing arrangements, as defined in
section one, article one, chapter eighteen-a of this code, with its
professional employees, subject to the following provisions:
_____(1) Provided, That a A job-sharing arrangement shall meet all the requirements relating to posting, qualifications and seniority,
as provided for in article four, chapter eighteen-a of this code;
(2) Provided, however, That notwithstanding Notwithstanding any
provisions of this code or legislative rule and specifically the
provisions of article fifteen sixteen, chapter five of this code to
the contrary, a county board which enters into a job-sharing
arrangement wherein in which two or more professional employees
voluntarily share an authorized full-time position shall provide the
mutually agreed upon employee coverage but shall not offer insurance
coverage to more than one of the job-sharing employees, including
any group plan or group plans available under the state public
employees insurance act;
(3) Each job-sharing agreement shall be in writing on a form
prescribed and furnished by the county board. The agreement shall
designate specifically one employee only who is entitled to the
insurance coverage. Any employee who is not so designated is not
eligible for state public employees insurance coverage regardless
of the number of hours he or she works;
_____(4) provided further, That all All employees involved in the
job-sharing agreement meet the requirements of subdivision (4) (3),
section two, article sixteen, chapter five of this code; and
_____(5) When entering into a job-sharing agreement, the county
board and the employees involved in the job-sharing agreement shall consider issues such as retirement benefits, termination of the job-
sharing agreement and any other issue the parties to the agreement
consider appropriate. Any provision in the agreement relating to
retirement benefits shall not cause any cost to be incurred by the
retirement system that is more than the cost that would be incurred
if a single employee were filling the position.
"Quasi-public funds" as used in this section means any money
received by any principal, teacher, student or other person for the
benefit of the school system as a result of curricular or
noncurricular activities.
The board of each county Each county board shall expend under
rules it establishes for each child an amount not to exceed the
proportion of all school funds of the district that each child would
be entitled to receive if all the funds were distributed equally
among all the children of school age in the district upon a per
capita basis.
§18-5-14. Policies to promote school board effectiveness.
(a) Prior to No later than the first day of August, one
thousand nine hundred ninety-four two thousand three, each county
board in this state shall adopt and may modify thereafter as
necessary and file with the state board copies of policies and
summaries of policies that promote school board effectiveness.
These policies may be modified by the county board as necessary, but shall be refiled with the state board following each modification.
The policies shall address the following objectives:
_____(a) (1) Establish Establishing direct links between the county
board and its local school improvement councils, and between the
county board and its faculty senates, for the purpose of enabling
the county board to receive information, comments and suggestions
directly from the councils and faculty senates regarding the broad
guidelines for oversight procedures, standards of accountability and
planning for future needs as required by this section. and To
further development of these linkages, each county boards board
shall meet:
(A) Meet at least annually with the full membership a quorum
of members from each of their schools' local school improvement
councils council in the district, at a time and in a manner to be
determined by the county board, except, For purposes of this
provision, full membership is defined as at least a quorum of the
members of each of the school improvement councils in order to
facilitate scheduling, the county board may adopt an alternate
procedure allowing it to conduct the required annual meeting with
each council in the absence of a quorum of council members if the
alternate procedure has received prior approval from the state board
and if the school district serves more than twenty thousand students
or has more than twelve public schools.
Nothing herein shall prohibit boards in this section prohibits
a county board from meeting with representatives of local school
improvement councils: Provided, That a local school improvement
council, but at least one annual meeting is shall be held, as
specified herein in this section.
_____At any time and with reasonable advance notice, county boards
may schedule additional meetings with the council for any low-
performing school in the district;
_____(B) At least thirty days before an annual meeting with each
local school improvement council, develop and submit to the council
an agenda for the annual meeting which requires the council chair
or a member designated by the chair to address items designated by
the county board from the report created pursuant to this section
and one or more of the following issues:
_____(i) School performance;
_____(ii) Curriculum;
_____(iii) Status of the school in meeting the unified school
improvement plan established pursuant to section five, article two-e
of this chapter; and
_____(iv) Status of the school in meeting the county plan
established pursuant to section five, article two-e of this chapter;
_____(C) Make written requests for information from the local school
improvement council throughout the year or hold community forums to receive input from the affected community as the county board
considers necessary; and
_____(D) Report details to the state board details concerning such
the meeting or meetings held with councils, as specified herein, and
such in this section. The information shall be provided to the
state board at the conclusion of the school year, but no later than
the first day of September of each year, and shall become an
indicator in the performance accreditation process for each county.
In order to facilitate development of this report, a county board
may consult with and request assistance from members of the
councils.
_____(b) (2) Provide Providing for the development of direct links
between the county board and the community at large allow allowing
for community involvement at regular county board meetings and
specify specifying how the county board will regularly communicate
regularly with the public regarding important issues;
(c) (3) Provide Providing for the periodic review of personnel
policies of the district in order to determine their effectiveness;
(d) (4) Set Setting broad guidelines for the school district,
including the establishment of specific oversight procedures,
development and implementation of standards of accountability, and
the development of long-range plans to meet future needs as required
by this section; and
(e) (5) Use Using school-based accreditation and performance
data provided by the state board and other available data in county
board decisionmaking to meet the education goals of the state and
such other goals as the county board may establish.
(b) On or before the first day of August of each year, county
school boards shall review the policies listed in subsection (a) of
this section and may modify these policies as necessary.
§18-5-25. Duties of superintendent as secretary of board.
The county superintendent as secretary of the board shall:
(1) Take the oath prescribed in the constitution before
performing any of the duties of his office;
(2) Attend all board meetings and record its official
proceedings in a book kept for that purpose;
(3) Record the number of each order issued, the name of the
payee, the purpose for which the order was issued and the amount
thereof. Every order shall be signed by the secretary and the
president of the board;
(4) Care for and keep all papers belonging to the board,
including evidences of title, contracts and obligations. They shall
be kept in the secretary's office, accessibly arranged for
reference;
(5) Record and keep on file all papers and documents pertaining
to the business of the board;
(6) Make a tabular report to the board on or before the
twentieth day of July, annually, showing all the statistics and
facts required by the blanks furnished by the state superintendent.
He may collect his material from the annual report of the sheriff,
the teachers' register and such other sources as he thinks
desirable, and he may accompany his report with such explanation and
comment as he deems pertinent;
(7) (6) Keep the accounts and certify the reports required by
law or requested by the board;
(8) (7) Administer oaths to school officers, teachers and
others making reports;
(9) (8) Deliver in proper condition to his successor all
records and property pertaining to his office; and
_____(10) (9) Exercise such other duties as are prescribed by law.
§18-5-45. School calendar.
(a) As used in this section, the following terms have the
following meanings:
(1) Instructional day means a day within the instructional term
which meets the following criteria:
(A) Instruction is offered to students for the amounts of time
provided by state board rule;
(B) A minimum percentage of students, as defined by state board
rule, is present in the county schools;
(C) Instructional time is used for instruction, cocurricular
activities and approved extracurricular activities and, pursuant to
the provisions of subdivision (12), subsection (b), section five,
article five-a of this chapter, faculty senates; and
(D) Such other criteria as the state board determines
appropriate.
(2) Bank time means time added beyond the required
instructional day which may be accumulated and used in larger blocks
of time during the school year for instructional or noninstructional
activities, as further defined by the state board.
(3) Extracurricular activities are activities under the
supervision of the school such as athletics, noninstructional
assemblies, social programs, entertainment and other similar
activities, as further defined by the state board.
(4) Cocurricular activities are activities that are closely
related to identifiable academic programs or areas of study that
serve to complement academic curricula as further defined by the
state board.
(b) Findings. --
(1) The primary purpose of the school system is to provide
instruction for students.
(2) The school calendar, as defined in this section, is
designed to define the school term both for employees and for instruction.
(3) The school calendar traditionally has provided for one
hundred eighty actual days of instruction but numerous circumstances
have combined to cause the actual number of instructional days to
be less than one hundred eighty.
(4) The quality and amount of instruction offered during the
instructional term is affected by the extracurricular and
cocurricular activities allowed to occur during scheduled
instructional time.
(5) Within reasonable guidelines, the school calendar should
be designed at least to guarantee that one hundred eighty actual
days of instruction are possible.
(c) The county board shall provide a school term for its
schools that contains the following:
(1) An employment term for teachers of no less than two hundred
days, exclusive of Saturdays and Sundays; and
(2) Within the employment term, an instructional term for
students of no less than one hundred eighty separate instructional
days.
(d) The instructional term for students shall include one
instructional day in each of the months of October, December,
February, April and June which is an instructional support and
enhancement day scheduled by the board to include both instructional activities for students and professional activities for teachers to
improve student instruction. The instructional activities for
students may include, but are not limited to, both in-school and
outside-of-school activities such as student mentoring, tutoring,
counseling, student research and other projects or activities of an
instructional nature, community service, career exploration, parent
and teacher conferences, visits to the homes of students, college
and financial aid workshops and college visits. The instructional
activities for students shall be determined and scheduled at the
local school level. The first two hours of the instructional day
shall be used for instructional activities for students which
require the direct supervision or involvement by teachers, and such
activities shall be limited to two hours. To ensure that the
students who attend are properly supervised, the instructional
activities for students shall be arranged by appointment with the
individual school through the principal, a teacher or other
professional personnel at the school. The school shall establish
a policy relating to the use of the two-hour block scheduled for
instructional activities for students. The professional activities
for teachers shall include a two-hour block of time immediately
following the first two hours of instructional activities for
students during which the faculty senate shall have the opportunity
to meet. Any time not used by the faculty senate and the remainder of the school day, not including the duty-free lunch period, shall
be used for other professional activities for teachers to improve
student instruction which may include, but are not limited to,
professional staff development, curriculum team meetings,
individualized education plan meetings and other meetings between
teachers, principals, aides and paraprofessionals to improve student
instruction as determined and scheduled at the local school level.
Notwithstanding any other provision of law or policy to the
contrary, the presence of any specific number of students in
attendance at the school for any specific period of time shall not
be required on instructional support and enhancement days and the
transportation of students to the school shall not be required.
Instructional support and enhancement days are also a scheduled work
day for all service personnel and shall be used for training or
other tasks related to their job classification if their normal
duties are not required.
_____(d) (e) The instructional term shall commence no earlier than
the twenty-sixth day of August and terminate no later than the
eighth day of June.
(e) (f) Noninstructional days shall total twenty and shall be
comprised of the following:
(1) Seven holidays as specified in section two, article five,
chapter eighteen-a of this code;
(2) Election day as specified in section two, article five,
chapter eighteen-a of this code;
(3) Six days to be designated by the county board to be used
by the employees outside the school environment; and
(4) Six days to be designated by the county board for any of
the following purposes:
(A) Curriculum development;
(B) Preparation for opening and closing school;
(C) Professional development;
(D) Teacher-pupil-parent conferences;
(E) Professional meetings; and
(F) Making up days when instruction was scheduled but not
conducted.
(f) (g) Three of the days described in subdivision (4),
subsection (f) of this section shall be scheduled prior to the
twenty-sixth day of August for the purposes of preparing for the
opening of school and staff development.
(g) (h) At least one of the days described in subdivision (4),
subsection (f) of this section shall be scheduled after the eighth
day of June for the purpose of preparing for the closing of school.
If one hundred eighty separate instruction days occur prior to the
eighth day of June, this day may be scheduled on or before the
eighth day of June.
(h) (i) At least four of the days described in subdivision (3),
subsection (f) of this section shall be scheduled after the first
day of March.
(i) (j) At least two of the days described in subdivision (4),
subsection (f) of this section, will be scheduled for professional
development. The professional development conducted on these days
will be consistent with the goals established by the state board
pursuant to the provisions of section twenty-three-a, article two,
chapter eighteen of this code.
(j) (k) Subject to the provisions of subsection (h) of this
section, all noninstructional days will be scheduled prior to the
eighth day of June.
(k) (l) The Except as otherwise provided in this subsection,
the state board may not schedule the primary statewide assessment
program prior to the fifteenth day of May of the instructional year,
unless the state board determines that the nature of the test
mandates an earlier testing date. For the school year beginning two
thousand three only, the state board may not schedule the primary
statewide assessment program prior to the fifteenth day of April of
the instructional year.
_____(l) (m) If, on or after the first day of March, the county
board determines that it is not possible to complete one hundred
eighty separate days of instruction, the county board shall schedule instruction on any available noninstructional day, regardless of the
purpose for which the day originally was scheduled, and the day will
be used for instruction: Provided, That the noninstructional days
scheduled for professional development shall be the last available
noninstructional days to be rescheduled as instructional days:
Provided, however, That on or after the first day of March, the
county board also may require additional minutes of instruction in
the school day to make up for lost instructional days in excess of
the days available through rescheduling and, if in its judgment it
is reasonable and necessary to improve student performance, to avoid
scheduling instruction on noninstructional days previously scheduled
for professional development. The provisions of this subsection do
not apply to: (1) Holidays; and (2) election day.
(m) (n) The following applies to bank time:
(1) Bank time may not be used to avoid one hundred eighty
separate days of instruction;
(2) Bank time may not be used to lengthen the time provided in
law for faculty senates;
(3) The use of bank time for extracurricular activities will
be limited by the state board; and
(4) Such other requirements or restrictions as the state board
may provide in the rule required to be promulgated by this section.
(n) (o) The following applies to cocurricular activities:
(1) The state board shall determine what activities may be
considered cocurricular;
(2) The state board shall determine the amount of instructional
time that may be consumed by cocurricular activities; and
(3) Such other requirements or restrictions as the state board
may provide in the rule required to be promulgated by this section.
(o) (p) The following applies to extracurricular activities:
(1) Except as provided by subdivision (3) of this subsection,
extracurricular activities may not be scheduled during instructional
time;
(2) The use of bank time for extracurricular activities will
be limited by the state board; and
(3) The state board shall provide for the attendance by
students of certain activities sanctioned by the secondary schools
activities commission when those activities are related to statewide
tournaments or playoffs or are programs required for secondary
schools activities commission approval.
(p) (q) Noninstructional interruptions to the instructional day
shall be minimized to allow the classroom teacher to teach.
(q) (r) Nothing in this section prohibits establishing year-
round schools in accordance with rules to be established by the
state board.
(r) (s) Prior to implementing the school calendar, the county board shall secure approval of its proposed calendar from the state
board or, if so designated by the state board, from the state
superintendent.
(s) (t) The county board may contract with all or part of the
personnel for a longer term.
(t) (u) The minimum instructional term may be decreased by
order of the state superintendent in any county declared a federal
disaster area and where the event causing the declaration is
substantially related to a reduction of instructional days.
(u) (v) Where the employment term overlaps a teacher's or
service personnel's participation in a summer institute or
institution of higher education for the purpose of advancement or
professional growth, the teacher or service personnel may
substitute, with the approval of the county superintendent, the
participation for up to five of the noninstructional days of the
employment term.
(v) (w) The state board shall promulgate a rule in accordance
with the provisions of article three-b, chapter twenty-nine-a of
this code for the purpose of implementing the provisions of this
section.
ARTICLE 5A. LOCAL SCHOOL INVOLVEMENT.
§18-5A-2. Local school improvement councils; election.
(a) A local school improvement council shall be established at every school consisting of the following:
(1) The principal, who shall serve as an ex officio member of
the council and be entitled to vote;
(2) Three teachers elected by the faculty senate of the school;
(3) Two school service personnel elected by the school service
personnel employed at the school;
(4) Three parent(s), guardian(s) or custodian(s) of students
enrolled at the school elected by the parent(s), guardian(s) or
custodian(s) members of the school's parent teacher organization:
Provided, That if there is no parent teacher organization, the
parent(s), guardian(s) or custodian(s) members shall be elected by
the parent(s), guardian(s) or custodian(s) of students enrolled at
the school in such manner as may be determined by the principal;
(5) Two at-large members appointed by the principal, one of
whom resides in the school's attendance area and one of whom
represents business or industry, neither of whom is eligible for
membership under any of the other elected classes of members;
(6) In the case of vocational-technical schools, the vocational
director: Provided, That if there is no vocational director, then
the principal may appoint no more than two additional
representatives, one of whom represents business and one of whom
represents industry;
(7) In the case of a school with students in grade seven or higher, the student body president or other student in grade seven
or higher elected by the student body in those grades.
(b) Under no circumstances may more than one parent member of
the council be then employed at that school in any capacity.
_____(b) (c) The principal shall arrange for such elections to be
held prior to the fifteenth day of September of each school year to
elect a council and shall give notice of the elections at least one
week prior to the elections being held. To the extent practicable,
all elections to select council members shall be held within the
same week.
(d) Parent(s), guardian(s) or custodian(s), teachers and
service personnel elected to the council shall serve a two-year
term, and elections shall be arranged in such a manner that no more
than two teachers, no more than two parent(s), guardian(s) or
custodian(s), and no more than one service person are elected in a
given year. All other non-ex officio members shall serve one-year
terms.
(e) Council members may only be replaced upon death,
resignation, failure to appear at three consecutive meetings of the
council for which notice was given, or a change in personal
circumstances so that the person is no longer representative of the
class of members from which appointed. In the case of replacement,
an election shall be held to elect a vacancy in an elected membership, the chair of the council shall appoint another qualified
person to serve the unexpired term of the person being replaced or,
in the case of an appointed member of the council, the principal
shall appoint a replacement as soon as practicable.
(c) (f) As soon as practicable after the election of council
members, and no later than the first day of October of each school
year, the principal shall convene an organizational meeting of the
school improvement council. The principal shall notify each member
in writing at least two employment days in advance of the
organizational meeting. At this meeting, the principal shall provide
each member with the following:
_____(1) A copy of the current applicable section sections of this
code; and
(2) Any state board rule or regulation promulgated pursuant to
the operation of these councils; and
_____(3) Any information as may be developed by the department of
education on the operation and powers of local school improvement
councils and their important role in improving student and school
performance and progress.
(g) The council shall elect from its membership a chair and two
members to assist the chair in setting the agenda for each council
meeting. The chair shall serve a term of one year and no person may
serve as chair for more than two consecutive terms. If the chair's position becomes vacant for any reason, the principal shall call a
meeting of the council to elect another qualified person to serve
the unexpired term. (d) Once elected, the chair is responsible for
notifying each member of the school improvement council in writing
two employment days in advance of any council meeting.
(h) School improvement councils shall meet at least once every
nine weeks or equivalent grading period at the call of the chair or
by three fourths of its members.
(i) The local school improvement council shall meet at least
annually with the county board, in accordance with the provisions
in section fourteen, article five of this chapter. At this annual
meeting, the local school improvement council chair, or another
member designated by the chair, shall be prepared to address any
matters as may be requested by the county board as specified in the
meeting agenda provided to the council and may further provide any
other information, comments or suggestions the local school
improvement council wishes to bring to the county board's attention.
Anything presented under this subsection shall be submitted to the
county board in writing.
_____(e) (j) School improvement councils shall be considered for the
receipt of school of excellence awards under section three of this
article and competitive grant awards under section twenty-nine,
article two of this chapter, and may receive and expend such grants for the purposes provided in such section. In any and all matters
which may fall within the scope of both the school improvement
councils and the school curriculum teams authorized in section five
of this article, the school curriculum teams shall be deemed to have
jurisdiction. In order to promote innovations and improvements in
the environment for teaching and learning at the school, a school
improvement council shall receive cooperation from the school in
implementing policies and programs it may adopt to:
(1) Encourage the involvement of parent(s), guardian(s) or
custodian(s) in their child's educational process and in the school;
(2) Encourage businesses to provide time for their employees
who are parent(s), guardian(s) or custodian(s) to meet with teachers
concerning their child's education;
(3) Encourage advice and suggestions from the business
community;
(4) Encourage school volunteer programs and mentorship
programs; and
(5) Foster utilization of the school facilities and grounds for
public community activities.
(f) (k) On or before the eighth day of June, one thousand nine
hundred ninety-five, each local school improvement council shall
develop and deliver a report to the countywide council on productive
and safe schools. The report shall include guidelines for the instruction and rehabilitation of pupils who have been excluded from
the classroom, suspended from the school or expelled from the
school, the description and recommendation of in-school suspension
programs, a description of possible alternative settings, schedules
for instruction and alternative education programs and an
implementation schedule for such guidelines. The guidelines shall
include the following:
(1) A system to provide for effective communication and
coordination between school and local emergency services agencies;
(2) A preventive discipline program which may include the
responsible students program devised by the West Virginia board of
education as adopted by the county board of education, pursuant to
the provisions of subsection (e), section one, article five, chapter
eighteen-a of this code; and
(3) A student involvement program, which may include the peer
mediation program or programs devised by the West Virginia board of
education as adopted by the county board of education, pursuant to
the provisions of subsection (e), section one, article five, chapter
eighteen-a of this code.
(g) (l) The council may include in its report to the countywide
council on productive and safe schools provisions of the state board
of education policy 4373, student code of conduct, or any expansion
of such policy which increases the safety of students in schools in this state and is consistent with the policies and other laws of
this state.
(h) (m) Councils may adopt their own guidelines established
under this section. In addition, the councils may adopt all or any
part of the guidelines proposed by other local school improvement
councils, as developed under this section, which are not
inconsistent with the laws of this state, the policies of the West
Virginia board of education or the policies of the county board of
education.
(n) The state board of education shall provide assistance to
a local school improvement council upon receipt of a reasonable
request for that assistance. The state board also may solicit
proposals from other parties or entities to provide orientation
training for local school improvement council members and may enter
into contracts or agreements for that purpose. Any training for
members shall meet the guidelines established by the state board.
§18-5A-5. Public school faculty senates established; election of
officers; powers and duties.
(a) There is established at every public school in this state
a faculty senate which is comprised of all permanent, full-time
professional educators employed at the school who shall all be
voting members. Professional educators, as used in this section,
means professional educators as defined in chapter eighteen-a of this code. A quorum of more than one half of the voting members of
the faculty shall be present at any meeting of the faculty senate
at which official business is conducted. Prior to the beginning of
the instructional term each year, but within the employment term,
the principal shall convene a meeting of the faculty senate to elect
a chair, vice chair and secretary and discuss matters relevant to
the beginning of the school year. The vice chair shall preside at
meetings when the chair is absent. Meetings of the faculty senate
shall be held on a regular basis as determined by a schedule
approved by the faculty senate and amended periodically if needed
during the times provided in accordance with subdivision (12),
subsection (b) of this section as determined by the faculty senate.
Emergency meetings may be held during noninstructional time at the
call of the chair or a majority of the voting members by petition
submitted to the chair and vice chair. An agenda of matters to be
considered at a scheduled meeting of the faculty senate shall be
available to the members at least two employment days prior to the
meeting. For emergency meetings the agenda shall be available as
soon as possible prior to the meeting. The chair of the faculty
senate may appoint such committees as may be desirable to study and
submit recommendations to the full faculty senate, but the acts of
the faculty senate shall be voted upon by the full body.
(b) In addition to any other powers and duties conferred by law, or authorized by policies adopted by the state or county board
of education or bylaws which may be adopted by the faculty senate
not inconsistent with law, the powers and duties listed in this
subsection are specifically reserved for the faculty senate. The
intent of these provisions is neither to restrict nor to require the
activities of every faculty senate to the enumerated items except
as otherwise stated. Each faculty senate shall organize its
activities as it deems most effective and efficient based on school
size, departmental structure and other relevant factors.
(1) Each faculty senate shall control funds allocated to the
school from legislative appropriations pursuant to section nine,
article nine-a of this chapter. From such funds, each classroom
teacher and librarian shall be allotted fifty dollars for
expenditure during the instructional year for academic materials,
supplies or equipment which, in the judgment of the teacher or
librarian, will assist him or her in providing instruction in his
or her assigned academic subjects or shall be returned to the
faculty senate: Provided, That nothing contained herein prohibits
the funds from being used for programs and materials that, in the
opinion of the teacher, enhance student behavior, increase academic
achievement, improve self-esteem and address the problems of
students at risk. The remainder of funds shall be expended for
academic materials, supplies or equipment in accordance with a budget approved by the faculty senate. Notwithstanding any other
provisions of the law to the contrary, funds not expended in one
school year are available for expenditure in the next school year:
Provided, however, That the amount of county funds budgeted in a
fiscal year may not be reduced throughout the year as a result of
the faculty appropriations in the same fiscal year for such
materials, supplies and equipment. Accounts shall be maintained of
the allocations and expenditures of such funds for the purpose of
financial audit. Academic materials, supplies or equipment shall
be interpreted broadly, but does not include materials, supplies or
equipment which will be used in or connected with interscholastic
athletic events.
(2) A faculty senate may establish a process for faculty
members to interview new prospective professional educators and
paraprofessional employees at the school and submit recommendations
regarding employment to the principal, who may also make independent
recommendations, for submission to the county superintendent:
Provided, That such process shall be chaired by the school principal
and must permit the timely employment of persons to perform
necessary duties.
(3) A faculty senate may nominate teachers for recognition as
outstanding teachers under state and local teacher recognition
programs and other personnel at the school, including parents, for recognition under other appropriate recognition programs and may
establish such programs for operation at the school.
(4) A faculty senate may submit recommendations to the
principal regarding the assignment scheduling of secretaries,
clerks, aides and paraprofessionals at the school.
(5) A faculty senate may submit recommendations to the
principal regarding establishment of the master curriculum schedule
for the next ensuing school year.
(6) A faculty senate may establish a process for the review and
comment on sabbatical leave requests submitted by employees at the
school pursuant to section eleven, article two of this chapter.
(7) Each faculty senate shall elect three faculty
representatives to the local school improvement council established
pursuant to section two of this article.
(8) Each faculty senate may nominate a member for election to
the county staff development council pursuant to section eight,
article three, chapter eighteen-a of this code.
(9) Each faculty senate shall have an opportunity to make
recommendations on the selection of faculty to serve as mentors for
beginning teachers under beginning teacher internship programs at
the school.
(10) A faculty senate may solicit, accept and expend any
grants, gifts, bequests, donations and any other funds made available to the faculty senate: Provided, That the faculty senate
shall select a member who has the duty of maintaining a record of
all funds received and expended by the faculty senate, which record
shall be kept in the school office and is subject to normal auditing
procedures.
(11) Any faculty senate may review the evaluation procedure as
conducted in their school to ascertain whether the evaluations were
conducted in accordance with the written system required pursuant
to section twelve, article two, chapter eighteen-a of this code and
the general intent of this Legislature regarding meaningful
performance evaluations of school personnel. If a majority of
members of the faculty senate determine that such evaluations were
not so conducted, they shall submit a report in writing to the state
board of education: Provided, That nothing herein creates any new
right of access to or review of any individual's evaluations.
(12) A local board shall provide to each faculty senate either:
(A) A two-hour per month block of instructional time within the
instructional day; or (B) a two-hour block of time for a faculty
senate meeting on a day scheduled for the opening of school prior
to the beginning of the instructional term and a two-hour block of
time on each instructional support and enhancement day scheduled by
the board for instructional activities for students and professional
activities for teachers pursuant section forty-five, article five of this chapter. A faculty senate may meet for an unlimited block
of time per month during noninstructional days to discuss and plan
strategies to improve student instruction. A faculty senate meeting
scheduled on a noninstructional day shall be considered as part of
the purpose for which the noninstructional day is scheduled. This
time may be utilized and determined at the local school level and
includes, but is not limited to, faculty senate meetings.
(13) Each faculty senate shall develop a strategic plan to
manage the integration of special needs students into the regular
classroom at their respective schools and submit the strategic plan
to the superintendent of the county board of education periodically
pursuant to guidelines developed by the state department of
education. Each faculty senate shall encourage the participation
of local school improvement councils, parents and the community at
large in developing the strategic plan for each school.
Each strategic plan developed by the faculty senate shall
include at least: (A) A mission statement; (B) goals; (C) needs;
(D) objectives and activities to implement plans relating to each
goal; (E) work in progress to implement the strategic plan; (F)
guidelines for placing additional staff into integrated classrooms
to meet the needs of exceptional needs students without diminishing
the services rendered to the other students in integrated
classrooms; (G) guidelines for implementation of collaborative planning and instruction; and (H) training for all regular classroom
teachers who serve students with exceptional needs in integrated
classrooms.
§18-8-4. Duties of attendance director and assistant directors;
complaints, warrants and hearings.
(a) The county attendance director and the assistants shall
diligently promote regular school attendance. They shall ascertain
reasons for inexcusable absences from school of pupils of compulsory
school age and students who remain enrolled beyond the sixteenth
birthday as defined under this article and shall take such steps as
are, in their discretion, best calculated to correct attitudes of
parents and pupils which results in absences from school even though
not clearly in violation of law.
(b) In the case of five consecutive or ten total unexcused
absences of a child during a school year, the attendance director
or assistant shall serve written notice to the parent, guardian or
custodian of such child that the attendance of such child at school
is required and that within ten days of receipt of the notice the
parent, guardian or custodian, accompanied by the child, shall
report in person to the school the child attends for a conference
with the principal or other designated representative of the school
in order to discuss and correct the circumstances causing the
inexcusable absences of the child; and if the parent, guardian or custodian does not comply with the provisions of this article, then
the attendance director or assistant shall make complaint against
the parent, guardian or custodian before a magistrate of the county.
If it appears from the complaint that there is probable cause to
believe that an offense has been committed and that the accused has
committed it, a summons or a warrant for the arrest of the accused
shall issue to any officer authorized by law to serve the summons
or to arrest persons charged with offenses against the state. More
than one summons or warrant may be issued on the same complaint.
The summons or warrant shall be executed within ten days of its
issuance.
(c) The magistrate court clerk, or the clerk of the circuit
court performing the duties of the magistrate court as authorized
in section eight, article one, chapter fifty of this code, shall
assign the case to a magistrate within ten days of execution of the
summons or warrant. The hearing shall be held within twenty days
of the assignment to the magistrate, subject to lawful continuance.
The magistrate shall provide to the accused at least ten days'
advance notice of the date, time and place of the hearing.
(d) When any doubt exists as to the age of a child absent from
school, the attendance director shall have authority to require a
properly attested birth certificate or an affidavit from the parent,
guardian or custodian of such child, stating age of the child. The county attendance director or assistant shall, in the performance
of his or her duties, have authority to take without warrant any
child absent from school in violation of the provisions of this
article and to place such child in the school in which such child
is or should be enrolled.
(e) The county attendance director shall devote such time as
is required by section three of this article to the duties of
attendance director in accordance with this section during the
instructional term and at such other times as the duties of an
attendance director are required. All attendance directors hired
for more than two hundred days may be assigned other duties
determined by the superintendent during the period in excess of two
hundred days. The county attendance director shall be responsible
under direction of the county superintendent for the efficient
administration of school attendance in the county.
(f) In addition to those duties directly relating to the
administration of attendance, the county attendance director and
assistant directors shall also perform the following duties:
(a) (1) Assist in directing the taking of the school census to
see that it is taken at the time and in the manner provided by law;
(b) (2) Confer with principals and teachers on the comparison
of school census and enrollment for the detection of possible
nonenrollees;
(c) (3) Cooperate with existing state and federal agencies
charged with enforcement of child labor laws;
(d) (4) Prepare a report for submission by the county
superintendent to the state superintendent of schools on school
attendance, at such times and in such detail as may be required.
The state board shall promulgate a legislative rule pursuant to
article three-b, chapter twenty-nine-a of this code that sets forth
student absences that shall be excluded for accountability purposes.
The absences that shall be excluded by the rule shall include, but
not be limited to, excused student absences, students not in
attendance due to disciplinary measures and absent students for whom
the attendance director has pursued judicial remedies to compel
attendance to the extent of his or her authority. The attendance
director shall also, file with the county superintendent and county
board of education at the close of each month a report showing
activities of the school attendance office and the status of
attendance in the county at the time;
(e) (5) Promote attendance in the county by the compilation of
data for schools and by furnishing suggestions and recommendations
for publication through school bulletins and the press, or in such
manner as the county superintendent may direct;
(f) (6) Participate in school teachers' conferences with
parents and students;
(g) (7) Assist in such other ways as the county superintendent
may direct for improving school attendance;
(h) (8) Make home visits of students who have excessive
unexcused absences, as provided above, or if requested by the chief
administrator, principal or assistant principal; and
_____(i) (9) The attendance director shall serve Serve as the
liaison for homeless children and youth.;
On page one, by striking out the enacting section and inserting
in lieu thereof a new enacting section, to read as follows:
That section one, article one, chapter eighteen of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted; that section four, article two of said
chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section five-g;
that section seven, article two-e of said chapter be amended and
reenacted; that section one, article three of said chapter be
amended and reenacted; that sections one and two, article four of
said chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section six;
that sections ten and eleven of said article be amended and
reenacted; that sections one-a, one-c, four, seven, thirteen,
fourteen, twenty-five and forty-five, article five of said chapter
be amended and reenacted; that sections two and five, article five-a of said chapter be amended and reenacted; and that section four,
article eight of said chapter be amended and reenacted, all to read
as follows:;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 522--A Bill to amend and
reenact section one, article one, chapter eighteen of the code of
West Virginia, one thousand nine hundred thirty-one, as amended; to
amend and reenact section four, article two of said chapter; to
further amend said article by adding thereto a new section,
designated section five-g; to amend and reenact section seven,
article two-e of said chapter; to amend and reenact section one,
article three of said chapter; to amend and reenact sections one and
two, article four of said chapter; to further amend said article by
adding thereto a new section, designated section six; to amend and
reenact sections ten and eleven of said article; to amend and
reenact sections one-a, one-c, four, seven, thirteen, fourteen,
twenty-five and forty-five, article five of said chapter; to amend
and reenact sections two and five, article five-a of said chapter;
and to amend and reenact section four, article eight of said
chapter, all relating to public education generally; definitions;
allowing state board president to serve an unlimited number of terms, but no more than two consecutive terms; requiring county
boards to provide summary of any modifications to policies or copies
of annual reports to state board and requiring state board to submit
copies to the legislative oversight commission on education
accountability; allowing certain appropriations to be expended
directly or through contractual agreements with county boards and
regional education service agencies for materials and other costs
associated with installation, set-up, internet hook-up and wiring
of the computer hardware and software; clarifying that state
superintendent serves at the will and pleasure of the state board;
requiring the state board to annually evaluate the performance of
the state superintendent and publicly announce the results of the
evaluation; modifying authorization for county superintendent to
transfer to a teaching position at the end of his or her term;
extending the date before which the county superintendent is
required to be appointed; requiring county superintendent to be a
resident of the county, or of a contiguous county in this state,
which he or she serves; requiring state board to define three years
of experience in management or supervision in rule; modifying
requirements for health-related conditions of employment for county
superintendents; providing for discontinuing or suspending
employment of county superintendent under certain circumstances;
requiring that county superintendents be evaluated at least annually; providing criteria for evaluation; providing for
evaluation to take place in executive session; directing county
board to release general statement to the public and provide
additional information only by mutual consent of county board and
county superintendent; delineating appropriate uses of evaluation
results; allowing contract or written agreement to delineate a
county superintendent's acting as chief executive officer; deleting
obsolete language; requiring county superintendent to report
promptly to the county board whenever any school in the district
appears to be failing to meet the standards for improving education;
requiring county superintendent to keep county board apprised of
issues affecting education in the district; removing requirement for
county superintendent to direct the taking of school census;
allowing county board members to serve on certain boards; allowing
request of ethics commission for an advisory opinion; requiring
ethics commission to issue advisory opinion within thirty days;
entitling county board member who relies on opinion to reimbursement
for fees and costs incurred under certain circumstances; prohibiting
vote cast from being invalidated due to subsequent finding that
holding particular office or committee is a bar to membership on the
board; providing that good faith reliance on a written advisory
opinion is an absolute defense to certain civil suits or criminal
prosecutions; requiring board member training to include school performance issues; allowing feasible and practicable extension of
training time; requiring annual county board self-assessment;
specifying focus of evaluation instrument; requiring summary of
evaluation to be made public; allowing county boards to meet in
facilities within the county other than the county board office;
authorizing lease of school property subject to certain
requirements; clarifying county board authority to employ, contract
with or otherwise engage legal counsel; including service personnel
in job-sharing arrangements; adding requirements for job sharing;
limiting cost to retirement system; requiring filing of policies and
summaries of policies that promote school board effectiveness;
requiring annual meeting with a quorum of members from each local
school improvement council; providing for meeting with less than a
quorum under certain circumstances; allowing county board to
schedule additional meeting for any low-performing school in the
district; requiring county board to develop agenda for required
annual meeting with local school improvement council; requiring
county boards to make written requests for information from local
school improvement council or hold community forums to receive input
from the affected community as the county board considers necessary;
modifying time requirements for reporting to state board on meetings
with local school improvement councils; authorizing county board to
request assistance from local school improvement council members to facilitate development of report; requiring county boards to review
the policies to promote school board effectiveness each year;
eliminating duty of county superintendent to make a tabular report
to the county board annually; including five instructional support
and enhancement days within the instructional term that include
instructional activities, professional activities and time for a
faculty senate meeting; requiring instructional activities for
students to be scheduled by appointment; requiring school policy
relating to use of time designated for instructional activities;
providing that presence of any certain number of students and the
transportation of students not required on instructional support and
enhancement days; declaring instructional support and enhancement
days a regular work day for all service personnel; providing that
for one school year only, statewide assessment must be prior to the
fifteenth day of April; requiring professional development days to
be used last when making up instructional days; using additional
minutes of instruction each day for making up lost instructional
days in excess of the days available through rescheduling; avoiding
scheduling instruction on noninstructional days previously scheduled
for professional development under certain circumstances;
prohibiting more than one parent member of a local school
improvement council from being employed at the school; requiring
chair to appoint replacement of elected member of local school improvement council if position becomes vacant; requiring principal
to appoint replacement if appointed position becomes vacant;
requiring principal to provide certain information at the
organizational meeting of the local school improvement council;
requiring local school improvement council chair, or designee, to
be able to address certain matters at annual meeting and in writing;
allowing state board to enter into contracts to provide orientation
training for local school improvement council members; requiring
that any training meet guidelines established by the state board;
requiring a two-hour block of time be scheduled for a faculty senate
meeting on a day scheduled for the opening of school prior to the
beginning of the instructional term; and requiring state board rule
excluding certain absences for accountability purposes.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 522, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for S. B. No. 522) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 538, Allowing supplemental assessment of
personal property in certain case.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On pages four through nine, by striking out all of section
nine;
On page one, by striking out the enacting section and inserting
in lieu thereof a new enacting section, to read as follows:
That section five, article three, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 538--A Bill to amend and reenact section
five, article three, chapter eleven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating to
allowing a supplemental assessment on personal property when
personal property has been omitted from the recordbooks.
On motion of Senator Facemyer, the following amendments to the
House of Delegates amendments to the bill were reported by the
Clerk, considered simultaneously, and adopted:
On page four, after section five, by adding a new section,
designated section nine, to read as follows:
§11-3-9. Property exempt from taxation.
(a) All property, real and personal, described in this
subsection, and to the extent herein limited, is exempt from
taxation:
(1) Property belonging to the United States, other than
property permitted by the United States to be taxed under state law;
(2) Property belonging exclusively to the state;
(3) Property belonging exclusively to any county, district, city, village or town in this state, and used for public purposes;
(4) Property located in this state, belonging to any city,
town, village, county or any other political subdivision of another
state, and used for public purposes;
(5) Property used exclusively for divine worship;
(6) Parsonages and the household goods and furniture pertaining
thereto;
(7) Mortgages, bonds and other evidence of indebtedness in the
hands of bona fide owners and holders hereafter issued and sold by
churches and religious societies for the purposes of securing money
to be used in the erection of church buildings used exclusively for
divine worship, or for the purpose of paying indebtedness thereon;
(8) Cemeteries;
(9) Property belonging to, or held in trust for, colleges,
seminaries, academies and free schools, if used for educational,
literary or scientific purposes, including books, apparatus,
annuities and furniture;
(10) Property belonging to, or held in trust for, colleges or
universities located in West Virginia, or any public or private
nonprofit foundation or corporation which receives contributions
exclusively for such college or university, if the property or
dividends, interest, rents or royalties derived therefrom are used
or devoted to educational purposes of such college or university;
(11) Public and family libraries;
(12) Property used for charitable purposes, and not held or
leased out for profit;
(13) Property used for the public purposes of distributing
water or natural gas, or providing sewer service by a duly chartered
nonprofit corporation when such property is not held, leased out or
used for profit;
(14) Property used for area economic development purposes by
nonprofit corporations when such property is not leased out for
profit;
(15) All real estate not exceeding one acre in extent, and the
buildings thereon, used exclusively by any college or university
society as a literary hall, or as a dormitory or clubroom, if not
used with a view to profit, including, but not limited to, property
owned by a fraternity or sorority organization affiliated with a
university or college, or property owned by a nonprofit housing
corporation or similar entity on behalf of a fraternity or sorority
organization affiliated with a university or college, when the
property is used as residential accommodations, or as a dormitory
for members of the organization;
(16) All property belonging to benevolent associations, not
conducted for private profit;
(17) Property belonging to any public institution for the education of the deaf, dumb or blind, or any hospital not held or
leased out for profit;
(18) Houses of refuge and lunatic or orphan asylums;
(19) Homes for children or for the aged, friendless or infirm,
not conducted for private profit;
(20) Fire engines and implements for extinguishing fires, and
property used exclusively for the safekeeping thereof, and for the
meeting of fire companies;
(21) All property on hand to be used in the subsistence of
livestock on hand at the commencement of the assessment year;
(22) Household goods to the value of two hundred dollars,
whether or not held or used for profit;
(23) Bank deposits and money;
(24) Household goods, which for purposes of this section means
only personal property and household goods commonly found within the
house and items used to care for the house and its surrounding
property, when not held or used for profit;
(25) Personal effects, which for purposes of this section means
only articles and items of personal property commonly worn on or
about the human body, or carried by a person and normally thought
to be associated with the person when not held or used for profit;
(26) Dead victuals laid away for family use; and
(27) Any other property or security exempted by any other provision of law; and
_____(28) All implements, equipment, machinery, vehicles, supplies,
crops and livestock used to engage in commercial farming.
(b) Notwithstanding the provisions of subsection (a) of this
section, no property is exempt from taxation which has been
purchased or procured for the purpose of evading taxation, whether
temporarily holding the same over the first day of the assessment
year or otherwise.
(c) Real property which is exempt from taxation by subsection
(a) of this section shall be entered upon the assessor's books,
together with the true and actual value thereof, but no taxes may
be levied upon the property or extended upon the assessor's books.
(d) Notwithstanding any other provisions of this section, this
section does not exempt from taxation any property owned by, or held
in trust for, educational, literary, scientific, religious or other
charitable corporations or organizations, including any public or
private nonprofit foundation or corporation existing for the support
of any college or university located in West Virginia, unless such
property, or the dividends, interest, rents or royalties derived
therefrom, is used primarily and immediately for the purposes of the
corporations or organizations.
(e) The tax commissioner shall, by issuance of rules, provide
each assessor with guidelines to ensure uniform assessment practices statewide to effect the intent of this section.
(f) In as much as there is litigation pending regarding
application of this section to property held by fraternities and
sororities, amendments to this section enacted in the year one
thousand nine hundred ninety-eight shall apply to all cases and
controversies pending on the date of such enactment.;
On page one, by striking out the enacting section and inserting
in lieu thereof a new enacting section, to read as follows:
That sections five and nine, article three, chapter eleven of
the code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, all to read as follows:;
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 538--A Bill to amend and reenact section
five, article three, chapter eleven of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating to
allowing a supplemental assessment on personal property when
personal property has been omitted from the recordbooks; and
exempting farm equipment and livestock from personal property
taxation.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Senate Bill No. 538, as amended, was then put upon
its passage.
On the passage of the bill, the yeas were: Bailey, Boley,
Bowman, Caldwell, Chafin, Deem, Dempsey, 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: Edgell--1.
Absent: None.
So, a majority of all the members elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 538) passed with its Senate amended title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Boley, Bowman,
Caldwell, Chafin, Deem, Dempsey, 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: Edgell--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. S.
B. No. 538) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 646, Authorizing creation of centers for
economic development and technology advancement; higher education
agreement.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That chapter eighteen-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article twelve-a; that article
one, chapter eighteen-c of said code be amended by adding thereto
a new section, designated section five; that section two, article five of said chapter be amended and reenacted; that section three,
article seven of said chapter be amended and reenacted; and that
article seven of said chapter be amended by adding thereto a new
section, designated section three-a, all to read as follows:
ARTICLE 12A. CENTERS FOR ECONOMIC DEVELOPMENT AND TECHNOLOGY
ADVANCEMENT.
§18B-12A-1. Legislative findings and purpose.
(a) The Legislature finds that economic development in West
Virginia depends in part on the effective and efficient management
of research grants and opportunities at doctoral institutions of
higher education, on collaborations developed between doctoral
institutions and businesses and industry and on the advancement and
commercialization of new and evolving technologies. It is in the
best interests of citizens of the state to develop programs which
promote these goals and contribute to the general economic welfare
of citizens. In order to enhance the competitive position of
doctoral institutions in the current environment for research and
economic development, expenditures for equipment and material for
research projects must be handled efficiently and effectively and
the acquisition and use of grant funds should be simplified and
expedited through the use of centers for economic development and
technology advancement.
(b) The purpose of this article is to provide a mechanism for doctoral institutions to enter into agreements with centers for
economic development and technology advancement to provide research
assistance; to provide maximum flexibility as to the form of
organization of centers so as to encourage and facilitate private
sector participation in and support of research and economic
development grants and opportunities in collaboration with doctoral
institutions; to expedite the acquisition, administration and
management of research and development grants and opportunities; to
provide technical assistance in the commercialization of research
opportunities; and to authorize doctoral institutions to contract
with centers organized for the purpose of providing these services.
§18B-12A-2. Definitions.
The following words used in this article have the meaning
ascribed to them in this section unless the context clearly
indicates a different meaning:
(a) "Agreement" means any
agreement or contractual relationship
being entered into between a doctoral institution and a center
pursuant to the provisions of this article.
(b) "Center" means a center for economic development and
technology advancement created
pursuant to section three of this
article.
(c) "Governing body" means the governing body of a center
created pursuant to the provisions of this article.
(d) "President" means the chief executive officer of a center
employed pursuant to section five of this article.
(e) "Doctoral institution" means a state institution of higher
education as defined in subsection (d), section one, article eight
of this chapter.
§18B-12A-3. Establishment of centers for economic development and
technology advancement; doctoral institutions authorized to
enter into agreements.
There is authorized the establishment of independent entities
to be known as centers for economic development and technology
advancement. Each center shall be formed with respect to a specific
doctoral institution and each center shall meet the following
conditions:
(1) Representatives from private sector business and industry
constitute a majority of the voting members of the governing body
of each center;
(2) The president of the appropriate doctoral institution or
a senior member of the doctoral institution's administrative staff
is a member of the appropriate governing body.
(3) Each center shall be organized as one of the following:
(A) A nonprofit, nonstock corporation under the general
corporation laws of the state exclusively for charitable,
educational or scientific purposes within the meaning of section 501(c) of the Internal Revenue Code of 1986, as amended; or
(B) A corporation, partnership, limited partnership, limited
liability company or other form of entity authorized to be formed
under this code.
§18B-12A-4. Powers and duties of governing bodies and centers.
The primary responsibility of each center is to
foster and
support economic development and the advancement and
commercialization of new and emerging technologies through
collaboration agreements between business-industry
and the
respective doctoral institution. To that end, the governing body
of each center has the following powers and duties:
(a) To adopt and amend, from time to time, a statement of
purpose and scope of operations. When the governing body amends the
purpose or scope of a center, the governing body shall advise the
appropriate doctoral institution of the changes;
(b) To employ a president subject to the provisions of section
five of this article;
(c) To approve employment of other staff recommended by the
president as being necessary and appropriate to carry out the
purpose and scope of the center;
(d)
To
serve as fiscal agent and provide additional services
including, but not limited to, evaluation of technology,
verification and assessment of market applications, grant administration and human resource management for any entity
associated with the doctoral institution
if the entity is engaged
in business-industry collaborations, technology advancement and
commercialization activities and research into new areas of economic
development.
(e)
To meet as a governing body: Provided, That centers
created under this article are exempt from the provisions of section
three, article nine-a, chapter six of this code and from the
provisions of article one, chapter twenty-nine-b of this code;
(f) To receive, purchase, hold, lease, use, sell and dispose
of real and personal property of all classes, including all kinds
of intellectual property, subject to the provisions of section ten
of this article;
(g) To receive and accept from any public or private agency,
corporation, association, person, partnership, company, or any other
organization or entity of any nature whatsoever, grants to be
expended in accomplishing the objectives of this article and to
receive and accept from the state, from any municipality, county or
other political subdivision of the state and from any other source,
aid or contributions of either money, property or other things of
value to be held, used and applied only for the purposes for which
the grants and contributions may be made;
(h) To accept and expend any gift, grant, contribution, bequest, endowment or other money for the purposes of this article
and to make a maximum effort to encourage external support for the
center's programs. Any transfer of endowment or other assets by the
doctoral institution to a center or by the center to the doctoral
institution for management or investment shall be formalized in a
memorandum of agreement to assure, at a minimum, that any
restrictions governing the future disposition of funds are
preserved;
(i) To make, amend and repeal bylaws and rules consistent with
the provisions of this article to carry into effect the purpose and
scope of the center and, subject to such directions and limitations
as may be contained in its governing documents, to delegate the
exercise of any of its powers to the president except for the power
to approve budgets; to make, amend or repeal its governing
documents; or to alter the purpose or scope of the center;
(j) In addition to the powers and duties provided for in this
section and any other powers and duties that may be assigned to it
by law or agreement, each center has such other powers and duties
as may be necessary or expedient to accomplish the objectives of
this article or as provided by law.
§18B-12A-5. Appointment of president; qualifications.
(a) The governing body of each center shall employ a president
who shall be the chief executive officer of the center and who shall serve at the will and pleasure of the governing body;
(b) The center shall be under the control and supervision of
the president who, with the approval of the governing body, may
employ staff as is necessary to carry out the center's purpose and
scope;
(c) The governing body shall set the qualifications for the
position of president and shall conduct a thorough search for
qualified candidates. A qualified candidate is one who meets at
least the following criteria:
(1) Possesses a broad understanding of the relationship between
public and private sector research, the advancement and
commercialization of new and emerging technologies and economic
development and has significant experience and an established
professional reputation in these fields;
(2) Holds, at a minimum, a bachelor's degree in a field related
to the duties and responsibilities of the position of president;
(3) Demonstrates specifically that he or she has developed
effective and successful grant management skills, as well as skill
in fostering collaborations between business-industry and doctoral
institutions;
(4) Demonstrates strong communication skills and the ability
to work with all types of businesses and industry, government
agencies and higher education institutions; and
(5) Possesses other skills, qualifications or attributes as the
governing body may consider appropriate or desirable.
§18B-12A-6. Agreements; required provisions.
(a) Notwithstanding section ten, article three, chapter twelve
of this code or any other provision of law to the contrary, each
doctoral institution is hereby authorized to enter into agreements
with one or more centers: Provided, That each center is formed with
respect to that specific doctoral institution and meets the
conditions set forth either in paragraph (A) or(B), subdivision (2),
section three of this article.
(b) Any agreement with a center shall benefit the doctoral
institution or one or more of its schools, departments or institutes
whose purpose is to further economic development, training,
education and technology research and development in its region.
(c) On the effective date of the agreement, the center is
charged with the responsibility of serving as fiscal agent for
specified sponsored projects conducted by the faculty, staff and
students of the doctoral institution pursuant to terms of the
agreement and grants shall be accepted by the center on behalf of
the doctoral institution and assigned to the center for fiscal
management.
(d) If an agreement is terminated, the funds, contributions or
grants paid or held by the center and not encumbered or committed prior to termination shall be distributed as provided for in the
agreement.
(e)
If part of the agreement, a center may utilize both center
employees and personnel of the doctoral institution. The center may
pay the costs incurred by the doctoral institution, including
personnel funded on grants and contracts, fringe benefits of
personnel funded on grants and contracts, administrative support
costs and other costs which may require reimbursement. The center
may include as costs any applicable overhead and fringe benefit
assessments necessary to recover the costs expended by the doctoral
institution, pursuant to the terms of the agreement, and the
doctoral institution may be reimbursed for expenses incurred by it
pursuant to the agreement.
§18B-12A-7. Audit.
The operations of the center are subject to an audit by an
independent auditor.
§18B-12A-8. Conflicts of interest.
Notwithstanding any other provision of this code to the
contrary, officers and employees of a governing board and the
affected doctoral institution may hold appointments to offices of
the center and be members of its governing body or officers or
employees of other entities contracting with either the center or
a governing board of a doctoral institution. The governing body shall make an annual report of these appointments
to the doctoral
institution.
§18B-12A-9. No waiver of sovereign immunity.
Nothing contained in this article may be construed to waive or
abrogate in any way the sovereign immunity of the state or to
deprive the governing board of a doctoral institution, a doctoral
institution or any officer or employee of a doctoral institution of
sovereign immunity.
§18B-12A-10. Not obligation of the state.
Obligations of a governing body or its center do not constitute
debts or obligations of a doctoral institution, the governing board
of a doctoral institution or the state.
§18B-12A-11. Report to joint commission on economic development.
Each doctoral institution shall report annually to the joint
commission on economic development established pursuant to section
two, article three, chapter five-b of this code on economic
development and technology advancement and commercialization
activities of any center or centers associated with the doctoral
institution. This report shall be made to the joint commission no
later than the thirty-first day of December of each year.
ARTICLE 1. FINANCIAL ASSISTANCE GENERALLY.
§18C-1-5. Funding priority.
The Legislature finds that student financial aid is of great importance to the welfare of the citizens of the state, is a
valuable economic development resource to the state and has priority
over funding necessities in circumstances requiring budget
reductions to any institution or commission of higher education.
When budget reductions to higher education funds are required, each
entity shall strive to maintain the current levels of student
financial aid, and may not reduce the student financial aid funding
level appropriated by the Legislature prior to reducing all other
appropriations to higher education funds except those higher
education funds which appropriate debt service. If reduced, a
financial aid appropriation shall be reduced in a proportion lesser
than that of other spending accounts.
ARTICLE 5. HIGHER EDUCATION GRANT PROGRAM.
§18C-5-2. Definitions.
(a) "Approved institution of higher education" means: A state
institution of higher education as defined in section two, article
one, chapter eighteen-b of this code;
and Alderson-Broaddus college,
Appalachian Bible college, Bethany college, the college of West
Virginia, Davis and Elkins college, Ohio Valley college,
Salem-Teikyo college, the university of Charleston, West Virginia
Wesleyan college and Wheeling Jesuit college, all in West Virginia;
and any other regionally or nationally accredited institution of
higher education in this state, public or private, approved by the senior administrator.
(b) "Grant" or "grant program" means a grant or the grant
program authorized and established by the provisions of this
article.
(c) "Senior administrator" means the senior administrator
defined vice chancellor for administration, as provided in section
two, article one, chapter eighteen-b of this code.
ARTICLE 7. WEST VIRGINIA PROVIDING REAL OPPORTUNITIES FOR
MAXIMIZING IN-STATE STUDENT EXCELLENCE SCHOLARSHIP PROGRAM.
§18C-7-3. Definitions.
(a) "Eligible institution" means:
(1) A state institution of higher education as is defined in
section two, article one, chapter eighteen-b of this code;
(2) Alderson-Broaddus college, Appalachian Bible college,
Bethany college, the college of West Virginia, Davis and Elkins
college, Ohio Valley college, Salem international university, the
university of Charleston, West Virginia Wesleyan college and
Wheeling Jesuit university, all in West Virginia. Provided, That
If any institution listed in this subdivision is not regionally
accredited, it shall may not be included as an eligible institution;
or
(3) Any other regionally or nationally accredited institution
in this state, public or private, approved by the board; or
_____(4) Any allied health or hospital-based training program in the
state that leads to state licensure.
(b) "Board" means the West Virginia PROMISE scholarship board
of control of the West Virginia PROMISE scholarship program as
provided for in section four of this article.
(c) "Tuition" means the quarter, semester or term charges
imposed by a state institution of higher education and all mandatory
fees required as a condition of enrollment by all students.
§18C-7-3a. Award eligibility for students in certain programs.
(a) Any eligible applicant who declined a PROMISE scholarship
award in the two thousand two--two thousand three academic year
shall receive an award in the two thousand three--two thousand four
academic year if that student:
(1) Attended an allied health or hospital-based training
program in the state that leads to state licensure;
(2) Has not completed the training program; and
(3) Meets the continuing eligibility requirements of the
scholarship program
.
(b) The continuing eligibility requirements of the scholarship
program apply to subsequent awards of any student receiving an award
pursuant to this section.;
And,
On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 646--A Bill to amend chapter eighteen-b
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, by adding thereto a new article, designated article
twelve-a; to amend article one, chapter eighteen-c of said code by
adding thereto a new section, designated section five; to amend and
reenact section two, article five of said chapter; to amend and
reenact section three, article seven of said chapter; and to amend
article seven of said chapter by adding thereto a new section,
designated section three-a, all relating to higher education;
centers for economic development and technology advancement
generally; student financial aid; findings and purpose; definitions;
authorizing doctoral institutions to enter into agreements with
centers; setting forth requirements for governing bodies; powers and
duties of governing bodies; providing for appointment of president;
qualifications; powers and duties of president; authorizing
agreements; terms and conditions; authorizing audit of center
operations; clarifying issues of conflicts of interest; prohibiting
waiver of sovereign immunity; and clarifying issues of debt
obligations of centers; student financial aid; expanding definition
of "eligible institution"; award eligibility in certain
circumstances; and establishing funding priority for student
financial aid in certain circumstances.
On motion of Senator Plymale, the following amendments to the
House of Delegates amendments to the bill were reported by the
Clerk, considered simultaneously, and adopted:
On pages ten and eleven, by striking out all of section eleven;
On page eleven, by striking out all of section five;
On pages eleven and twelve, by striking out all of section two,
and inserting in lieu thereof a new section two, to read as follows:
§18C-5-2. Definitions.
(a) "Approved institution of higher education" means:
(1) A state institution of higher education as defined in
section two, article one, chapter eighteen-b of this code;
and
Alderson-Broaddus college, Appalachian Bible college, Bethany
college, the college of West Virginia, Davis and Elkins college,
Ohio Valley college, Salem-Teikyo college, the university of
Charleston, West Virginia Wesleyan college and Wheeling Jesuit
college, all in West Virginia; and
(2) Any other regionally or nationally accredited institution
of higher education in this state, public or private, approved by
the senior administrator vice chancellor for administration if the
institution has been licensed for a minimum of fifteen years subject
to the provisions of section five, article three of this chapter and
section four, article one-b of this chapter.
(b) "Grant" or "grant program" means a grant or the grant program authorized and established by the provisions of this
article.
(c) "Senior administrator" means the senior administrator
defined vice chancellor for administration, as provided in section
two, article one, chapter eighteen-b of this code.
;
On page twelve, by striking out the article heading;
On pages twelve through fourteen, by striking out all of
sections three and three-a;
On page two, by striking out the enacting section and inserting
in lieu thereof a new enacting section, to read as follows:
That chapter eighteen-b of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by adding
thereto a new article, designated article twelve-a; that article
one, chapter eighteen-c of said code be amended by adding thereto
a new section, designated section five; and that section two,
article five of said chapter be amended and reenacted, all to read
as follows:;
And,
On pages
one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 646--A Bill to
amend chapter eighteen-b
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, by adding thereto a new article, designated article twelve-a; and to amend and reenact section two, article five of said
chapter, all relating to higher education; centers for economic
development and technology advancement generally; student financial
aid; findings and purpose; definitions; authorizing doctoral
institutions to enter into agreements with centers; setting forth
requirements for governing bodies; powers and duties of governing
bodies; providing for appointment of president; qualifications;
powers and duties of president; authorizing agreements; terms and
conditions; authorizing audit of center operations; clarifying
issues of conflicts of interest; prohibiting waiver of sovereign
immunity; clarifying issues of debt obligations of centers; student
financial aid; expanding definition of "eligible institution" for
purposes of higher education grant program; and establishing funding
priority for student financial aid in certain circumstances.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Senate Bill No. 646, as amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. S.
B. No. 646) passed with its Senate amended 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. S.
B. No. 646) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
At the request of Senator Plymale, unanimous consent being
granted, Senator Plymale addressed the Senate regarding the passage
of Engrossed Senate Bill No. 646.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, to take effect from passage, and requested
the concurrence of the Senate in the House of Delegates amendments,
as to
Eng. Senate Bill No. 547, Relating to judges and justices and
judicial retirement.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On
page two, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section four, article nine, chapter fifty-one of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
ARTICLE 9. RETIREMENT SYSTEM FOR JUDGES OF COURTS OF RECORD.
§51-9-4. Required percentage contributions from salaries; any
termination of required contributions prior to actual
retirement disallowed; leased employees; military service
credit; maximum allowable and qualified military service;
qualifiable prosecutorial service.
(a) Every person who is now serving or shall hereafter serve as a judge of any court of record of this state shall pay into the
judges' retirement fund six percent of the salary received by such
person him or her out of the state treasury: Provided, That when
a judge becomes eligible to receive benefits from such the trust
fund by actual retirement, no further payment by him or her shall
be required, since such the employee contribution, in an equal
treatment sense, ceases to be required in the other retirement
systems of the state, also, only after actual retirement: Provided,
however, That on and after the first day of January, one thousand
nine hundred ninety-five, every person who is then serving or shall
thereafter serve as a judge of any court of record in this state
shall pay into the judges' retirement fund nine percent of the
salary received by that person him or her. Any prior occurrence or
practice to the contrary, in any way allowing discontinuance of
required employee contributions prior to actual retirement under
this retirement system, is rejected as erroneous and contrary to
legislative intent and as violative of required equal treatment and
is hereby nullified and discontinued fully, with the state auditor
to require such contribution in every instance hereafter, except
where no contributions are required to be made under any of the
provisions of this article.
(b) An individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this system, a "leased employee" means any individual who performs services as
an independent contractor or pursuant to an agreement with an
employee leasing organization or other similar organization. If a
question arises regarding the status of an individual as a leased
employee, the board has the final power to decide the question.
(c) In drawing warrants for the salary checks of judges, the
state auditor shall deduct from the amount of each such salary check
six percent thereof, which amount so deducted shall be credited by
the consolidated public retirement board to the trust fund:
Provided, That on or after the first day of January, one thousand
nine hundred ninety-five, the amount so deducted and credited shall
be nine percent of each such salary check.
(d) Any judge seeking to qualify military service to be claimed
as credited service, in allowable aggregate maximum amount up to
five years, shall be entitled to be awarded the same without any
required payment in respect thereof to the judges' retirement fund.
(e) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to qualified
military service shall be provided in accordance with Section 414(u)
of the Internal Revenue Code. For purposes of this section,
"qualified military service" has the same meaning as in Section
414(u) of the Internal Revenue Code. The retirement board is
authorized to determine all questions and make all decisions relating to this section and may promulgate rules relating to
contributions, benefits and service credit pursuant to the authority
granted to the retirement board in section one, article ten-d,
chapter five of this code to comply with Section 414(u) of the
Internal Revenue Code.
(f) Any judge holding office as such on the effective date of
the amendments to this article adopted by the Legislature at its
regular session in the year one thousand nine hundred eighty-seven,
who seeks to qualify service as a prosecuting attorney as credited
service, which service credit must have been earned prior to the
year one thousand nine hundred eighty-seven, shall be required to
pay into the judges' retirement fund nine percent of the annual
salary which was actually received by such person him or her as
prosecuting attorney during the time such prosecutorial service was
rendered prior to the year one thousand nine hundred eighty-seven,
and for which credited service is being sought, together with
applicable interest: Provided, That for the purposes of this
section, prosecutorial service includes service as an elected,
appointed or assistant prosecuting attorney: Provided, however,
That no more than six years as an assistant prosecuting attorney may
be included as credited service pursuant to this subsection. No
judge whose term of office shall commence after the effective date
of such the amendments to this article shall be eligible to claim any credit for service rendered as a prosecuting attorney as
eligible service for retirement benefits under this article, nor
shall any time served as a prosecutor after the year one thousand
nine hundred eighty-eight be considered as eligible service for any
purposes of this article.
(g) The Legislature finds that any increase in salary for
judges of courts of record directly affects the actuarial soundness
of the retirement system for judges of courts of record and,
therefore, an increase in the required percentage contributions of
members of that retirement system is the same subject for purposes
of determining the single object of this bill.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 547--A Bill to amend and reenact section
four, article nine, chapter fifty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, relating to
clarifying that for judicial retirement purposes, prosecutorial
service includes certain time served as an elected or appointed
prosecuting attorney or assistant prosecuting attorney.
At the request of Senator Helmick, and by unanimous consent,
Senator Helmick offered the following amendments to the House of
Delegates amendments to the bill prior to the consideration of Senator Unger's amendment now lodged with the Clerk.
Following a point of inquiry to the President, with resultant
response thereto,
On motion of Senator Helmick, the following amendments to the
House of Delegates amendments to the bill were reported by the
Clerk:
On page one, after the enacting section, by inserting the
following:
ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.
§51-2-1. Judicial circuits; terms of office; legislative findings
and declarations; elections; terms of court.
(a) The state shall be divided into the following judicial
circuits with the following number of judges:
The counties of Brooke, Hancock and Ohio shall constitute the
first circuit and shall have four judges; the counties of Marshall,
Tyler and Wetzel shall constitute the second circuit and shall have
two judges; the counties of Doddridge, Pleasants and Ritchie shall
constitute the third circuit and shall have one judge; the counties
of Wood and Wirt shall constitute the fourth circuit and shall have
three judges; the counties of Calhoun, Jackson, Mason and Roane
shall constitute the fifth circuit and shall have two judges; the
county of Cabell shall constitute the sixth circuit and shall have
four judges; the county of Logan shall constitute the seventh circuit and shall have two judges; the county of McDowell shall
constitute the eighth circuit and shall have two judges; the county
of Mercer shall constitute the ninth circuit and shall have two
judges; the county of Raleigh shall constitute the tenth circuit and
shall have three judges; the counties of Greenbrier and Pocahontas
shall constitute the eleventh circuit and shall have two judges; the
county of Fayette shall constitute the twelfth circuit and shall
have two judges; the county of Kanawha shall constitute the
thirteenth circuit and shall have seven judges; the counties of
Braxton, Clay, Gilmer and Webster shall constitute the fourteenth
circuit and shall have two judges; the county of Harrison shall
constitute the fifteenth circuit and shall have three judges; the
county of Marion shall constitute the sixteenth circuit and shall
have two judges; the county of Monongalia shall constitute the
seventeenth circuit and shall have two judges; the county of Preston
shall constitute the eighteenth circuit and shall have one judge;
the counties of Barbour and Taylor shall constitute the nineteenth
circuit and shall have one judge; the county of Randolph shall
constitute the twentieth circuit and shall have one judge; the
counties of Grant, Mineral and Tucker shall constitute the twenty-
first circuit and shall have two judges; the counties of Hampshire,
Hardy and Pendleton shall constitute the twenty-second circuit and
shall have one judge; the counties of Berkeley, Jefferson and Morgan shall constitute the twenty-third circuit and shall have four
judges; the county of Wayne shall constitute the twenty-fourth
circuit and shall have one judge; the counties of Lincoln and Boone
shall constitute the twenty-fifth circuit and shall have two judges;
the counties of Lewis and Upshur shall constitute the twenty-sixth
circuit and shall have one judge; the county of Wyoming shall
constitute the twenty-seventh circuit and shall have one judge; the
county of Nicholas shall constitute the twenty-eighth circuit and
shall have one judge; the county of Putnam shall constitute the
twenty-ninth circuit and shall have two judges; the county of Mingo
shall constitute the thirtieth circuit and shall have one judge two
judges; and the counties of Monroe and Summers shall constitute the
thirty-first circuit and shall have one judge: Provided, That the
Kanawha County circuit court shall be a court of concurrent
jurisdiction with each single judge circuit where the sitting judge
in such single judge circuit is unavailable by reason of sickness,
vacation or other reason.
(b) Any judge in office on the effective date of the
reenactment of this section shall continue as a judge of the circuit
as constituted under prior enactments of this section, unless sooner
removed or retired as provided by law, until the thirty-first day
of December, two thousand.
(c) The term of office of all circuit court judges shall be for eight years. The term of office for all circuit court judges
elected during the general election conducted in the year two
thousand shall commence on the first day of January, two thousand
one, and end on the thirty-first day of December, two thousand
eight.
(d) Beginning with the primary and general elections to be
conducted in the year one thousand nine hundred ninety-two, in all
judicial circuits having two or more judges there shall be, for
election purposes, numbered divisions corresponding to the number
of circuit judges in each circuit. Each judge shall be elected at
large from the entire circuit. In each numbered division of a
judicial circuit, the candidates for nomination or election shall
be voted upon and the votes cast for the candidates in each division
shall be tallied separately from the votes cast for candidates in
other numbered divisions within the circuit. The candidate
receiving the highest number of the votes cast within a numbered
division shall be nominated or elected, as the case may be:
Provided, That beginning with the primary and general elections to
be conducted in the year two thousand, judges serving a judicial
circuit comprised of four or more counties with two or more judges,
shall not be residents of the same county.
(e) The supreme court shall, by rule, establish the terms of
court of circuit judges.;
And,
On page one, by striking out everything after the article
heading and inserting in lieu thereof the following:
§51-9-4. Required percentage contributions from salaries; any
termination of required contributions prior to actual
eligibility for retirement disallowed; leased employees;
military service credit; maximum allowable and qualified
military service; qualifiable prosecutorial service.
(a) Every person who is now serving or shall hereafter serve
as a judge of any court of record of this state shall pay into the
judges' retirement fund six percent of the salary received by such
person out of the state treasury: Provided, That when a judge
becomes eligible to receive benefits from such trust fund by actual
retirement, no further payment by him or her shall be required,
since such employee contribution, in an equal treatment sense,
ceases to be required in the other retirement systems of the state,
also, only after actual retirement: Provided, however, That on and
after the first day of January, one thousand nine hundred
ninety-five, every person who is then serving or shall thereafter
serve as a judge of any court of record in this state shall pay into
the judges' retirement fund nine percent of the salary received by
that person. Any prior occurrence or practice to the contrary, in
any way allowing discontinuance of required employee contributions prior to actual eligibility for retirement under this retirement
system, is rejected as erroneous and contrary to legislative intent
and as violative of required equal treatment and is hereby nullified
and discontinued fully, with the state auditor to require such
contribution in every instance hereafter, except where no
contributions are required to be made under any of the provisions
of this article. Notwithstanding any other provision of this
chapter, a judge or justice holding office on the thirty-first day
of December, one thousand nine hundred eighty-six, and who has
served less than twelve full years as judge or justice and who
subsequently becomes eligible to receive benefits from the trust
fund because of accumulation of twenty-four years of credited
service, which service includes twelve full years of actual service
as a judge or justice, properly accredited military time as defined
in this section and prosecutor's time as defined in this section,
then that judge or justice may not be required to make further
contributions to the trust fund.
(b) An individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this system,
a "leased employee" means any individual who performs services as
an independent contractor or pursuant to an agreement with an
employee leasing organization or other similar organization. If a
question arises regarding the status of an individual as a leased employee, the board has the final power to decide the question.
(c) In drawing warrants for the salary checks of judges, the
state auditor shall deduct from the amount of each such salary check
six percent thereof, which amount so deducted shall be credited by
the consolidated public retirement board to the trust fund:
Provided, That on or after the first day of January, one thousand
nine hundred ninety-five, the amount so deducted and credited shall
be nine percent of each such salary check.
(d) Any judge seeking to qualify military service to be claimed
as credited service, in allowable aggregate maximum amount up to
five years, shall be entitled to be awarded the same without any
required payment in respect thereof to the judges' retirement fund.
(e) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to qualified
military service shall be provided in accordance with Section 414(u)
of the Internal Revenue Code. For purposes of this section,
"qualified military service" has the same meaning as in Section
414(u) of the Internal Revenue Code. The retirement board is
authorized to determine all questions and make all decisions
relating to this section and may promulgate rules relating to
contributions, benefits and service credit pursuant to the authority
granted to the retirement board in section one, article ten-d,
chapter five of this code to comply with Section 414(u) of the Internal Revenue Code.
(f) Any judge holding office as such on the effective date of
the amendments to this article adopted by the Legislature at its
regular session in the year one thousand nine hundred eighty-seven
who seeks to qualify service as a prosecuting attorney as credited
service, which service credit must have been earned prior to the
year one thousand nine hundred eighty-seven, shall be required to
pay into the judges' retirement fund nine percent of the annual
salary which was actually received by such person as prosecuting
attorney during the time such prosecutorial service was rendered
prior to the year one thousand nine hundred eighty-seven, and for
which credited service is being sought, together with applicable
interest: Provided, That for the purposes of this section,
prosecuting time includes time served as an elected or appointed
prosecuting attorney and not more than six years as an assistant
prosecuting attorney. No judge whose term of office shall commence
after the effective date of such amendments to this article shall
be eligible to claim any credit for service rendered as a
prosecuting attorney as eligible service for retirement benefits
under this article, nor shall Except as otherwise provided herein,
any time served as a prosecutor after the year one thousand nine
hundred eighty-eight may not be considered as eligible service for
any purposes of this article.
(g) The Legislature finds that any increase in salary for
judges of courts of record directly affects the actuarial soundness
of the retirement system for judges of courts of record and,
therefore, an increase in the required percentage contributions of
members of that retirement system is the same subject for purposes
of determining the single object of this bill.
Senator Unger then requested a division of the question
contained in the foregoing amendments offered by Senator Helmick.
The President then stated that, without objection, the question
would be divided; and the body would first vote on Senator Helmick's
amendment to the House of Delegates amendments to the bill (Eng. S.
B. No. 547) as follows:
On page one, after the enacting section, by inserting the
following:
ARTICLE 2. CIRCUIT COURTS; CIRCUIT JUDGES.
§51-2-1. Judicial circuits; terms of office; legislative findings
and declarations; elections; terms of court.
(a) The state shall be divided into the following judicial
circuits with the following number of judges:
The counties of Brooke, Hancock and Ohio shall constitute the
first circuit and shall have four judges; the counties of Marshall,
Tyler and Wetzel shall constitute the second circuit and shall have
two judges; the counties of Doddridge, Pleasants and Ritchie shall constitute the third circuit and shall have one judge; the counties
of Wood and Wirt shall constitute the fourth circuit and shall have
three judges; the counties of Calhoun, Jackson, Mason and Roane
shall constitute the fifth circuit and shall have two judges; the
county of Cabell shall constitute the sixth circuit and shall have
four judges; the county of Logan shall constitute the seventh
circuit and shall have two judges; the county of McDowell shall
constitute the eighth circuit and shall have two judges; the county
of Mercer shall constitute the ninth circuit and shall have two
judges; the county of Raleigh shall constitute the tenth circuit and
shall have three judges; the counties of Greenbrier and Pocahontas
shall constitute the eleventh circuit and shall have two judges; the
county of Fayette shall constitute the twelfth circuit and shall
have two judges; the county of Kanawha shall constitute the
thirteenth circuit and shall have seven judges; the counties of
Braxton, Clay, Gilmer and Webster shall constitute the fourteenth
circuit and shall have two judges; the county of Harrison shall
constitute the fifteenth circuit and shall have three judges; the
county of Marion shall constitute the sixteenth circuit and shall
have two judges; the county of Monongalia shall constitute the
seventeenth circuit and shall have two judges; the county of Preston
shall constitute the eighteenth circuit and shall have one judge;
the counties of Barbour and Taylor shall constitute the nineteenth circuit and shall have one judge; the county of Randolph shall
constitute the twentieth circuit and shall have one judge; the
counties of Grant, Mineral and Tucker shall constitute the twenty-
first circuit and shall have two judges; the counties of Hampshire,
Hardy and Pendleton shall constitute the twenty-second circuit and
shall have one judge; the counties of Berkeley, Jefferson and Morgan
shall constitute the twenty-third circuit and shall have four
judges; the county of Wayne shall constitute the twenty-fourth
circuit and shall have one judge; the counties of Lincoln and Boone
shall constitute the twenty-fifth circuit and shall have two judges;
the counties of Lewis and Upshur shall constitute the twenty-sixth
circuit and shall have one judge; the county of Wyoming shall
constitute the twenty-seventh circuit and shall have one judge; the
county of Nicholas shall constitute the twenty-eighth circuit and
shall have one judge; the county of Putnam shall constitute the
twenty-ninth circuit and shall have two judges; the county of Mingo
shall constitute the thirtieth circuit and shall have one judge two
judges; and the counties of Monroe and Summers shall constitute the
thirty-first circuit and shall have one judge: Provided, That the
Kanawha County circuit court shall be a court of concurrent
jurisdiction with each single judge circuit where the sitting judge
in such single judge circuit is unavailable by reason of sickness,
vacation or other reason.
(b) Any judge in office on the effective date of the
reenactment of this section shall continue as a judge of the circuit
as constituted under prior enactments of this section, unless sooner
removed or retired as provided by law, until the thirty-first day
of December, two thousand.
(c) The term of office of all circuit court judges shall be for
eight years. The term of office for all circuit court judges
elected during the general election conducted in the year two
thousand shall commence on the first day of January, two thousand
one, and end on the thirty-first day of December, two thousand
eight.
(d) Beginning with the primary and general elections to be
conducted in the year one thousand nine hundred ninety-two, in all
judicial circuits having two or more judges there shall be, for
election purposes, numbered divisions corresponding to the number
of circuit judges in each circuit. Each judge shall be elected at
large from the entire circuit. In each numbered division of a
judicial circuit, the candidates for nomination or election shall
be voted upon and the votes cast for the candidates in each division
shall be tallied separately from the votes cast for candidates in
other numbered divisions within the circuit. The candidate
receiving the highest number of the votes cast within a numbered
division shall be nominated or elected, as the case may be: Provided, That beginning with the primary and general elections to
be conducted in the year two thousand, judges serving a judicial
circuit comprised of four or more counties with two or more judges,
shall not be residents of the same county.
(e) The supreme court shall, by rule, establish the terms of
court of circuit judges.
The question being on the adoption of Senator Helmick's
amendment to the House of Delegates amendments to the bill, the same
was put.
Senator Unger arose to a point of order that Senator Helmick's
amendment to the House of Delegates amendments was not germane to
the bill (Eng. S. B. No. 547).
Which point of order, the President ruled not well taken.
The question being on the adoption of Senator Helmick's
amendment to the House of Delegates amendments to the bill, and on
this question Senator Unger demanded the yeas and nays.
To which demand, Senator Chafin objected.
Thereafter, Senator Unger's demand for a roll call was
sustained.
The roll being taken, the yeas were: Bailey, Caldwell, Chafin,
Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Kessler, Love,
Minard, Ross, Smith, Snyder, White and Tomblin (Mr. President)--17.
The nays were: Boley, Bowman, Guills, Harrison, Hunter, Jenkins, McCabe, McKenzie, Minear, Oliverio, Plymale, Prezioso,
Rowe, Sharpe, Sprouse, Unger and Weeks--17.
Absent: None.
So, a majority of those present and voting not having voted in
the affirmative, the President declared Senator Helmick's amendment
to the House of Delegates amendments to the bill rejected on a tie
vote.
The question now being on the adoption of Senator Helmick's
second amendment to the House of Delegates amendments to the bill
(Eng. S. B. No. 547) as follows:
On page one, by striking out everything after the article
heading and inserting in lieu thereof the following:
§51-9-4. Required percentage contributions from salaries; any
termination of required contributions prior to actual
eligibility for retirement disallowed; leased employees;
military service credit; maximum allowable and qualified
military service; qualifiable prosecutorial service.
(a) Every person who is now serving or shall hereafter serve
as a judge of any court of record of this state shall pay into the
judges' retirement fund six percent of the salary received by such
person out of the state treasury: Provided, That when a judge
becomes eligible to receive benefits from such trust fund by actual
retirement, no further payment by him or her shall be required, since such employee contribution, in an equal treatment sense,
ceases to be required in the other retirement systems of the state,
also, only after actual retirement: Provided, however, That on and
after the first day of January, one thousand nine hundred
ninety-five, every person who is then serving or shall thereafter
serve as a judge of any court of record in this state shall pay into
the judges' retirement fund nine percent of the salary received by
that person. Any prior occurrence or practice to the contrary, in
any way allowing discontinuance of required employee contributions
prior to actual eligibility for retirement under this retirement
system, is rejected as erroneous and contrary to legislative intent
and as violative of required equal treatment and is hereby nullified
and discontinued fully, with the state auditor to require such
contribution in every instance hereafter, except where no
contributions are required to be made under any of the provisions
of this article. Notwithstanding any other provision of this
chapter, a judge or justice holding office on the thirty-first day
of December, one thousand nine hundred eighty-six, and who has
served less than twelve full years as judge or justice and who
subsequently becomes eligible to receive benefits from the trust
fund because of accumulation of twenty-four years of credited
service, which service includes twelve full years of actual service
as a judge or justice, properly accredited military time as defined in this section and prosecutor's time as defined in this section,
then that judge or justice may not be required to make further
contributions to the trust fund.
(b) An individual who is a leased employee shall not be
eligible to participate in the system. For purposes of this system,
a "leased employee" means any individual who performs services as
an independent contractor or pursuant to an agreement with an
employee leasing organization or other similar organization. If a
question arises regarding the status of an individual as a leased
employee, the board has the final power to decide the question.
(c) In drawing warrants for the salary checks of judges, the
state auditor shall deduct from the amount of each such salary check
six percent thereof, which amount so deducted shall be credited by
the consolidated public retirement board to the trust fund:
Provided, That on or after the first day of January, one thousand
nine hundred ninety-five, the amount so deducted and credited shall
be nine percent of each such salary check.
(d) Any judge seeking to qualify military service to be claimed
as credited service, in allowable aggregate maximum amount up to
five years, shall be entitled to be awarded the same without any
required payment in respect thereof to the judges' retirement fund.
(e) Notwithstanding the preceding provisions of this section,
contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u)
of the Internal Revenue Code. For purposes of this section,
"qualified military service" has the same meaning as in Section
414(u) of the Internal Revenue Code. The retirement board is
authorized to determine all questions and make all decisions
relating to this section and may promulgate rules relating to
contributions, benefits and service credit pursuant to the authority
granted to the retirement board in section one, article ten-d,
chapter five of this code to comply with Section 414(u) of the
Internal Revenue Code.
(f) Any judge holding office as such on the effective date of
the amendments to this article adopted by the Legislature at its
regular session in the year one thousand nine hundred eighty-seven
who seeks to qualify service as a prosecuting attorney as credited
service, which service credit must have been earned prior to the
year one thousand nine hundred eighty-seven, shall be required to
pay into the judges' retirement fund nine percent of the annual
salary which was actually received by such person as prosecuting
attorney during the time such prosecutorial service was rendered
prior to the year one thousand nine hundred eighty-seven, and for
which credited service is being sought, together with applicable
interest: Provided, That for the purposes of this section,
prosecuting time includes time served as an elected or appointed prosecuting attorney and not more than six years as an assistant
prosecuting attorney. No judge whose term of office shall commence
after the effective date of such amendments to this article shall
be eligible to claim any credit for service rendered as a
prosecuting attorney as eligible service for retirement benefits
under this article, nor shall Except as otherwise provided herein,
any time served as a prosecutor after the year one thousand nine
hundred eighty-eight may not be considered as eligible service for
any purposes of this article.
(g) The Legislature finds that any increase in salary for
judges of courts of record directly affects the actuarial soundness
of the retirement system for judges of courts of record and,
therefore, an increase in the required percentage contributions of
members of that retirement system is the same subject for purposes
of determining the single object of this bill.
The question being on the adoption of Senator Helmick's
amendment to the House of Delegates amendments to the bill, the same
was put.
The result of the voice vote being inconclusive, Senator
Helmick demanded a division of the vote.
A standing vote being taken, there were twenty-three "yeas" and
nine "nays".
Whereupon, Senator Tomblin (Mr. President) declared Senator Helmick's amendment to the House of Delegates amendments to the bill
adopted.
Senator Deem requested unanimous consent that further
consideration of the bill be deferred until the conclusion of House
messages now lodged with the Clerk.
Which consent was not granted, Senator Unger objecting.
Senator Deem then moved that further consideration of the bill
be deferred until the conclusion of House messages now lodged with
the Clerk.
The question being on the adoption of Senator Deem's
aforestated motion, the same was put.
The result of the voice vote being inconclusive, Senator Deem
demanded a division of the vote.
A standing vote being taken, there were twenty-two "yeas" and
nine "nays".
Whereupon, the President declared Senator Deem's aforestated
motion had prevailed.
Thereafter, further consideration of Engrossed Senate Bill No.
547 was deferred until the conclusion of House messages now lodged
with the Clerk.
A message from The Clerk of the House of Delegates announced
the amendment by that body, passage as amended with its House of
Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Senate Bill No. 657, Relating to capital company act.
On motion of Senator Chafin, the message on the bill was taken
up for immediate consideration.
The following House of Delegates amendments to the bill were
reported by the Clerk:
On page one, by striking out everything after the enacting
clause and inserting in lieu thereof the following:
That section eight, article one, chapter five-e of the code of
West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 1. WEST VIRGINIA CAPITAL COMPANY ACT.
§5E-1-8. Tax credits.
(a) The total amount of tax credits authorized for a single
qualified company may not exceed two million dollars.
Capitalization of the company may be increased pursuant to rule of
the authority.
(b) (1) The total credits authorized by the authority for all
companies may not exceed a total of ten million dollars each fiscal
year: Provided, That for the fiscal year beginning on the first day
of July, one thousand nine hundred ninety-nine, the total credits
authorized for all companies may not exceed a total of six million
dollars: Provided, however, That for the fiscal year beginning on the first day of July, two thousand, the total credits authorized
for all companies may not exceed a total of four million dollars:
Provided further, That for the fiscal year beginning on the first
day of July, two thousand one, the total credits authorized for all
companies may not exceed a total of four million dollars: And
provided further, That for the fiscal year beginning on the first
day of July, two thousand two, the total credits authorized for all
companies may not exceed a total of three million dollars: And
provided further, That for the fiscal year beginning on the first
day of July, two thousand three, the total credits authorized for
all companies may not exceed a total of three million dollars: And
provided further, That the capital base of any qualified company
shall be invested in accordance with the provisions of this article.
The authority shall allocate these credits to qualified companies
in the order that the companies are qualified.
(2) Not more than two million dollars of the credits allowed
under subdivision (1) of this subsection may be allocated by the
authority during each fiscal year to one or more small business
investment companies described in this subdivision. The remainder
of the tax credits allowed during the fiscal year shall be allocated
by the authority under the provisions of section four, article two
of this chapter. The portion of the tax credits allowed for small
business investment companies described in this subdivision shall be allowed only if allocated by the authority during the first
thirty days of the fiscal year, and may only be allocated to
companies that: (A) Were organized on or after the first day of
January, one thousand nine hundred ninety-nine; (B) are licensed by
the small business administration as a small business investment
company under the small business investment act; and (C) have
certified in writing to the authority on the application for credits
under this act that the company will diligently seek to obtain and
thereafter diligently seek to invest leverage available to the small
business investment companies under the small business investment
act. These credits shall be allocated by the authority in the order
that the companies are qualified. Any credits which have not been
allocated to qualified companies meeting the requirements of this
subdivision relating to small business investment companies during
the first thirty days of the fiscal year shall be made available and
allocated by the authority under the provisions of section four,
article two of this chapter.
(c) Any investor, including an individual, partnership, limited
liability company, corporation or other entity who makes a capital
investment in a qualified West Virginia capital company, is entitled
to a tax credit equal to fifty percent of the investment, except as
otherwise provided in this section or in this article. The credit
allowed by this article shall be taken after all other credits allowed by chapter eleven of this code. It shall be taken against
the same taxes and in the same order as set forth in subsections (c)
through (i), inclusive, section five, article thirteen-c, chapter
eleven of this code. The credit for investments by a partnership,
limited liability company, a corporation electing to be treated as
a subchapter S corporation or any other entity which is treated as
a pass through entity under federal and state income tax laws may
be divided pursuant to election of the entity's partners, members,
shareholders or owners.
(d) The tax credit allowed under this section is to be credited
against the taxpayer's tax liability for the taxable year in which
the investment in a qualified West Virginia capital company is made.
If the amount of the tax credit exceeds the taxpayer's tax liability
for the taxable year, the amount of the credit which exceeds the tax
liability for the taxable year may be carried to succeeding taxable
years until used in full, or until forfeited: Provided, That: (i)
Tax credits may not be carried forward beyond fifteen years; and
(ii) tax credits may not be carried back to prior taxable years.
Any tax credit remaining after the fifteenth taxable year is
forfeited.
(e) The tax credit provided for in this section is available
only to those taxpayers whose investment in a qualified West
Virginia capital company occurs after the first day of July, one thousand nine hundred eighty-six.
(f) The tax credit allowed under this section may not be used
against any liability the taxpayer may have for interest, penalties
or additions to tax.
(g) Notwithstanding any provision in this code to the contrary,
the tax commissioner shall publish in the state register the name
and address of every taxpayer and the amount, by category, of any
credit asserted under this article. The categories by dollar amount
of credit received are as follows:
(1) More than $1.00, but not more than $50,000;
(2) More than $50,000, but not more than $100,000;
(3) More than $100,000, but not more than $250,000;
(4) More than $250,000, but not more than $500,000;
(5) More than $500,000, but not more than $1,000,000; and
(6) More than $1,000,000.;
And,
On pages one and two, by striking out the title and
substituting therefor a new title, to read as follows:
Eng. Senate Bill No. 657--A Bill to amend and reenact section
eight, article one, chapter five-e of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to reducing
the total tax credits available under the capital company act during
the fiscal year beginning on the first day of July, two thousand three.
On motion of Senator Chafin, the Senate refused to concur in
the foregoing House amendments to the bill (Eng. S. B. No. 657) and
requested the House of Delegates to recede therefrom.
Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate and request concurrence therein.
Consideration of House messages having been concluded, the
Senate returned to the consideration of
Eng. Com. Sub. for Senate Bill No. 206, Authorizing aides to
supervise students in in-school suspensions; limitation.
Having been received as a message from the House of Delegates
in prior proceedings today (shown in the Senate Journal of today,
pages \\), and now coming up in deferred order, was again reported
by the Clerk.
On motion of Senator Plymale, the following amendments to the
House of Delegates amendments to the bill were reported by the
Clerk, considered simultaneously, and adopted:
On page fourteen, after section one, by adding the following:
§18-8-11. School attendance as condition of licensing for
privilege of operation of motor vehicle.
(a) In accordance with the provisions of sections three and
five, article two, chapter seventeen-b of this code, the division
of motor vehicles shall deny a license or instruction permit for the operation of a motor vehicle to any person under the age of eighteen
who does not at the time of application present a diploma or other
certificate of graduation issued to the person from a secondary high
school of this state or any other state or documentation that the
person: (1) Is enrolled and making satisfactory progress in a course
leading to a general educational development certificate (GED) from
a state approved institution or organization, or has obtained such
the certificate; (2) is enrolled in a secondary school of this state
or any other state; (3) is excused from such the requirement due to
circumstances beyond his or her control; or (4) is enrolled in an
institution of higher education as a full-time student in this state
or any other state.
(b) The attendance director or chief administrator shall
provide documentation of enrollment status on a form approved by the
department of education to any student fifteen years of age at least
fifteen but less than eighteen years of age or older upon request
who is properly enrolled in a school under the jurisdiction of the
official for presentation to the division of motor vehicles on
application for or reinstatement of an instruction permit or license
to operate a motor vehicle. Whenever a student at least fifteen
years of age but less than eighteen years of age withdraws from
school, except as provided in subsection (d) of this section, the
attendance director or chief administrator shall notify the division of motor vehicles of the withdrawal not later than five days from
the withdrawal date. Within five days of receipt of the notice, the
division of motor vehicles shall send notice to the licensee that
the license will be suspended under the provisions of section three,
article two, chapter seventeen-b of this code on the thirtieth day
following the date the notice was sent unless documentation of
compliance with the provisions of this section is received by the
division of motor vehicles before such that time. If suspended, the
division may not reinstate a license before the end of the semester
following that in which the withdrawal occurred.
(c) For the purposes of this section:
(1) Withdrawal shall be is defined as more than ten consecutive
or fifteen days total days unexcused absences during a school year;
for the purposes of this section
(2) Suspension or expulsion from school or imprisonment in a
jail or a penitentiary West Virginia correctional facility is not
a circumstance beyond the control of such the person.
(d) Whenever the withdrawal from school of such the student,
or such the student's failure to enroll in a course leading to or
to obtain a GED or high school diploma, is beyond the control of
such the student, or is for the purpose of transfer to another
school as confirmed in writing by the student's parent or guardian,
no such notice shall be sent to the division of motor vehicles to suspend the student's motor vehicle operator's license, and if the
student is applying for a license, the attendance director or chief
administrator shall provide the student with documentation to
present to the division of motor vehicles to excuse the student from
the provisions of this section. The school district superintendent
(or the appropriate school official of any private secondary school)
with the assistance of the county attendance director and any other
staff or school personnel shall be the sole judge of whether such
withdrawal is due to circumstances beyond the control of such the
person.
CHAPTER 18A. SCHOOL PERSONNEL.
ARTICLE 5. AUTHORITY; RIGHTS; RESPONSIBILITY.
§18A-5-8. Authority of certain aides to exercise control over
pupils; compensation; transfers.
(a) Within the limitations provided herein in this section, any
aide who agrees to do so shall stand in the place of the parent or
guardian and shall exercise such authority and control over pupils
as is required of a teacher as defined and provided in section one
of this article. The principal shall designate aides in the school
who agree to exercise that authority on the basis of seniority as
an aide and shall enumerate the instances in which the authority
shall be exercised by an aide when requested by the principal,
assistant principal or professional employee to whom the aide is assigned.
(b) Provided, That the The authority does provided for in
subsection (a) of this section may not extend to suspending or
expelling any pupil, participating in the administration of corporal
punishment or performing instructional duties as a teacher or
substitute teacher. However, the authority shall extend to
supervising students undergoing in-school suspension if the
instructional duties required by the supervision are limited solely
to handing out class work and collecting class work. The authority
to supervise students undergoing in-school suspension may not
include actual instruction.
_____(c) An aide designated by the principal under this subsection
(a) of this section shall receive a salary not less than one pay
grade above the highest pay grade held by the employee under section
eight-a, article four of this chapter and any county salary schedule
in excess of the minimum requirements of this article.
(b) (d) An aide may not be required by the operation of this
section to perform noninstructional duties for an amount of time
which exceeds that required under the aide's contract of employment
or that required of other aides in the same school unless the
assignment of such the duties is mutually agreed upon by the aide
and the county superintendent, or the superintendent's designated
representative, subject to board approval. The terms and conditions of the agreement shall be in writing, signed by both parties, and
may include additional benefits. The agreement shall be uniform as
to aides assigned similar duties for similar amounts of time within
the same school. Aides shall have the option of agreeing to
supervise students and of renewing related assignments annually.
Provided, That should If an aide elect elects not to renew the
previous agreement to supervise students, the minimum salary of the
aide shall revert to the pay grade specified in section eight-a,
article four of this chapter for the classification title held by
the aide and any county salary schedule in excess of the minimum
requirements of this article.
(c) (e) For the purposes of this section, aide shall mean and
include means any aide class title as defined in section eight,
article four of this chapter regardless of numeric classification.
(d) (f) An aide may transfer to another position of employment
one time only during any one half of a school term, unless otherwise
mutually agreed upon by the aide and the county superintendent, or
the superintendent's designee, subject to board approval: Provided,
That during the first year of employment as an aide, an aide may not
transfer to another position of employment during the first one-half
school term of employment unless mutually agreed upon by the aide
and county superintendent, subject to board approval.
(e) (g) Regular service personnel employed in a category of employment other than aide who seek employment as an aide shall hold
a high school diploma or shall have received a general educational
development certificate and shall have the opportunity to receive
appropriate training pursuant to subsection (10), section thirteen,
article five, chapter eighteen of this code and section two, article
twenty of said chapter.
;
On page one, by striking out the enacting section and inserting
in lieu thereof a new enacting section, to read as follows:
That section one, article eight, chapter eighteen of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section eleven of said article be
amended and reenacted; and that section eight, article five, chapter
eighteen-a of said code be amended and reenacted, all to read as
follows:;
And,
On page
one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 206--
A Bill to amend and
reenact section one, article eight, chapter eighteen of the code of
West Virginia, one thousand nine hundred thirty-one, as amended; to
amend and reenact section eleven of said article; and to amend and
reenact section eight, article five, chapter eighteen-a of said
code, all relating to compulsory school attendance; technical amendments; home school exemption; amending requirements to qualify
for home school exemption; amending assessment requirements of home
school exemption; eliminating exemption relating to residence more
than two miles from school or school bus route; driver's license
privilege; conditions for obtaining license; denial and revocation;
limitation on reinstatement; and
authorizing aides to supervise
students who are undergoing in-school suspension.
On motion of Senator Chafin, the Senate concurred in the House
of Delegates amendments, as amended.
Engrossed Committee Substitute for Senate Bill No. 206, as
amended, was then 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 elected to the Senate having
voted in the affirmative, the President declared the bill (Eng. Com.
Sub. for S. B. No. 206) passed with its Senate amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
On motion of Senator Chafin, the Senate recessed for thirty
minutes.