__________*__________
Thursday, March 11, 2004
The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Wednesday, March 10, 2004, being the first order
of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
On motion for leave, a concurrent resolution was introduced (Originating in the Committee
on Rules and reported with the recommendation that it be adopted), which was read by its title, as
follows:
By Delegates Staton, Amores, Michael, Warner, Varner, Anderson and Kominar:
H. C. R. 88 - "Requesting the Joint Committee on Government and Finance to study
methods of improving access to physical therapy services in rural areas of West Virginia."
Whereas, Access to physical therapy services is a critical component to the delivery of
comprehensive healthcare in rural areas; and
Whereas, In many cases, rural areas of West Virginia are underserved by licensed physical
therapists and patients in these areas are unable to receive physical therapy services commensurate
with their needs; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Joint Committee on Government and Finance to
study methods of improving access to physical therapy services in rural areas of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
H. C. R. 69, Requesting a study on the development of intellectual properties and other
mechanisms to encourage the film industry to conduct business in West Virginia,
H. C. R. 71, Requesting a study on the current statistical trends in juvenile delinquency,
And,
S. C. R. 55, Requesting Joint Committee on Government and Finance study state fire code
rules applying to bed and breakfasts,
And reports the same back with the recommendation that they each be adopted.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 260, Allowing design-build board to be reimbursed for certain expenses,
And,
Com. Sub. for S. B. 709, Providing additional internal controls and procedures for
purchasing card program; other provisions,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that they each do pass, as amended, and with the recommendation that second reference of the bills to the Committee on Finance be dispensed with.
At the respective requests of Delegate Staton, and by unanimous consent, reference of Com.
Sub. for S. B. 260 to the Committee on Finance was abrogated, and it was taken up for immediate
consideration, read a first time, ordered to second reading and then, in accordance with the
provisions of House Rule 70a, was ordered to the Consent Calendar.
In the absence of objection, reference of Com. Sub. for S. B. 709 to the Committee on
Finance was abrogated and then, in accordance with the provisions of House Rule 70a, was ordered
to the Consent Calendar.
Vice Chairman Williams, from the Committee on Education, submitted the following report,
which was received:
Your Committee on Education has had under consideration:
S. B. 636, Relating to employment of members of teachers defined benefit retirement system,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, and with the recommendation that second reference of the bill to the Committee on
Finance be dispensed with.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
bill (S. B. 636) to the Committee on Finance was abrogated, and it was taken up for immediate
consideration, read a first time and ordered to second reading.
Vice Chairman Williams, from the Committee on Education, submitted the following report,
which was received:
Your Committee on Education has had under consideration:
S. B. 512, Authorizing rules of higher education policy commission,
And reports the same back, with the recommendation that it do pass, and with the
recommendation that second reference of the bill to the Committee on the Judiciary be dispensed
with.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the bill (S. B. 512) to the Committee on Finance was abrogated, and it was taken up for immediate
consideration, read a first time and ordered to second reading.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 480, Exempting nonprofit licensed nursing homes from registration under solicitation
of charitable funds act,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 480)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 533, Authorizing division of corrections charge certain adult offenders
transfer application fee,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended, and with the recommendation that second reference
of the bill to the Committee on Finance be dispensed with.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
bill (Com. Sub. for S. B. 533) to the Committee on Finance was abrogated, and it was taken up for
immediate consideration, read a first time, ordered to second reading and then, in accordance with
the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 724, Transferring authority to propose rules relating to water quality standards to
department of environmental protection,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 724)
was taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 509, Relating to property sold at sheriff's sale,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 509)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Chairman Beane, from the Committee on Government Organization, submitted the following
report, which was received:
Your Committee on Government Organization has had under consideration:
Com. Sub. for S. B. 460, Relating to regulating surveyors and underground surveyors,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended, and with the recommendation that second reference
of the bill to the Committee on the Judiciary be dispensed with.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
bill (Com. Sub. for S. B. 460) to the Committee on the Judiciary was abrogated, and it was taken up
for immediate consideration, read a first time, ordered to second reading and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Vice Chairman Williams, from the Committee on Education, submitted the following report,
which was received:
Your Committee on Education has had under consideration:
S. B. 633, Relating to electronic mail addresses protected in higher education institutions;
penalty,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, but that it first be referred to the Committee the Judiciary.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 633)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on the Judiciary.
Chairman Warner, from the Committee on Roads and Transportation, submitted the
following report, which was received:
Your Committee on Roads and Transportation has had under consideration:
S. B. 638, Authorizing special license plate for Davis & Elkins college and plate recognizing
breast cancer survivors,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended, and with the recommendation that second reference
of the bill to the Committee on Finance be dispensed with.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the
bill (S. B. 638) to the Committee on Finance was abrogated, and it was taken up for immediate
consideration, read a first time, ordered to second reading and then, in accordance with the
provisions of House Rule 70a, was ordered to the Consent Calendar.
Messages from the Executive
Mr. Speaker, Mr. Kiss, present the annual report of the West Virginia Division of Labor, in
accordance with section four, article one, chapter twelve of the code; which was filed in the Clerk's Office.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 2088, Increasing the penalty for the manufacture, distribution or
possession of certain controlled or counterfeit substances near a park.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §60A-9-5 of the code of West Virginia, 1931, as amended, be amended and reenacted
to read as follows:
ARTICLE 9. CONTROLLED SUBSTANCES MONITORING.
§60A-9-5. Confidentiality; limited access to records; period of retention; no civil liability for
required reporting.
The information required by this article to be kept by the state board of pharmacy is
confidential and is open to inspection only by inspectors and agents of the state board of pharmacy,
members of the West Virginia state police expressly authorized by the superintendent of the West
Virginia state police to have access to the information, authorized agents of local law-enforcement
agencies as a member of a drug task force, authorized agents of the federal drug enforcement agency,
duly authorized agents of licensing boards of practitioners in this state and other states authorized
to prescribe Schedules II, III and IV controlled substances, prescribing practitioners and pharmacists
and persons with an enforceable court order or regulatory agency administrative subpoena:
Provided, That all information released by the state board of pharmacy must be related to a specific
patient or a specific individual or entity under investigation by any of the above parties except that practitioners who prescribe controlled substances may request specific data related to their drug
enforcement administration controlled substance registration number or for the purpose of providing
treatment to a patient. The board shall maintain the information required by this article for a period
of not less than five years. Notwithstanding any other provisions of this code to the contrary, data
obtained under the provisions of this article may be used for compilation of educational, scholarly
or statistical purposes as long as the identities of persons or entities remain confidential. No
individual or entity required to report under section four of this article may be subject to a claim for
civil damages or other civil relief for the reporting of information to the board of pharmacy as
required under and in accordance with the provisions of this article."
And,
By amending the title to read as follows:
Com. Sub. for H. B. 2088 - "A Bill to amend and reenact §60A-9-5 of the code of West
Virginia, 1931, as amended, relating to authorizing local law-enforcement officers who are members
of drug task forces to have access to prescription drug monitoring data."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate
amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4027, Establishing a voluntary environmental excellence program.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page eight, section three, line thirteen, by striking out the words "Three, four, five, six"
and inserting in lieu thereof the words "Four, five".
On page twenty-seven, section nine, line one, by striking out the words "establish and provide" and inserting in lieu thereof the words "propose rules for legislative approval, pursuant to
the provisions of chapter twenty-nine-a of this code, establishing".
And,
On page twenty-seven, section nine, line six, following the word "subsection" and the period,
by striking out the remainder of the section.
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 486), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4027) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4143, Creating a West Virginia center for nursing to establish a
statewide strategic plan to address the nursing shortage in the state and to facilitate recruitment and
retention of nurses.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, after the enacting clause, by striking out the remainder of the bill and inserting
in lieu thereof the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
section, designated §30-7-8a; that said code be amended by adding thereto a new section, designated §30-7A-7a; and that said code be amended by adding thereto a new article, designated §30-7B-1,
§30-7B-2, §30-7B-3, §30-7B-4, §30-7B-5, §30-7B-6, §30-7B-7, §30-7B-8, §30-7B-9 and §30-7B-
10, all to read as follows:
ARTICLE 7. REGISTERED PROFESSIONAL NURSES.
§30-7-8a. Supplemental fees to fund center for nursing; emergency rules.
(a) The board is authorized to assess a supplemental licensure fee not to exceed ten dollars
per license per year. The supplemental licensure fee is to be used to fund the center for nursing and
to carry out its purposes as set forth in article seven-b of this chapter.
(b) The board shall propose rules for legislative approval in accordance with the provisions
of article three, chapter twenty-nine-a of this code to establish the supplemental licensure fee.
(c) The board may promulgate emergency rules pursuant to the provisions of section fifteen,
article three, chapter twenty-nine-a of this code for the initial fee assessment.
ARTICLE 7A. PRACTICAL NURSES.
§30-7A-7a. Supplemental fees to fund center for nursing; emergency rules.
(a) The board is authorized to assess a supplemental licensure fee not to exceed ten dollars
per license per year. The supplemental licensure fee is to be used to fund the center for nursing and
to carry out its purposes as set forth in article seven-b of this chapter.
(b) The board shall propose rules for legislative approval in accordance with the provisions
of article three, chapter twenty-nine-a of this code to establish the supplemental licensure fee.
(c) The board may promulgate emergency rules pursuant to the provisions of section fifteen,
article three, chapter twenty-nine-a of this code for the initial fee assessment.
ARTICLE 7B. CENTER FOR NURSING.
§30-7B-1. Legislative findings.
The Legislature finds that through the study of the nursing shortage study commission, it is
essential that there be qualified registered professional nurses and other licensed nurses to meet the
needs of patients. Without qualified nurses, quality patient care is jeopardized. The nursing population is aging and fewer students are entering nursing programs.
Therefore, the Legislature declares to ensure quality health care, recruitment and retention
of nurses is important and a center is needed to address the nursing shortage crisis in West Virginia.
§30-7B-2. Definitions.
(a) 'Board' means the board of directors for the West Virginia center for nursing.
(b) 'Center' means the West Virginia center for nursing.
(c) 'Direct patient care', as used in this article, means health care that provides for the
physical, emotional, diagnostic or rehabilitative needs of a patient, or health care that involves
examination, treatment or preparation for diagnostic tests or procedures.
§30-7B-3. West Virginia center for nursing.
(a) Effective the first day of July, two thousand four, the nursing shortage study commission,
established pursuant to the provisions of section eighteen, article seven, chapter thirty of this code,
is hereby terminated and the powers and duties of the commission are transferred to the West
Virginia center for nursing.
(b) Effective the first day of July, two thousand four, the West Virginia center for nursing is
hereby created to address the issues of recruitment and retention of nurses in West Virginia.
(c) The higher education policy commission shall provide suitable office space for the center.
The commission shall share statistics and other pertinent information with the center and shall work
cooperatively to assist the center to achieve its objectives.
§30-7B-4. Center's powers and duties.
The West Virginia center for nursing shall have the following powers and duties:
(1) Establish a statewide strategic plan to address the nursing shortage in West Virginia;
(2) Establish and maintain a database of statistical information regarding nursing supply,
demand and turnover rates in West Virginia and future projections;
(3) Coordinate communication between the organizations that represent nurses, health care
providers, businesses, consumers, legislators and educators;
(4) Enhance and promote recruitment and retention of nurses by creating reward, recognition
and renewal programs;
(5) Promote media and positive image building efforts for nursing, including establishing a
statewide media campaign to recruit students of all ages and backgrounds to the various nursing
programs throughout West Virginia;
(6) Promote nursing careers through educational and scholarship programs, programs directed
at nontraditional students and other workforce initiatives;
(7) Explore solutions to improve working environments for nurses to foster recruitment and
retention;
(8) Explore and establish loan repayment and scholarship programs designed to benefit
nurses who remain in West Virginia after graduation and work in hospitals and other health care
institutions;
(9) Establish grants and other programs to provide financial incentives for employers to
encourage and assist with nursing education, internships and residency programs;
(10) Develop incentive and training programs for long-term care facilities and other health
care institutions to use self-assessment tools documented to correlate with nurse retention, such as
the magnet hospital program;
(11) Explore and evaluate the use of year-round day, evening and weekend nursing training
and education programs;
(12) Establish a statewide hotline and website for information about the center and its
mission and nursing careers and educational opportunities in West Virginia;
(13) Evaluate capacity for expansion of nursing programs, including the availability of
faculty, clinical laboratories, computers and software, library holdings and supplies;
(14) Oversee development and implementation of education and matriculation programs for
health care providers covering certified nursing assistants, licensed practical nurses, registered
professional nurses, advanced nurse practitioners and other advanced degrees;
(15) Seek to improve the compensation of all nurses, including nursing educators; and
(16) Perform such other activities as needed to alleviate the nursing shortage in West
Virginia.
§30-7B-5. Board of directors.
(a) The West Virginia center for nursing shall be governed by a board of directors consisting
of the following thirteen members:
(1) One citizen member;
(2) Two representatives from the West Virginia board of examiners for registered
professional nurses, as follows:
(A) One representing a bachelor and higher degree program; and
(B) One representing an associate degree program;
(3) One representative from the West Virginia board of examiners for licensed practical
nurses;
(4) One representative from the West Virginia nurses association;
(5) One nurse representing a rural health care facility;
(6) Two representatives of employers of nurses, as follows: (A) One director of nursing; and
(B) One health care administrator;
(7) Two registered professional staff nurses engaged in direct patient care;
(8) One licensed practical nurse engaged in direct patient care; and
(9) Two ex officio members, as follows:
(A) The secretary of the department of health and human resources or a designee; and
(B) A representative from the workforce development office.
(b) Before the first day of July, two thousand four, the governor, by and with the consent of
the Senate, shall appoint the eleven citizen members as follows:
(1) The following members for an initial term of two years:
(A) One representative from the West Virginia board of examiners for registered professional nurses representing an associate degree program;
(B) One representative from the West Virginia board of examiners for licensed practical
nurses;
(C) One nurse representing a rural health care facility;
(D) One director of nursing; and
(E) One registered professional staff nurse engaged in direct patient care;
(2) The following members for an initial term of four years:
(A) One citizen member;
(B) One representative from the West Virginia board of examiners for registered professional
nurses representing a bachelor and higher degree program;
(C) One representative from the West Virginia nurses association;
(D) One health care administrator;
(E) One registered professional staff nurse engaged in direct patient care; and
(F) One licensed practical nurse engaged in direct patient care.
(d) After the initial terms expire, the terms of all the members shall be four years, with no
member serving more than two consecutive terms.
(e) The board shall designate a chairperson. Six members shall constitute a quorum.
§30-7B-6. Board's powers and duties.
The board of directors shall have the following powers and duties:
(1) Employ an executive director and other personnel necessary to carry out the provisions
of this article;
(2) Determine operational policy;
(3) Seek and accept public and private funding;
(4) Expend money from the center for nursing fund to carry out the purposes of this article;
(5) Propose rules for legislative approval in accordance with the provisions of article three,
chapter twenty-nine of this code to implement the provisions of this article;
(6) Impanel an advisory committee of stakeholders to provide consultation to the board; and
(7) Do such other acts as necessary to alleviate the nursing shortage in West Virginia.
§30-7B-7. Reimbursement for expenses.
The board members shall serve without compensation, but may be reimbursed for actual and
necessary expenses incurred for each day or portion thereof engaged in the discharge of official
duties in a manner consistent with guidelines of the travel management office of the department of
administration.
§30-7B-8. Special revenue account.
(a) A special revenue account known as the 'center for nursing fund' is hereby established
in the state treasury to be administered by the board to carry out the purposes of this article.
(b) The account shall be funded by:
(1) Assessing all nurses licensed by the board of examiners for registered professional nurses,
pursuant to section eight-a, article seven of this chapter, and the board of examiners for licensed
practical nurses, pursuant to section seven-a, article seven-a of this chapter, a supplemental licensure
fee not to exceed ten dollars per year; and
(2) Other public and private funds.
(c) Beginning the first day of January, two thousand six, and continuing at least two years,
a minimum of an equivalent of one third of the funding from the annual supplemental licensure fees
shall be used for loan and scholarship programs.
§30-7B-9. Reports.
The center shall report annually to the Joint Committee on Government and Finance on its
progress in developing a statewide strategic plan to address the nursing shortage in West Virginia,
along with drafts of proposed legislation needed to implement the center's plan.
§30-7B-10. Continuation.
The West Virginia center for nursing shall continue to exist until the first day of July, two
thousand eight, unless sooner terminated, continued or reestablished pursuant to the provisions of article ten, chapter four of this code."
And,
By amending the title to read as follows:
Com. Sub. for H. B. 4143 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §30-7-8a; to amend said code by adding thereto a new
section, designated §30-7A-7a; and to amend said code by adding thereto a new article, designated
§30-7B-1, §30-7B-2, §30-7B-3, §30-7B-4, §30-7B-5, §30-7B-6, §30-7B-7, §30-7B-8, §30-7B-9 and
§30-7B-10, all relating to creating the West Virginia center for nursing; legislative findings; center
assuming the duties of the nursing shortage study commission; authorizing supplemental nursing
licensure fees; emergency rules; establishing a board of directors for the center; setting forth powers
and duties; permitting expense reimbursement; establishing special revenue account; reporting
requirement; and continuation."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 487), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4143) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 488), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Mezzatesta.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Co. Sub. for H. B. 4143) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
H. B. 4157, Continuing the rural health advisory panel.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section six-b, line three, by striking out the word "eight" and inserting in lieu
thereof the word "five".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 489), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4157) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4200, Authorizing the department of military affairs and public safety
to promulgate legislative rules.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 6. AUTHORIZATION FOR DEPARTMENT OF MILITARY AFFAIRS AND
PUBLIC SAFETY TO PROMULGATE LEGISLATIVE RULES.
§64-6-1. Fire marshal.
(a) The legislative rule filed in the state register on the eighteenth day of February, two
thousand three, authorized under the authority of section four, article three-c, chapter twenty-nine
of this code, modified by the fire marshal to meet the objections of the legislative rule-making
review committee and refiled in the state register on the eighteenth day of June, two thousand three,
relating to the fire marshal (certification of electrical inspectors, 103 CSR 1), is authorized, with the
following amendments:
On page 4, subsection 5.2, after the word 'qualifications' by striking out the word 'forfeits'
and inserting in lieu thereof the words 'and he or she shall also forfeit';
On page five, subsection 7.4, line one, by striking out the words 'Duplicate license fee' and
inserting in lieu thereof the words 'Duplicate certification fee';
On page five, subsection 7.4, line five, by striking out the word 'license' and inserting in lieu
thereof the words 'certification';
And,
On page five, section 8, line five, by striking out the word 'offense' and inserting in lieu
thereof the words 'violation of this rule'.
(b) The legislative rule filed in the state register on the twenty-eighth day of July, two
thousand three, authorized under the authority of section twelve-b, article three, chapter twenty-nine
of this code, modified by the fire marshal to meet the objections of the legislative rule-making
review committee and refiled in the state register on the fifteenth day of December, two thousand
three, relating to the fire marshal (fees for licenses, permits, inspections, plans review and other
services rendered, 103 CSR 2), is authorized with the following amendments:
On page four, subsection 6.12, by striking out the subsection in its entirety and renumbering subsequent subsections accordingly;
On page five, subsection 6.14, by striking out the words 'Unjustified Complaint -------- Fee
to complainant will be the same as listed per above respective occupancy' and inserting in lieu
thereof the words 'Unjustified Complaint (fee charged complainant) -------- $25.00';
On page five, subsection 6.20, by striking out the subsection in its entirety and renumbering
subsequent subsections accordingly;
And,
On page five, subsection 6.22, by striking out said subsection 6.22 in its entirety.
§64-6-2. State police.
The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section five, article two, chapter fifteen of this code,
modified by the state police to meet the objections of the legislative rule-making review committee
and refiled in the state register on the sixteenth day of December, two thousand three, relating to the
state police (career progression system, 81 CSR 3), is authorized."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 490), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4200) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 491), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Mezzatesta.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4200) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4299, Modifying the West Virginia contractor licensing act and
updating certain terms.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page fifteen, section thirteen, lines twelve through sixteen, by striking out all of
subdivision (3) and inserting in lieu thereof a new subdivision (3), to read as follows:
"(3) Within thirty days after receipt of the final order issued pursuant to this section, any party
adversely affected by the order may appeal the order to the circuit court of Kanawha County, West
Virginia, or to the circuit court of the county in which the petitioner resides or does business."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 492), and there were--yeas
97, nays 1, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Frich.
Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4299) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Resolutions Introduced
Delegates Armstead, Webb and Walters offered the following resolution, which was read by
its title and referred to the Committee on Rules:
H. C. R. 86 - "Requesting the United States Corps of Engineers, the State Soil Conservation
Agency and the West Virginia Division of Highways to study the issue of flooding in Kanawha
County, including the causes of the recurring flooding and requesting these agencies to take
appropriate actions to alleviate and where possible to eliminate the devastating effects of flooding."
Whereas, The people of Kanawha County have endured recurrent flooding resulting in loss
of life, personal injury and property loss, including those residents and businesses in the Nitro and
Cross Lanes areas, the Sissonville area and the Elk River Valley area; and
Whereas, Determining the underlying causes of the recurring flooding in these areas and
developing solutions to eliminate or reduce the effects of flooding is crucial to the well-being of
these Kanawha County residents; and
Whereas, Several roadways connecting residences and businesses in these areas to the rest
of Kanawha County, including portions of Haines Branch Road, Edens Fork Road, Route 21 in the
Sissonville area and U. S. Route 119, U. S. Route 114 and Thorofare Road in the Elk River area,
periodically and repeatedly become impassible due to high flood waters which strand residents and
make it extremely difficult for emergency responders to reach people living in these flood distressed
areas; and
Whereas, Citizens and businesses in the affected areas have endured life threatening
flooding which has resulted in the destruction of too many homes and businesses on a recurring
basis; and
Whereas, The potential solutions include increased dredging, installation or modification
of drainage systems, modification of road grades and routes, and other preventative and corrective
actions which must be explored and, if determined to be appropriate, advanced in order to alleviate
the threat of recurring flooding in Kanawha County; therefore, be it
Resolved by the Legislature of West Virginia:
That the United States Corps of Engineers, the State Soil Conservation Agency and the West
Virginia Division of Highways are hereby requested to study the causes of the recurring flooding and
take appropriate actions to eliminate, where possible, recurring flooding of homes, communities,
businesses and roadways in these areas of Kanawha County and to lessen the severity and reduce
adverse effects of the flooding that cannot be completely eliminated; and, be it
Further Resolved, That the Clerk of the House of Delegates is hereby directed to forward a
copy of this resolution to the United States Corps of Engineers, the State Soil Conservation Agency,
the Commissioner of the Division of Highways and West Virginia's delegation to Congress.
Delegates Amores, Fleischauer, Webster, Ellem and Brown offered the following resolution,
which was read by its title and referred to the Committee on Rules:
H. C. R. 87 - "Requesting the Joint Committee on Government and Finance to study the
projected costs and potential sources of revenue which may be made available to support a plan to
provide public campaign finances for designated elected offices, and to further examine the
reporting requirements and guidelines which would be imposed on participating and nonparticipating
candidates once a publicly funded campaign option is implemented."
Whereas, The Legislature has had under consideration the issue of publicly funded
campaigns; and
Whereas, The establishment of a suitable funding mechanism for publicly financed
campaigns is a continued barrier to further consideration of such legislation; and
Whereas, It is found that further study of the projected costs and potential sources of
funding and the development of additional funding alternatives is needed to move forward with the
consideration of such legislation; and
Whereas, It is found that further study is needed to examine the reporting requirements
which should be imposed on candidates who elect to participate, and on those who do not elect to
accept public campaign funding under such a program; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to direct the
House Standing Committees of Judiciary and Finance to undertake the study of the projected costs
and the sources of revenue which can be made available to support a program which would provide
for public campaign funds to qualifying candidates for designated elected offices; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2005, on its findings, conclusions and recommendations, together with
the drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Petitions
Delegates Overington, Blair and Duke presented a petition, signed by one hundred eighty-one
residents of the Eastern Panhandle supporting a Constitutional amendment increasing the homestead
exemption from $20,000 to $40,000; which was referred to the Committee on Finance.
Consent Calendar
Third Reading
The following bills on third reading, coming up in regular order, were each read a third time:
S. B. 160, Extending time to appropriate money from public employees insurance agency
reserve fund to bureau of medical services,
S. B. 517, Relating to standard nonforfeiture law for individual deferred annuities,
S. B. 577, Continuing board of registration for foresters,
And,
S. B. 671, Clarifying appeal bond procedures relating to master tobacco settlement.
On the passage of the bills, the yeas and nays were taken (Roll No. 493), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Mezzatesta.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bills (S. B. 160, S. B. 517, S. B. 577 and S. B. 671) passed.
An amendment to the title of S. B. 517, recommended by the Committee on Banking and
Insurance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 517 - "A Bill to amend and reenact §33-7-9 of the code of West Virginia, 1931, as
amended, and to amend and reenact §33-13-30a of said code, relating to the valuation of annuities;
establishing minimum standards for the valuation of life insurance policies; and modifying the
standard nonforfeiture law for individual deferred annuities."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates on the Consent Calendar bills and request concurrence on those requiring the same.
Second Reading
Com. Sub. for S. B. 149, Relating generally to department of tax and revenue; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, after the enacting clause, by striking out the remainder of
the bill and inserting in lieu thereof the following:
"That §5A-2-2, §5A-2-3, §5A-2-4, §5A-2-5, §5A-2-6, §5A-2-7, §5A-2-8, §5A-2-9, §5A-2-
10, §5A-2-11, §5A-2-12, §5A-2-13, §5A-2-14, §5A-2-14a, §5A-2-15, §5A-2-16, §5A-2-17, §5A-2-
18, §5A-2-19, §5A-2-20, §5A-2-21, §5A-2-22, §5A-2-23, §5A-2-26, §5A-2-27, §5A-2-28, §5A-2-
29, §5A-2-30 and §5A-2-31 of the code of West Virginia, 1931, as amended, be repealed; that §5A-
1-2, §5A-1-4 and §5A-1-5 of said code be amended and reenacted; that §5A-2-1, §5A-2-24 and §5A-
2-32 of said code be amended and reenacted; and that said code be amended by adding thereto a new
chapter, designated §11B-1-1, §11B-1-2, §11B-1-3, §11B-1-4, §11B-1-5, §11B-1-6, §11B-1-7,
§11B-2-1, §11B-2-2, §11B-2-3, §11B-2-4, §11B-2-5, §11B-2-6, §11B-2-7, §11B-2-8, §11B-2-9,
§11B-2-10, §11B-2-11, §11B-2-12, §11B-2-13, §11B-2-14, §11B-2-15, §11B-2-16, §11B-2-17,
§11B-2-18, §11B-2-19, §11B-2-20, §11B-2-21, §11B-2-22, §11B-2-23, §11B-2-24, §11B-2-25, §11B-2-26, §11B-2-27, §11B-2-28, §11B-2-29, §11B-2-30 and §11B-2-31, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.
ARTICLE 1. DEPARTMENT OF ADMINISTRATION.
§5A-1-2. Department of administration and office of secretary; secretary; division of finance
and administration abolished; division directors.
(a) The department of administration and the office of secretary of administration are hereby
continued in the executive branch of state government. The secretary shall be the chief executive
officer of the department and director of the budget and shall be appointed by the governor, by and
with the advice and consent of the Senate, for a term not exceeding the term of the governor. The
office of the commissioner of finance and administration and the division of finance and
administration are hereby abolished. All duties and responsibilities of the commissioner of finance
and administration are hereby vested in the secretary of administration. All records, responsibilities,
obligations, assets and property, of whatever kind and character, of the division of finance and
administration are hereby transferred to the department of administration. The balances of all funds
of the division of finance and administration are hereby transferred to the department of
administration. The department of administration is hereby authorized to receive federal funds.
(b) The secretary shall serve at the will and pleasure of the governor. The annual
compensation of the secretary shall be as specified in section three, article one, chapter five-f section
two-a, article seven, chapter six of this code.
(c) There shall be in the department of administration a finance division, a general services
division, an information services and communications division, an insurance and retirement division,
a personnel division and a purchasing division. The insurance and retirement division shall be
comprised of the public employees retirement system and board of trustees, the public employees
insurance agency and public employees advisory board, the teachers' retirement system and teachers'
retirement board, and the board of risk and insurance management. Each division shall be headed
by a director who may also head any and all sections within that division and who shall be appointed by the secretary. In addition to the divisions enumerated above, there shall also be in the department
of administration those agencies, boards, commissions and councils specified in section one, article
two, chapter five-f of this code.
§5A-1-4. Council of finance and administration.
(a) The council of finance and administration is hereby created and shall be composed of ten
eleven members, four five of whom shall serve ex officio and six of whom shall be appointed as
herein provided. The ex officio members shall be the secretary of the department of administration,
the secretary of revenue, the attorney general or his or her designee, the state treasurer or his or her
designee and the state auditor or his or her designee; such designees being authorized voting ones.
From the membership of the Legislature, the president of the Senate shall appoint three senators as
members of the council, not more than two of whom shall be members of the same political party,
and the speaker of the House of Delegates shall appoint three delegates as members of the council,
not more than two of whom shall be members of the same political party. Members of the council
appointed by the president of the Senate and the speaker of the House of Delegates shall serve at the
will and pleasure of the officer making their appointment. The secretary of administration shall serve
as chairman of the council. Meetings of the council shall be upon call of the chairman or a majority
of the members thereof. It shall be the duty of the chairman to call no less than four meetings in each
fiscal year, one in each quarter, or more often as necessary, and all meetings shall be open to the
public. All meetings of the council shall be held at the capitol building in a suitable committee room
which shall be made available by the Legislature for such purpose: Provided, That the second
quarterly meeting in each fiscal year shall be held in November and shall be a joint meeting with the
Joint Committee on Government and Finance of the Legislature called jointly by the president of the
Senate, speaker of the House of Delegates and secretary of administration.
(b) The council shall serve the department of administration and the director of the budget
in an advisory capacity for purposes of reviewing the performance of the administrative and fiscal
procedures of the state, including the oversight of all federal funds, and shall have the following duties:
(1) To advise with the secretary director of the budget in respect to matters of budgetary
intent and efficiency, including the budget bill and budget document detail and format;
(2) To advise with the secretary and the director of the budget concerning such studies of
government and administration concerning fiscal policy as it may consider considers appropriate;
(3) To advise with the secretary and the director of the budget in the preparation of studies
designed to provide long-term capital planning and finance for state institutions and agencies; and
(4) To advise with the secretary and the director of the budget in respect to the application
for, and receipt and expenditure of, anticipated or unanticipated federal funds.
(c) The appointed, non-ex officio members of the council shall be entitled to receive such
compensation and reimbursement for expenses in connection with performance of their duties,
during interim periods, if not otherwise receiving the same for such identical periods, as is authorized
by the applicable sections of article two-a, chapter four of the code in respect to performance of
duties either within the state or, if deemed necessary, out of state. Such compensation Compensation
and expenses shall be incurred and paid only after approval by the Joint Committee on Government
and Finance.
§5A-1-5. Reports by secretary.
The secretary shall make an annual report to the governor concerning the conduct of the
department and the administration of the state finances as they pertain to programs administered by
the department of administration. He The secretary shall also make such other reports as the
governor may require.
ARTICLE 2. FINANCE DIVISION.
§5A-2-1. Finance division created; director; sections; powers and duties.
(a) The finance division of the department of administration is hereby created continued
except that the budget section is transferred to and shall become a part of the department of revenue
on the effective date of this section as amended in the year two thousand four. The finance division shall be under the supervision and control of a director, who shall be appointed by the secretary.
There shall be in the finance division an accounting section a budget section and a financial
accounting and reporting section.
(b) The accounting section shall have the duties conferred upon it by this article and by the
secretary, including, but not limited to, general financial accounting, payroll, accounts payable and
accounts receivable for the department of administration.
The budget section shall act as staff agency for the governor in the exercise of his powers and
duties under Section 51, Article VI of the state constitution, and shall exercise and perform the other
powers and duties conferred upon it by this article.
(c) The financial accounting and reporting section shall establish and maintain the centralized
accounting system required by section twenty-four of this article and issue annual general purpose
financial statements in accordance with generally accepted accounting principles and with this
article.
§5A-2-24. Management accounting.
(a) It is the intent of this section to establish a centralized accounting system for the offices
of the auditor, treasurer, board of investments, secretary of administration and each spending unit
of state government to provide more accurate and timely financial data and increase public
accountability.
(b) Notwithstanding any provision of this code to the contrary, the secretary of administration
shall develop and implement a new centralized accounting system for the planning, reporting and
control of state expenditures in accordance with generally accepted accounting principles to be used
by the auditor, treasurer, board of investments, secretary and all spending units. The accounting
system shall provide for adequate internal controls, accounting procedures, recording income
collections, systems operation procedures and manuals, and periodic and annual general purpose
financial statements, as well as provide for the daily exchange of needed information among users.
(c) The financial statements shall be audited annually by outside independent certified public accountants, who shall also issue an annual report on federal funds in compliance with federal
requirements.
(d) The secretary shall implement the centralized accounting system no later than the thirty-
first day of December, one thousand nine hundred ninety-three, and, after approval of the system by
the governor, shall require its use by all spending units. The auditor, treasurer, board of investments,
secretary and every spending unit shall maintain their computer systems and data files in a standard
format in conformity with the requirements of the centralized accounting system. Any system
changes must be approved in advance of such the change by the secretary. The auditor, treasurer,
board of investments, budget director and secretary of administration shall provide on-line
interactive access to the daily records maintained by their offices.
§5A-2-32. Submission of requests, amendments, reports, etc., to legislative auditor;
misdemeanor penalty for noncompliance.
(a) The provisions of sections three, eleven, twelve, thirteen, nineteen, twenty-three and
section twenty-five of this article requiring the secretary or the spending officer of the spending units,
as the case may be, to supply copies of the documents specified therein to the legislative auditor shall
be strictly adhered to by all such persons the secretary.
(b) Any failure by any person to do so a secretary to comply with the provisions of subsection
(a) of this section shall be a misdemeanor and, upon conviction thereof, such person the secretary
shall be fined the sum of one thousand dollars. Such This penalty shall be in addition to other
penalties provided elsewhere in this article and other remedies provided by law.
CHAPTER 11B. DEPARTMENT OF REVENUE.
ARTICLE 1. DEPARTMENT OF REVENUE.
§11B-1-1. Department of tax and revenue renamed department of revenue; office of secretary
of tax and revenue renamed office of secretary of revenue.
(a) The department of tax and revenue and the office of secretary of tax and revenue are
hereby renamed, respectively, the department of revenue and the office of secretary of revenue and continued in the executive branch of state government. Wherever in this code the words 'office of
secretary of tax and revenue' or 'secretary of tax and revenue' are used, such words shall now mean
the office of secretary of revenue or the secretary of revenue.
(b) The secretary of revenue shall be the chief executive officer of the department and
director of the budget. The secretary shall be appointed by the governor, by and with the advice and
consent of the Senate, for a term not exceeding the term of the governor.
(c) The department of revenue is hereby authorized to receive federal funds.
(d) The secretary shall serve at the will and pleasure of the governor. The annual
compensation of the secretary shall be as specified in section two-a, article seven, chapter six of this
code.
§11B-1-2. Agencies, boards, commissions, divisions and offices comprising the department of
finance and revenue.
(a) There shall be in the department of revenue the following agencies, boards, commissions,
divisions and offices, including all of the allied, advisory, affiliated or related entities which are
incorporated in and shall be administered as part of the department of revenue:
(1) The alcohol beverage control commissioner provided for in article sixteen, chapter eleven
of this code and article one, chapter sixty of this code;
(2) The division of banking provided for in article two, chapter thirty-one-a of this code;
(3) The board of banking and financial institutions provided for in article three, chapter
thirty-one-a of this code;
(4) The state budget office, heretofore known as the budget section of the finance division,
department of administration, previously provided for in article two, chapter five-a of this code and
now provided for in article two of this chapter;
(5) The agency of insurance commissioner provided for in article two, chapter thirty-three
of this code;
(6) The lending and credit rate board provided for in chapter forty-seven-a of this code;
(7) The lottery commission and the position of lottery director provided for in article twenty-
two, chapter twenty-nine of this code;
(8) The municipal bond commission provided for in article three, chapter thirteen of this
code;
(9) The office of tax appeals provided for in article ten-a, chapter eleven of this code;
(10) The state athletic commission provided for in article five-a, chapter twenty-nine of this
code;
(11) The tax division provided for in article one, chapter eleven of this code; and
(12) The West Virginia racing commission provided for in article twenty-three, chapter
nineteen of this code.
(b) The department shall also include any other agency, board, commission, division, office
or unit subsequently incorporated in the department by the Legislature.
§11B-1-3. Powers and duties of secretary, administrators, division heads and employees.
(a) The secretary shall have control and supervision of the department of revenue and shall
be responsible for the work of each of its employees.
(b) The secretary shall have the power and authority specified in this article and article two,
chapter five-f of this code and as specified elsewhere in this code, whether heretofore or hereinafter
enacted by the Legislature and whether the code provision refers to the secretary of revenue or to the
secretary of tax and revenue.
(c) The secretary has authority to assess agencies, boards, commissions, divisions and offices
in the department of revenue for the payment of expenses of the office of the secretary.
(d) The secretary shall have plenary power and authority within and for the department to
employ professional staff, including, but not limited to, certified public accountants, economists and
attorneys, assistants and other employees as necessary for the efficient operation of the department.
(e) The secretary and administrators, division heads and other employees of the department
shall perform the duties specified in this code for their respective offices or positions and shall also perform other duties as the governor prescribes.
§11B-1-4. Reports by secretary.
The secretary shall make an annual report to the governor concerning the conduct of the
department and the administration of the budget. The secretary shall also make other reports as the
governor may require.
§11B-1-5. Delegation of powers and duties by secretary.
The secretary may delegate powers and duties vested in the secretary to his or her assistants
and employees, but the secretary shall be responsible for all official acts of the department.
§11B-1-6. Confidentiality of information.
(a) Information provided to secretary under expectation of confidentiality. -- Information that
would be confidential under the laws of this state when provided to a division, agency, board,
commission or office within the department of revenue shall be confidential when that information
is provided to the secretary of the department of revenue or to an employee in the office of the
secretary. The confidential information may be disclosed only: (1) To the applicable agency, board,
commission or division of the department to which the information relates; or (2) in the manner
authorized by provisions of this code applicable to that agency, board, commission or division. This
confidentiality rule is a specific exemption from disclosure under article one, chapter twenty-nine-b
of this code.
(b) Interdepartmental communication of confidential information. -- Notwithstanding any
provision of this code to the contrary, information that by statute is confidential in the possession of
any division, agency, board, commission or office of the department of revenue may be disclosed
to the secretary, or an employee in the office of the secretary, who must safeguard the information
and may not further disclose the information except under the same conditions, restrictions and
limitations applicable to the administrator of the agency, board, commission, division or office of
the department in whose hands the information is confidential: Provided, That nothing contained
in this section shall be construed to require the disclosure to the secretary or to an employee in the office of the secretary of individually identifiable health care or other information that, under federal
law, may not be disclosed by the administrator without subjecting the administrator or the agency,
board, commission, division or office to sanctions or other penalties by the United States or any
agency thereof. This confidentiality rule is a specific exemption from disclosure under article one,
chapter twenty-nine-b of this code.
§11B-1-7. Right of appeal from interference with functioning of agency.
Upon occasion of a showing that the application of the authority vested under the provisions
of this article may interfere with the successful functioning of any department, institution or agency
of the government, that department, institution or agency has the right of appeal to the governor for
review of the case and the decision or conclusion of the governor shall control in appeals.
ARTICLE 2. STATE BUDGET OFFICE.
§11B-2-1. Budget office.
The budget section of the department of administration is hereby transferred to the
department of revenue and continued as the budget office. The budget office shall act as staff agency
for the governor in the exercise of his powers and duties under section fifty-one, article VI of the
constitution of West Virginia and shall exercise and perform the other powers and duties of the
budget office set forth in this article or previously conferred upon the budget section of the finance
division, department of administration, prior to the effective date of this section in calendar year two
thousand four, and set forth whether in article two, chapter five-a of this code, prior to the effective
date of this section in calendar year two thousand four, this article or elsewhere in this code.
§11B-2-2. General powers and duties of secretary as director of budget.
The secretary of revenue, under the immediate supervision of the governor, shall have the
power and duty to:
(1) Exercise general supervision of, and make rules and regulations for, the government of
this division;
(2) Administer the budget in accordance with this article;
(3) Serve the governor in the consideration of requests for appropriations and the preparation
of the budget document;
(4) Make investigations and submit reports as the governor requires;
(5) Make a continuous study of state expenditures and eligibility for federal matching dollars
and make recommendations to the governor for the more economical use of state funds as he or she
shall find practicable;
(6) Render assistance to spending officers with respect to the fiscal affairs of spending units;
and
(7) Exercise other powers as are vested in the secretary by this article, or which may be
appropriate to the discharge of the secretary's duties under this article.
§11B-2-3. Requests for appropriations; copies to legislative auditor.
(a) The spending officer of each spending unit, other than the legislative and the judicial
branches of state government, shall, on or before the first day of September of each year, submit to
the secretary a request for appropriations for the fiscal year next ensuing. On or before the same date,
the spending officer shall also transmit two copies of the request to the legislative auditor for the use
of the finance committees of the Legislature.
(b) If the spending officer of any spending unit fails to transmit to the legislative auditor two
copies of the request for appropriations within the time specified in this section, the legislative
auditor or the state budget office shall notify the secretary, auditor and treasurer of the failure. Upon
notification, no funds appropriated to that spending unit shall be encumbered or expended until the
spending officer thereof has transmitted two copies of the request for appropriation to the legislative
auditor.
(c) If a spending officer submits to the secretary an amendment to the request for
appropriations, two copies of the amendment shall forthwith be transmitted to the legislative auditor.
(d) Notwithstanding any provision in this section to the contrary, the state superintendent of
schools shall, on or before the fifteenth day of December of each year, submit to the secretary a request for appropriations for the fiscal year next ensuing for state aid to schools and submit two
copies of the request to the legislative auditor for the use of the finance committees of the
Legislature. The request for appropriation shall be accompanied with copies of certified enrollment
and employee lists from all county superintendents for the current school year. If certified
enrollment and employee lists are not available to the state superintendent from any of the county
school boards, the state superintendent shall notify those school boards and no funds shall be
expended for salary or compensation to their county superintendent until the certified lists of
enrollment and employees are submitted.
§11B-2-4. Contents of requests.
A request for an appropriation for a spending unit shall specify and itemize in written form:
(1) A statement showing the amount and kinds of revenue and receipts collected for use of
the spending agency during the next preceding fiscal year and anticipated collections for the fiscal
year next ensuing;
(2) A statement by purposes and objects of the amount of appropriations requested for the
spending unit without deducting the amount of anticipated collections of special revenue, federal
funds or other receipts;
(3) A statement showing the actual expenditures of the spending unit for the preceding year
and estimated expenditures for the current fiscal year itemized by purposes and objects, including
those from regular and supplementary appropriations, federal funds, private contributions, transfers,
allotments from an emergency or contingency fund and any other expenditures made by or for the
spending unit;
(4) A statement showing the number, classification and compensation of persons employed
by the spending unit distinguishing between regular, special and casual employees during the
preceding fiscal year and during the current fiscal year. The statement shall show the personnel
requirements in similar form for the ensuing fiscal year for which appropriations are requested;
(5) A statement showing in detail the purposes for which increased amounts of appropriations, if any, are requested and giving a justification statement for the expenditure of the
increased amount. A construction or other improvement request shall show in detail the kind and
scope of construction or improvement requested;
(6) A statement of money claims against the state arising out of the activities of the spending
unit; and
(7) Any other information as the secretary requests.
§11B-2-5. Form of requests.
The secretary shall specify the form and detail of itemization of requests for appropriations
and statements to be submitted by a spending unit: Provided, That a request for appropriations must
include at a minimum the information required by section four of this article. The secretary shall
furnish blank forms for this purpose.
§11B-2-6. Information concerning state finances.
The secretary shall ascertain for the preceding year and as estimated for the current fiscal
year:
(1) The condition of each of the funds of the state;
(2) A statement of all revenue collections both general and special; and
(3) Any other information relating to the finances of the state as the governor requests.
§11B-2-7. Appropriations for judiciary.
The governor shall transmit to the secretary the appropriations required by law for the
judiciary for the fiscal year next ensuing and which have been certified to the governor by the
auditor. The auditor shall certify the appropriations to the governor in accordance with section fifty-
one, article VI of the constitution of West Virginia on or before the first day of September of each
year.
§11B-2-8. Examination of requests for appropriations.
(a) The secretary shall examine the requests of a spending unit with respect to requested
appropriations, itemization, sufficiency of justification statements and accuracy and completeness of all other information which the spending officer is required to submit.
(b) If the secretary finds a request, report, or statement of a spending unit inaccurate,
incomplete or inadequate, he or she shall consult with the spending officer of the unit and require
the submission of the requests in proper form and content. The secretary shall assist spending
officers in the preparation of their requests.
§11B-2-9. Appropriation requests by other than spending units.
A person or organization, other than a spending officer, who desires to request a general
appropriation in the state budget, shall submit his or her request to the secretary on or before the first
day of September of each year. The request shall be in the form prescribed by the secretary and shall
be accompanied by a justification statement.
§11B-2-10. Powers of secretary in administration of expenditures.
(a) The secretary shall supervise and control the expenditure of appropriations made by the
Legislature excluding those made to the Legislature and those made to the judicial branch of the state
government.
(b) The expenditure of an appropriation made by the Legislature, except made for the
Legislature itself and the judicial branch of state government, shall be conditioned upon compliance
by the spending unit with the provisions of this article.
(c) An appropriation made by the Legislature, except made for the Legislature itself and the
judicial branch of state government, shall be expended only in accordance with this article.
§11B-2-11. Estimates of revenue; reports on revenue collections; withholding department
funds on noncompliance.
(a) Prior to the beginning of each fiscal year the secretary shall estimate the revenue to be
collected month by month by each classification of tax for that fiscal year as it relates to the official
estimate of revenue for each tax for that fiscal year and the secretary shall certify this estimate to the
governor and the legislative auditor and the West Virginia investment management board by the first
day of July for that fiscal year.
(1) The secretary shall ascertain the collection of the revenue of the state and shall determine
for each month of the fiscal year the proportion which the amount actually collected during a month
bears to the collection estimated by him or her for that month. The secretary shall certify to the
governor, the legislative auditor and the investment management board, as soon as possible after the
close of each month, and not later than the fifteenth day of each month, and at other times as the
governor, the legislative auditor or the investment management board may request, the condition of
the state revenues and of the several funds of the state and the proportion which the amount actually
collected during the preceding month bears to the collection estimated by him or her for that month.
The secretary shall include in this certification the same information previously certified for prior
months in each fiscal year. For the purposes of this section, the secretary shall have the authority to
require all necessary estimates and reports from any spending unit of the state government.
(2) If the secretary fails to certify to the governor, the legislative auditor and the investment
management board the information required by this subsection within the time specified herein, the
legislative auditor shall notify the auditor and treasurer of the failure and thereafter no funds
appropriated to the department of revenue may be expended until the secretary has certified the
information required by this subsection.
(b) Prior to the first day of July of each fiscal year, the secretary shall estimate daily revenue
flows for the general revenue fund for the next fiscal year as it relates to the official estimate of
revenue. Subsequent to the end of each fiscal year, the secretary shall compare the projected daily
revenue flows with the actual daily revenue flows from the previous year. The secretary may for any
month or months, at his or her discretion, revise the annual projections of the daily revenue flows.
The secretary shall certify to the governor, the legislative auditor and the investment management
board, as soon as possible after the close of each month and not later than the fifteenth day of each
month, and at other times as the governor, the legislative auditor or the investment management
board may request, the condition of the general revenue fund and the comparison of the projected
daily revenue flows with the actual daily revenue flows. If the secretary fails to certify to the governor, the legislative auditor and the investment management board the information required by
this subsection within the time specified herein, the legislative auditor shall notify the auditor and
treasurer of the failure and thereafter no funds appropriated to the department of revenue may be
expended until the secretary has certified the information required by this subsection.
§11B-2-12. Submission of expenditure schedules; contents; submission of information on
unpaid obligations; copies to legislative auditor.
(a) Prior to the beginning of each fiscal year, the spending officer of a spending unit shall
submit to the secretary a detailed expenditure schedule for the ensuing fiscal year. The schedule
shall be submitted in such form and at such time as the secretary may require. The schedule shall
show:
(1) A proposed monthly rate of expenditure for amounts appropriated for personal services;
(2) Each and every position budgeted under personal services for the next ensuing fiscal year,
with the monthly salary or compensation of each position;
(3) A proposed quarterly rate of expenditure for amounts appropriated for employee benefits,
current expenses, equipment and repairs and alterations classified by a uniform system of accounting
as called for in section twenty-five of this article for each item of every appropriation;
(4) A proposed yearly plan of expenditure for amounts appropriated for buildings and lands;
and
(5) A proposed quarterly plan of receipts itemized by type of revenue.
(b) The secretary may accept a differently itemized expenditure schedule from a spending
unit to which the above itemizations are not applicable.
(c) The secretary shall consult with and assist spending officers in the preparation of
expenditure schedules.
(d) Within fifteen days after the end of each month of the fiscal year, the head of every
spending unit shall certify to the legislative auditor the status of obligations and payments of the
spending unit for amounts of employee benefits, including, but not limited to, obligations and payments for social security withholding and employer matching, public employees insurance
premiums and public employees retirement and teachers retirement systems.
(e) In the event the legislative auditor determines from certified reports or from other sources
that any spending unit is not making all payments and transfers for employee benefits from funds
appropriated for that purpose, the legislative auditor shall notify the secretary of administration,
auditor and treasurer of the determination and thereafter no funds appropriated to the spending unit
shall be encumbered or expended for the salary or compensation to the head of the spending unit
until the legislative auditor determines that the payments or transfers are being made on a timely
basis.
(f) When a spending officer submits an expenditure schedule to the secretary as required by
this section, the spending officer shall at the same time transmit a copy thereof to the legislative
auditor and the Joint Committee on Government and Finance or its designee. If a spending officer
of a spending unit fails to transmit a copy to the legislative auditor on or before the beginning of the
fiscal year, the legislative auditor shall notify the secretary, auditor and treasurer of the failure and
thereafter no funds appropriated to the spending unit shall be encumbered or expended until the
spending officer thereof has transmitted a copy to the legislative auditor.
§11B-2-13. Examination and approval of expenditure schedules; amendments; copies to
legislative auditor.
(a) The secretary shall examine the expenditure schedule of each spending unit, and if it
conforms to the appropriations made by the Legislature, the requirements of this article and is in
accordance with sound fiscal policy, the secretary shall approve the schedule. In addition, the
secretary shall give special consideration in the approval of expenditure schedules to accounts in
which the appropriations consist predominantly of personal services funds so that the quarterly
allotments of funds to the various spending units are sufficient to pay personnel costs in the quarter
in which they are due.
(b) The expenditure of the appropriations made to a spending unit shall be only in accordance with the approved expenditure schedule unless the schedule is amended with the consent of the
secretary, or unless appropriations are reduced in accordance with the provisions of sections twenty
to twenty-two, inclusive, of this article. The spending officer of a spending unit shall transmit to the
legislative auditor a copy of each and every requested amendment to the schedule at the same time
that the requested amendment is submitted to the secretary. The secretary shall send to the
legislative auditor copies of any schedule amended with the secretary's approval.
§11B-2-14. Reserves for emergencies.
The secretary, with the approval of the governor, may require that an expenditure schedule
provide for a reserve for emergencies out of the total amount appropriated to the spending unit. The
amount of the reserve shall be determined by the secretary in consultation with the spending officer.
§11B-2-15. Reserves for public employees insurance program.
(a) There is hereby continued a special revenue account in the state treasury, designated the
'Public Employees Insurance Reserve Fund', which is an interest-bearing account and may be
invested in accordance with the provisions of article six, chapter twelve of this code, with the interest
income a proper credit to the fund.
(b) The fund shall consist of moneys appropriated by the Legislature and moneys transferred
annually pursuant to the provisions of subsection (c) of this section. These moneys shall be held in
reserve and appropriated by the Legislature only for the support of the programs provided by the
public employees insurance agency: Provided, That in only the fiscal year beginning the first day
of July, two thousand two, and in each of the next two fiscal years thereafter, and ending on the
thirtieth day of June, two thousand five, the moneys held in the fund may be appropriated to the
bureau of medical services of the department of health and human resources.
(c) Annually each state agency, except for the higher education central office created in
article four, chapter eighteen-b of this code; the higher education governing boards as defined in
articles two and three of said chapter; and the state institutions of higher education as defined in
section two, article one of said chapter shall transfer one percent of its annualized expenditures from state funds, excluding federal funds based on filled full-time equivalents as determined by the state
budget office as of the first day of April for that fiscal year, to the public employees insurance
reserve fund. The secretary may exempt that transfer only upon a showing by the requesting agency
that the continued operation of that agency is dependent upon receipt of the exemption.
(d) Annually the secretary shall provide a report to the governor and the Legislature on the
amount of reserves established pursuant to the provisions of this section, the number of exemptions
granted and the agencies receiving those exemptions.
§11B-2-16. Limitation on expenditures.
The expenditures of a spending unit during a quarter of the fiscal year shall not exceed the
amount of the approved allotment, unless the governor approves the expenditure of a larger amount.
Any amounts remaining unexpended at the close of the quarter shall be available for reallocation and
expenditure during any succeeding quarter of the same fiscal year.
§11B-2-17. Transfers between items of appropriation of executive, legislative and judicial
branches.
Notwithstanding any other provision of law to the contrary, there shall be no transfer of
amounts between items of appropriations nor shall moneys appropriated for any particular purpose
be expended for any other purpose by any spending unit of the executive, legislative or judicial
branch except as hereinafter provided:
(1) Any transfer of amounts between items of appropriations for the executive branch of state
government shall be made only as authorized by the Legislature.
(2) Any transfer of amounts between items of appropriations for the legislative branch of
state government shall be made only pursuant to the joint rules adopted by the body and any
amendments thereto, as certified to the state auditor, the state treasurer and the legislative auditor.
(3) Any transfer of amounts between items of appropriations for the judicial branch of state
government shall be made only pursuant to rules adopted by the supreme court of appeals and any
amendments thereto, as certified to the state auditor, the state treasurer and the legislative auditor.
§11B-2-18. Expenditure of excess in collections; notices to auditor and treasurer.
(a) If the amount actually collected by a spending unit exceeds the amount which it is
authorized to expend from collections, the excess in collections shall be set aside in a special surplus
fund for the spending unit. Expenditures from this fund shall be made only in accordance with the
following procedure:
(1) The spending officer shall submit to the secretary:
(A) A plan of expenditure showing the purposes for which the excess is to be expended; and
(B) A justification statement showing the reasons why the expenditure is necessary and
desirable.
(2) The secretary shall submit the request to the governor with his or her recommendation.
(3) If the governor approves the plan of expenditure and justification statement and is
satisfied that the expenditure is required to defray the additional cost of the service or activity of the
spending unit and that the expenditure is in accordance with sound fiscal policy, he or she may
authorize the use of the excess during the current fiscal year. Notices of the authorization shall be
sent to the state auditor, the state treasurer and the legislative auditor.
(b) An expenditure from a special surplus fund without the authorization of the governor, or
other than in accordance with this section, shall be an unlawful use of public funds.
§11B-2-19. Reports by spending units; copies to legislative auditor.
A spending unit shall submit to the secretary reports with respect to the work and
expenditures of the unit as the secretary may request for the purposes of this article. Upon receipt
thereof, the secretary shall immediately send a copy of each report to the legislative auditor.
§11B-2-20. Reduction of appropriations; powers of governor; revenue shortfall reserve fund
and permissible expenditures therefrom.
(a) Notwithstanding any provision of this section, the governor may reduce appropriations
according to any of the methods set forth in sections twenty-one and twenty-two of this article. The
governor may, in lieu of imposing a reduction in appropriations, request an appropriation by the Legislature from the revenue shortfall reserve fund established in this section.
(b) A revenue shortfall reserve fund is hereby continued within the state treasury. The
revenue shortfall reserve fund shall be funded as set forth in this subsection from surplus revenues,
if any, in the state fund, general revenue, as the surplus revenues may accrue from time to time.
Within sixty days of the end of each fiscal year, the secretary shall cause to be deposited into the
revenue shortfall reserve fund the first fifty percent of all surplus revenues, if any, determined to
have accrued during the fiscal year just ended. The revenue shortfall reserve fund shall be funded
continuously and on a revolving basis in accordance with this subsection up to an aggregate amount
not to exceed five percent of the total appropriations from the state fund, general revenue, for the
fiscal year just ended. If at the end of any fiscal year the revenue shortfall reserve fund is funded at
an amount equal to or exceeding five percent of the state's general revenue fund budget for the fiscal
year just ended, then there shall be no further obligation of the secretary under the provisions of this
section to apply any surplus revenues as set forth in this subsection until that time the revenue
shortfall reserve fund balance is less than five percent of the total appropriations from the state fund,
general revenue.
(c) Not earlier than the first day of November of each calendar year, if the state's fiscal
circumstances are such as to otherwise trigger the authority of the governor to reduce appropriations
under this section or section twenty-one or section twenty-two of this article, then in that event the
governor may notify the presiding officers of both houses of the Legislature in writing of his or her
intention to convene the Legislature pursuant to section nineteen, article VI of the constitution of
West Virginia for the purpose of requesting the introduction of a supplementary appropriation bill
or to request a supplementary appropriation bill at the next preceding regular session of the
Legislature to draw money from the surplus revenue shortfall reserve fund to meet any anticipated
revenue shortfall. If the Legislature fails to enact a supplementary appropriation from the revenue
shortfall reserve fund during any special legislative session called for the purposes set forth in this
section or during the next preceding regular session of the Legislature, then the governor may proceed with a reduction of appropriations pursuant to sections twenty-one and twenty-two of this
article. Should any amount drawn from the revenue shortfall reserve fund pursuant to an
appropriation made by the Legislature prove insufficient to address any anticipated shortfall, then
the governor may also proceed with a reduction of appropriations pursuant to sections twenty-one
and twenty-two of this article.
(d) Upon the creation of the fund, the Legislature is authorized and may make an
appropriation from the revenue shortfall reserve fund for revenue shortfalls, for emergency revenue
needs caused by acts of God or natural disasters or for other fiscal needs as determined solely by the
Legislature.
(e) Prior to the thirty-first day of October, in any fiscal year in which revenues are inadequate
to make timely payments of the state's obligations, the governor may by executive order, after first
notifying the presiding officers of both houses of the Legislature in writing, borrow funds from the
revenue shortfall reserve fund. The amount of funds borrowed under this subsection shall not exceed
one and one-half percent of the general revenue estimate for the fiscal year in which the funds are
to be borrowed, or the amount the governor determines is necessary to make timely payment of the
state's obligations, whichever is less. Any funds borrowed pursuant to this subsection shall be
repaid, without interest, and redeposited to the credit of the revenue shortfall reserve fund within
ninety days of their withdrawal.
§11B-2-21. Reduction of appropriations -- Reduction of appropriations from general revenue.
If the governor determines that the amounts, or parts thereof, appropriated from the general
revenue cannot be expended without creating an overdraft or deficit in the general fund, he or she
may instruct the secretary to reduce all appropriations out of general revenue in a degree as necessary
to prevent an overdraft or a deficit in the general fund.
§11B-2-22. Reduction of appropriations -- Reduction of appropriations from other funds.
(a) The governor, in the manner set forth in section twenty-one of this article, may reduce
appropriations from:
(1) Funds supported by designated taxes or fees; and
(2) Fees or other collections set aside for the support of designated activities or services.
(b) Each fund and each fee or collection account shall be treated separately.
§11B-2-23. Approval of secretary of requests for changes and receipt and expenditure of
federal funds by state agencies; copies or sufficient summary
information to be furnished to secretary; and consolidated report of
federal funds.
(a) Every agency of the state government when making requests or preparing budgets to be
submitted to the federal government for funds, equipment, material or services, the grant or
allocation of which is conditioned upon the use of state matching funds, shall have the request or
budget approved in writing by the secretary before submitting it to the proper federal authority.
When the federal authority has approved the request or budget, the agency of the state government
shall resubmit it to the secretary for recording before any allotment or encumbrance of the federal
funds can be made. Whenever any agency of the state government receives from any agency of the
federal government a grant or allocation of funds which do not require state matching, the state
agency shall report to the secretary the amount of the federal funds granted or allocated.
(b) Unless contrary to federal law, any agency of state government, when making requests
or preparing budgets to be submitted to the federal government for funds for personal services, shall
include in the request or budget the amount of funds necessary to pay for the costs of any fringe
benefits related to the personal service. For the purposes of this section, 'fringe benefits' means any
employment benefit granted by the state which involves state funds, including, but not limited to,
contributions to insurance, retirement and social security and which does not affect the basic rate of
pay of an employee.
(c) In addition to the other requirements of this section, the secretary shall, as soon as
possible after the end of each fiscal year but no later than the thirty-first day of December of each
year, submit to the governor a consolidated report which shall contain a detailed itemization of all federal funds received by the state during the preceding and current fiscal years, as well as those
scheduled or anticipated to be received during the next ensuing fiscal year. The itemization shall
show:
(1) Each spending unit which has received or is scheduled or expected to receive federal
funds in either of the fiscal years;
(2) The amount of each separate grant or distribution received or to be received; and
(3) A brief description of the purpose of every grant or other distribution, with the name of
the federal agency, bureau or department making the grant or distribution: Provided, That it is not
necessary to include in the report an itemization of federal revenue sharing funds deposited in and
appropriated from the revenue sharing trust fund, or federal funds received for the benefit of the
division of highways of the department of transportation.
(d) The secretary may obtain from the spending units any and all information necessary to
prepare a report.
(e) Notwithstanding the other provisions of this section and in supplementation of the
provisions of this section, the Legislature hereby determines that the department of revenue and its
secretary need to be the single and central agency for receipt of information and documents in respect
of applications for, and changes, receipt and expenditure of, federal funds by state agencies. Every
agency of state government, when making application for federal funds in the nature of a grant,
allocation or otherwise; when amending the applications or requests; when in receipt of federal
funds; or when undertaking any expenditure of federal funds, in all respective instances, shall
provide to the secretary of revenue document copies or sufficient summary information in respect
of the federal funds to enable the secretary to provide approval in writing for any activity in respect
to the federal funds.
§11B-2-24. Expenditure of appropriations -- Generally.
The expenditure of an appropriation made by the Legislature shall be conditioned upon
compliance by the spending unit with sections twenty-five, twenty-six, twenty-seven, twenty-eight and twenty-nine of this article.
§11B-2-25. Expenditure of appropriations -- Other than for purchases of commodities.
A requisition for expenditure, other than an order for the purchase of commodities, shall be
submitted as follows:
(1) The spending officer shall prepare and submit to the director a requisition showing the
amount, purpose and appropriation from which the expenditure is requested;
(2) The director of the budget shall examine the requisition and determine whether the
amount is within the quarterly allotment, is in accordance with the approved expenditure schedule,
and otherwise conforms to the provisions of this article;
(3) If the director approves the requisition, he or she shall encumber the proper account in
the amount of the requisition and shall transmit the requisition to the auditor for disbursement in
accordance with law; and
(4) If the director disapproves the requisition, he or she shall return it to the spending unit
with a statement of his or her reasons.
§11B-2-26. Expenditure of appropriations -- Purchases of commodities.
If a requisition is a request for a purchase of commodities, the spending unit shall transmit
the requisition to the state budget office for the purpose of ascertaining whether it conforms to the
expenditure schedule. If it does not conform, the requisition shall be returned by the state budget
office to the spending unit. If it conforms, the state budget office shall transmit the requisition to the
purchasing division of the department of administration for purchase in accordance with article three,
chapter five-a of this code. When a copy of the purchase order issued pursuant thereto is received
from the purchasing division by the director in accordance with the provisions of section fourteen,
article three, chapter five-a of this code, the director shall ascertain whether the unencumbered
balance in the appropriation concerned, in excess of all unpaid obligations, is sufficient to defray the
cost of the order and, if so, shall encumber the proper account and certify the fact to the purchasing
division and, if not, shall notify the purchasing division which, upon receipt of notification, shall return the requisition to the spending unit.
§11B-2-27. Expenditure of appropriations -- Payment of personal services.
A requisition for the payment of personal services shall upon receipt by the director of the
budget be checked against the personnel schedule of the spending unit making the requisition. The
director shall approve a requisition for personal services only if the amounts requested are in
accordance with the personnel schedule of the spending unit.
§11B-2-28. Expenditure of appropriations -- Legislative and judicial expenditures.
(a) The provisions of sections twenty-six and twenty-seven of this article shall not apply to
the expenditure of amounts appropriated for the use of the Legislature or for the judiciary.
(b) In the case of appropriations made for the Legislature, the clerk of the House of Delegates
or the clerk of the Senate shall present his or her requisition directly to the auditor.
(c) In the case of appropriations made for the judiciary, the clerk of the court shall present
his or her requisition or claim directly to the auditor.
(d) In the case of appropriations made for criminal charges, the clerk or the proper officer
shall present his or her claim directly to the auditor.
§11B-2-29. Appropriations for officers, commissions, boards or institutions without office at
capitol.
All appropriations now or hereafter made for officers, commissions, boards or institutions,
public or private, other than state institutions of higher education, state charitable institutions, state
hospitals and sanitariums and state penal and correctional institutions, not having an office at the
state capitol, shall, unless otherwise provided by law, be expended on requisitions of the officer,
commission, board or institution, after approval by the secretary of the department of revenue.
§11B-2-30. Submission of requests, amendments, reports, etc., to legislative auditor;
misdemeanor penalty for noncompliance.
(a) The provisions of sections three, eleven, twelve, thirteen, nineteen and twenty-three of
this article, and section twenty-five, article two, chapter five-a, requiring the secretary or the spending officer of the spending units to supply copies of the documents specified therein to the
legislative auditor shall be strictly adhered to by all persons.
(b) Any failure by any person to comply with the provisions of subsection (a) of this section
shall be a misdemeanor and, upon conviction thereof, the person shall be fined the sum of one
thousand dollars. This penalty shall be in addition to other penalties provided elsewhere in this
article and other remedies provided by law.
§11B-2-31. Effectuation of transfer of budget section and transition.
To effectuate the transfer of the budget section of the finance division, department of
administration to the department of revenue upon the effective date of this section in the year two
thousand four:
(1) All employees, records, responsibilities, obligations, assets and property, of whatever kind
and character, of the budget section, finance division of the department of administration are hereby
transferred to the state budget office of the department of revenue beginning the effective date of this
section in the year two thousand four.
(2) The unencumbered balances of all funds allocated to the budget section of the division
of finance for fiscal years ending the thirtieth day of June, two thousand four, and the fiscal year
ending the thirtieth day of June, two thousand five, are hereby transferred to the state budget office
of the department of revenue on the effective date of this section in the year two thousand four.
(3) All orders, determinations, rules, permits, grants, contracts, certificates, licenses, waivers,
bonds, authorizations and privileges which have been issued, made, granted or allowed to become
effective by the governor, any state department or agency or official thereof, or by a court of
competent jurisdiction, in the performance of functions which have been transferred to the secretary
of the department of revenue or to the department of revenue, and were in effect on the date the
transfer occurred continue in effect, for the benefit of the department, according to their terms until
modified, terminated, superseded, set aside, or revoked in accordance with the law by the governor,
the secretary of revenue, or other authorized official, a court of competent jurisdiction, or by operation of law.
(4) Any proceedings, including, but not limited to, notices of proposed rulemaking, in which
the budget section, finance division of the department of administration was an initiating or
responding party are not affected by the transfer of the budget section to the department of revenue.
Orders issued in any proceedings continue in effect until modified, terminated, superseded or
revoked by the governor, the secretary of revenue, by a court of competent jurisdiction, or by
operation of law. Nothing in this subdivision prohibits the discontinuance or modification of any
proceeding under the same terms and conditions and to the same extent that a proceeding could have
been discontinued or modified if the division had not been transferred to the department of revenue.
Transfer of the budget section of the finance division does not affect suits commenced prior to the
effective date of the transfer and all such suits and proceedings shall be had, appeals taken and
judgments rendered in the same manner and with like effect as if the transfer had not occurred,
except that the secretary of the department of revenue or other officer may, in an appropriate case,
be substituted or added as a party."
The bill was then ordered to third reading.
S. B. 321, Providing personal income tax adjustment to gross income of certain retirees; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page three, section twelve-d, line twenty-three, after the words "two
thousand one", by changing the period to a colon and inserting the following: "Provided, however,
That the adjustment shall terminate for the tax years on or after the first day of January, two thousand
four seven" followed by a period.
The bill was then ordered to third reading.
S. B. 323, Continuing office of explosives and blasting; on second reading, coming up in
regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 404, Clarifying term "behavioral health services"; removing "community care services"; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page thirteen, section two, line two hundred forty-two, following the
word "abuse", by inserting the word "problems".
And,
On page thirteen, section two, line two hundred forty-six, after the words "such care", by
striking out the period and the remainder of the subsection and inserting in lieu thereof a colon and
the following words: "Provided, That gross receipts derived from providing behavioral health
services that are included in the provider's measure of tax under article twenty-seven of this chapter
shall not be include in that provider's measure of tax under this article. The amendment to this
definition in the year two thousand four is intended to clarify the intent of the Legislature as to the
activities that qualify as behavioral health services, and this clarification shall be applied
retrospectively to the effective date of the amendment to this section in which the definition of
'behavioral health services' was originally provided as enacted during the first extraordinary session
of the Legislature in the year one thousand nine hundred ninety-three.
__(2) 'Community care services' means home and community care services furnished by a
provider pursuant to an individual plan of care, which also includes senior citizens groups that
provide such services, but does not include services of home health agencies."
The bill was then ordered to third reading.
S. B. 406, Relating to victim notification of defendant's release; on second reading, coming
up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page one, following the enacting section, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 11A. VICTIM PROTECTION ACT OF 1984.
§61-11A-8. Notification to victim of offenders's release, placement, or escape from custody.
(a) At the time a criminal prosecution is commenced by the filing of a complaint, if the
complaint charges a person with committing an offense described in subsection (e) of this section,
then in such case the prosecuting attorney is required to provide notice, in writing or by telephone,
to the victim or a family member, that he or she may request that they be notified prior to or at the
time of any release of the accused from custody pending judicial proceedings.
(b) If a person is convicted of an offense described in subsection (e) of this section, the
prosecuting attorney is required to provide notice, in writing or by telephone, to the victim or a
family member that he or she may request that they be notified prior to or at the time of sentencing,
if the convicted person will be placed on work release, home confinement, or probation.
(c) If a person is convicted of an offense described in subsection (e) of this section, and is
imprisoned in a state correctional facility or confined in a county or regional jail, the commissioner
of corrections, the regional jail supervisor or the sheriff, as the case may be, is required to provide
notice, in writing or by telephone, to the victim or a family member that he or she may request that
they be notified prior to or at the time of:
(1) Releasing the convicted person from imprisonment in any correctional facility;
(2) Releasing the convicted person from confinement in any county or regional jail;
(3) Placing the convicted person in a halfway house or other non-secure facility to complete
his or her sentence; or
(4) Any escape by the convicted person from a state correctional facility or a county or
regional jail.
(d) The notice shall include instructions for the victim or the victim's family member on how
to request the notification.
(e) Offenses which are subject to the provisions of this section are as follows:
(1) Murder;
(2) Aggravated robbery;
(3) Sexual assault in the first degree;
(4) Kidnapping;
(5) Arson;
(6) Any sexual offense against a minor; or
(7) Any violent crime against a person.
(f) The commissioner of corrections, a regional jail supervisor, a sheriff or a prosecuting
attorney who receives a written request for notification shall provide notice, in writing or by
telephone, to the last known address or addresses or telephone number or numbers provided by the
victim or a member of the victim's family, or in the case of a minor child, to the custodial parent of
the child, in accordance with the provisions of this section. In case of escape, notification shall be
by telephone, if possible.
(g) If one or more family members request notification, and if the victim is an adult and is
alive and competent, notification shall be sent to the victim, if possible, notwithstanding that the
victim did not request the notification.
(h) If notification by telephone to a victim is attempted, notification is not complete unless
it is given directly to the person requesting notification and after that person's identity has been
verified. An attempted notification made to a voice mail or another recording device or to another
member of the household is insufficient.
(i) For the purposes of this section, the following words or phrases defined in this subsection
have the meanings ascribed to them. These definitions are applicable unless a different meaning
clearly appears from the context.
(1)'Filing of a complaint' means the filing of a complaint in accordance with the
requirements of rules promulgated by the supreme court of appeals or the provisions of this code;
(2)'Victim' means a victim of a crime listed in subsection (e) of this section who is alive and
competent.
(3) 'Victim's family member' means a member of the family of a victim of a crime listed in
subsection (e) of this section who is not alive and competent."
The bill was then ordered to third reading.
Com. Sub. for S. B. 420, Relating generally to motor fuels excise tax; on second reading,
coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page three, section six, line four, following the word "invoiced", by
inserting the work "gallons".
And,
On page seven, section nine, at the beginning of line three, by striking out the words "is
exempt" and inserting in lieu thereof the words "are exempt".
The bill was then ordered to third reading.
S. B. 450, Relating to long-term care insurance policies; on second reading, coming up in
regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page two, after the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following language:
"That §33-15A-4, §33-15A-5, §33-15A-6 and §33-15A-7 of the code of West Virginia, 1931,
as amended, be amended and reenacted; and that said code be amended by adding thereto four new
sections, designated §33-15A-8, §33-15A-9, and §33-15A-10, all to read as follows:
ARTICLE 15A. WEST VIRGINIA LONG-TERM CARE INSURANCE ACT.
§33-15A-4. Definitions.
(a) 'Long-term care insurance' means any insurance policy or rider advertised, marketed,
offered or designed to provide benefits coverage for not less than twenty-four twelve consecutive
months for each covered person on an expense incurred, indemnity, prepaid or other basis; for one
or more necessary or medically necessary diagnostic, preventive, therapeutic, rehabilitative,
maintenance or personal care services, provided in a setting other than an acute care unit of a
hospital. The term includes group and individual, annuities and life insurance policies or riders whether that provide directly or supplement long-term care insurance. The term also includes a
policy or rider that provides for payment of benefits based upon cognitive impairment or the loss of
functional capacity. The term shall also include qualified long-term care insurance contracts. Long-
term care insurance may be issued by insurers; fraternal benefit societies; nonprofit health, hospital,
and medical service corporations; prepaid health plans; health maintenance organizations, prepaid
limited health service organizations or any similar organization. Any to the extent they are otherwise
authorized to issue life or health insurance. Long-term care insurance shall not include any insurance
policy which that is offered primarily to provide basic medicare supplement coverage, basic hospital
expense coverage, basic medical-surgical expense coverage, hospital confinement indemnity
coverage, major medical expense coverage, disability income protection or related asset-protection
coverage, accident only coverage, specified disease or specified accident coverage, or limited benefit
health coverage. which also contains With regard to life insurance, this term does not include life
insurance policies that accelerate the death benefit specifically for one or more of the qualifying
events of terminal illness, medical conditions requiring extraordinary medical intervention or
permanent institutional confinement, and that provide the option of a lump-sum payment for those
benefits and where neither the benefits nor the eligibility for the benefits is conditioned upon the
receipt of long-term care. Notwithstanding any other provision of this article, any product
advertised, marketed or offered as long-term care insurance benefits for at least six months shall
comply with be subject to the provisions of this article.
(b) 'Applicant' means:
(1) In the case of an individual long-term care insurance policy, the person who seeks to
contract for benefits; and
(2) In the case of a group long-term care insurance policy, the proposed certificate holder.
(c) 'Certificate' means, for the purposes of this article, any certificate issued under a group
long-term care insurance policy, which policy has been delivered or issued for delivery in this state.
(d) 'Commissioner' means the insurance commissioner of this state.
(e) 'Group long-term care insurance' means a long-term care insurance policy which that is
delivered or issued for delivery in this state and issued to:
(1) One or more employers or labor organizations, or to a trust or to the trustees of a fund
established by one or more employers or labor organizations, or a combination thereof, for
employees or former employees or a combination thereof or for members or former members or a
combination thereof, of the labor organizations; or
(2) Any professional, trade or occupational association for its members or former or retired
members, or combination thereof, if the association:
(A) Is composed of individuals all of whom are or were actively engaged in the same
profession, trade or occupation; and
(B) Has been maintained in good faith for purposes other than obtaining insurance; or
(3) An association or a trust or the trustee or trustees of a fund established, created or
maintained for the benefit of members of one or more associations. Prior to advertising, marketing
or offering the policy within this state, the association or associations, or the insurer of the
association or associations, shall file evidence with the commissioner that the association or
associations have at the outset a minimum of one hundred persons and have been organized and
maintained in good faith for the purposes other than that of obtaining insurance; have been in active
existence for at least one year; and have a constitution and bylaws which that provide that:
(A) The association or associations hold regular meetings not less than annually to further
purposes of the members;
(B) Except for credit unions, the association or associations collect dues or solicit
contributions from members; and
(C) The members have voting privileges and representation on the governing board and
committees.
Thirty days after the filing the association or associations will be deemed to satisfy such the
organizational requirements, unless the commissioner makes a finding that the association or
associations do not satisfy those organizational requirements.
(4) A group other than as described in subdivisions (1), (2) and (3), subsection (e) of this
section, subject to a finding by the commissioner that:
(A) The issuance of the group policy is not contrary to the best interest of the public;
(B) The issuance of the group policy would result in economies of acquisition or
administration; and
(C) The benefits are reasonable in relation to the premiums charged.
(f) 'Policy' means, for the purposes of this article, any policy, contract, subscriber agreement,
rider or endorsement delivered or issued for delivery in this state by an insurer; fraternal benefit
society; nonprofit health, hospital, or medical service corporation; prepaid health plan; health
maintenance organization, prepaid limited health service organization or any similar organization.
(g) (1) 'Qualified long-term care insurance contract' or 'federally tax qualified long-term care
insurance contract' means an individual or group insurance contract that meets the requirements of
section 7702B(b) of the Internal Revenue Code of 1986, as amended, as follows:
(A) The only insurance protection provided under the contract is coverage of qualified long-
term care services. A contract shall not fail to satisfy the requirements of this paragraph by reason
of payments being made on a per diem or other periodic basis without regard to the expenses
incurred during the period to which the payments relate;
(B) The contract does not pay or reimburse expenses incurred for services or items to the
extent that the expenses are reimbursable under Title XVIII of the Social Security Act, as amended,
or would be so reimbursable but for the application of a deductible or coinsurance amount. The
requirements of this paragraph do not apply to expenses that are reimbursable under Title XVIII of
the Social Security Act only as a secondary payor. A contract shall not fail to satisfy the
requirements of this paragraph by reason of payments being made on a per diem or other periodic basis without regard to the expenses incurred during the period to which the payments relate;
(C) The contract is guaranteed renewable, within the meaning of section 7702B(b)(1)(C) of
the Internal Revenue Code of 1986, as amended;
(D) The contract does not provide for a cash surrender value or other money that can be paid,
assigned, pledged as collateral for a loan, or borrowed except as provided in paragraph E,
subdivision (1), subsection (g) of this section.
(E) All refunds of premiums and all policyholder dividends or similar amounts under the
contract are to be applied as a reduction in future premiums or to increase future benefits, except that
a refund on the event of death of the insured or a complete surrender or cancellation of the contract
cannot exceed the aggregate premiums paid under the contract; and
(F) The contract meets the consumer protection provisions set forth in Section 7702B(g) of
the Internal Revenue Code of 1986, as amended.
(2) 'Qualified long-term care insurance contract' or 'federally tax-qualified long-term care
insurance contract' also means the portion of a life insurance contract that provides long-term care
insurance coverage by rider or as part of the contract and that satisfies the requirements of Sections
7702B(b) and (e) of the Internal Revenue Code of 1986, as amended.
§33-15A-5. Extraterritorial jurisdiction - Group long-term care insurance.
(a) No group long-term care insurance coverage may be offered to a resident of this state
under a group policy issued in another state to a group described in subdivision (4), subsection (e),
section four of this article unless this state or another state having statutory and regulatory long-term
care insurance requirements substantially similar to those adopted in this state has made a
determination that such requirements have been met.
(b) Any such group policy form and any group certification form issued under the group,
shall be filed with the commissioner for informational purposes with evidence of the determination
required by subsection (a) of this section.
§33-15A-6. Disclosure and performance standards for long-term care insurance.
(a) The commissioner may adopt rules and regulations that include standards for full and fair
disclosure setting forth the manner, content and required disclosures for the sale of long-term care
insurance policies, terms of renewability, initial and subsequent conditions of eligibility,
nonduplication of coverage provisions, coverage of dependents, preexisting conditions, termination
of insurance, continuation or conversion, probationary periods, limitations, exceptions, reductions,
elimination periods, requirements for replacement, recurrent conditions and definitions of terms.
(b) No long-term care insurance policy may:
(1) Be canceled, nonrenewed or otherwise terminated on the grounds of the age or the
deterioration of the mental or physical health of the insured individual or certificate holder; or
(2) Contain a provision establishing a new waiting period in the event existing coverage is
converted to or replaced by a new or other form within the same company, except with respect to an
increase in benefits voluntarily selected by the insured individual or group policyholder; or
(3) Provide coverage for skilled nursing care only or provide significantly more coverage for
skilled care in a facility than coverage for lower levels of care.
(c) Preexisting condition:
(1) No long-term care insurance policy or certificate other than a policy or certificate
thereunder issued to a group as defined in subdivision (1), subsection (e), section four of this article
shall use a definition of 'preexisting condition' which that is more restrictive than the following:
Preexisting condition means a condition for which medical advice or treatment was recommended
by, or received from a provider of health care services, within six months preceding the effective
date of coverage of an insured person.
(2) No long-term care insurance policy or certificate other than a policy or certificate
thereunder issued to a group as defined in subdivision (1), subsection (e), section four of this article
may exclude coverage for a loss or confinement which that is the result of a preexisting condition
unless such loss or confinement begins within six months following the effective date of coverage
of an insured person.
(3) The commissioner may extend the limitation periods set forth in subdivision (1) and (2),
subsection (c) of this section as to specific age group categories in specific policy forms upon
findings that the extension is in the best interest of the public.
(4) The definition of 'preexisting condition' does not prohibit an insurer from using an
application form designed to elicit a the complete health history of an applicant, and, on the basis
of the answers on that application, from underwriting in accordance with that insurer's established
underwriting standards. Unless otherwise provided in the policy or certificate, a preexisting
condition, regardless of whether it is disclosed on the application, need not be covered until the
waiting period described in subdivision (2), subsection (c) of this section expires. No long-term care
insurance policy or certificate may exclude or use waivers or riders of any kind to exclude, limit or
reduce coverage or benefits for specifically named or described preexisting diseases or physical
conditions beyond the waiting period described in subdivision (2), subsection (c) of this section.
(d) Prior hospitalization/institutionalization:
(1) Effective July 1, 1990, no No long-term care insurance policy may be delivered or issued
for delivery in this state if such the policy:
(A) Conditions eligibility for any benefits on a prior hospitalization requirement; or
(B) Conditions eligibility for benefits provided in an institutional care setting on the receipt
of a higher level of institutional care.; or
(C) Conditions eligibility for any benefits other than waiver of premium, post-confinement,
post-acute care or recuperative benefits on a prior institutionalization requirement.
(2) (A) Effective July 1, 1990, a A long-term care insurance policy containing any limitations
or conditions for eligibility other than those prohibited above in paragraph (1) post-confinement,
post-acute care or recuperative benefits shall clearly label in a separate paragraph of the policy or
certificate entitled 'Limitations or Conditions on Eligibility for Benefits' such limitations or
conditions, including any required number of days of confinement.
(A) A long-term care insurance policy containing a benefit advertised, marketed or offered as a home health care or home care benefit may not condition receipt of benefits on a prior
institutionalization requirement.
(B) A long-term care insurance policy which or rider that conditions eligibility of
noninstitutional benefits on the prior receipt of institutional care shall not require a prior institutional
stay of more than thirty days. for which benefits are paid
(3) No long-term care insurance policy which or rider that provides benefits only following
institutionalization shall condition such benefits upon admission to a facility for the same or related
conditions within a period of less than thirty days after discharge from the institution.
(e) The commissioner may adopt regulations rules establishing loss ratio standards for long-
term care insurance policies provided that a specific reference to long-term care insurance policies
is contained in the regulation rule.
(f) Right to return - free look:
(1) Individual long-term Long-term care insurance policyholders applicants shall have the
right to return the policy or certificate within ten thirty days of its delivery and to have the premium
refunded if, after examination of the policy or certificate, the applicant policyholder is not satisfied
for any reason. Individual long-term care insurance policies shall have a notice prominently printed
on the first page of the policy or attached thereto stating in substance that the policyholder shall have
the right to return the policy within ten days of its delivery and to have the premium refunded if, after
examination of the policy, the policyholder is not satisfied for any reason.
(2) A person insured under a long-term care insurance policy issued pursuant to a direct
response solicitation shall have the right to return the policy within thirty days of its delivery and to
have the premium refunded if, after examination, the insured person is not satisfied for any reason.
Long-term care insurance policies issued pursuant to a direct response solicitation and certificates
shall have a notice prominently printed on the first page or attached thereto stating in substance that
the insured person applicant shall have the right to return the policy or certificate within thirty days
of its delivery and to have the premium refunded if, after examination the insured person of the policy or certificate, other than a certificate issued pursuant to a policy issued to a group defined in
subdivision (1), subsection (e), section four of this article, the applicant is not satisfied for any
reason.
(2) This subsection shall also apply to denials of applications and any refund must be made
within thirty days of the return or denial.
(g) Outline of coverage:
(1) An outline of coverage shall be delivered to a prospective applicant for long-term care
insurance at the time of initial solicitation through means which that prominently direct the attention
of the recipient to the document and its purpose.
(A) The commissioner shall prescribe a standard format, including style, arrangement and
overall appearance, and the content of an outline of coverage.
(B) In the case of agent solicitations, an agent must deliver the outline of coverage prior to
the presentation of an application or enrollment form.
(C) In the case of direct response solicitations, the outline of coverage must be presented in
conjunction with any application or enrollment form.
(D) In the case of a policy issued to a group defined in subdivision (1), subsection (e), section
four of this article, an outline of coverage shall not be required to be delivered, provided that the
information described in paragraphs (A) through (F), subdivision (2) of this subsection, is contained
in other materials relating to enrollment. Upon request, these other materials shall be made available
to the commissioner.
(2) The outline of coverage shall include:
(A) A description of the principal benefits and coverage provided in the policy;
(B) A statement of the principal exclusions, reductions, and limitations contained in the
policy;
(C) A statement of the terms under which the policy or certificate, or both, may be continued
in force or discontinued, including any reservation in the policy of a right to change premium.
Continuation or conversion provisions of group coverage shall be specifically described;
(D) A statement that the outline of coverage is a summary only, not a contract of insurance,
and that the policy or group master policy contain governing contractual provisions;
(E) A description of the terms under which the policy or certificate may be returned and
premium refunded; and
(F) A brief description of the relationship of cost of care and benefits; and
(G) A statement that discloses to the policyholder or certificate holder whether the policy is
intended to be a federally tax-qualified long-term care insurance contract under 7702(B)(b) of the
Internal Revenue Code of 1986, as amended.
(h) A certificate issued pursuant to a group long-term care insurance policy which policy that
is delivered or issued for delivery in this state shall include:
(1) A description of the principal benefits and coverage provided in the policy;
(2) A statement of the principal exclusions, reductions and limitations contained in the
policy; and
(3) A statement that the group master policy determines governing contractual provisions.
(i) Any policy advertising, marketing or offering long-term care or nursing home insurance
benefits shall comply with the provisions of this act. If an applicant for a long-term care insurance
contract or certificate is approved, the issuer shall deliver the contract or certificate of insurance to
the applicant no later than thirty days after the date of approval.
(j) At the time of policy delivery, a policy summary shall be delivered for an individual life
insurance policy that provides long-term care benefits within the policy or by rider. In the case of
direct response solicitations, the insurer shall deliver the policy summary upon the applicant's
request, but regardless of request shall make delivery no later than at the time of policy delivery. In
addition to complying with all applicable requirements, the summary shall also include:
(1) An explanation of how the long-term care benefit interacts with other components of the
policy, including deductions from death benefits;
(2) An illustration of the amount of benefits, the length of benefit, and the guaranteed lifetime
benefits if any, for each covered person;
(3) Any exclusions, reductions and limitations on benefits of long-term care;
(4) A statement that any long-term care inflation protection option required by section eight
of the commissioner's rule relating to long-term care insurance is not available under this policy; and
(5) If applicable to the policy type, the summary shall also include:
(A) A disclosure of the effects of exercising other rights under the policy;
(B) A disclosure of guarantees related to long-term care costs of insurance charges; and
(C) Current and projected maximum lifetime benefits.
(k) Any time a long-term care benefit, funded through a life insurance vehicle by the
acceleration of the death benefit, is in benefit payment status, a monthly report shall be provided to
the policyholder. The report shall include:
(1) Any long-term care benefits paid out during the month;
(2) An explanation of any changes in the policy, for example death benefits or cash values,
due to long-term care benefits being paid out; and
(3) The amount of long-term care benefits existing or remaining.
(l) If a claim under a long-term care insurance contract is denied, the issuer shall, within sixty
days of the date of a written request by the policyholder or certificate holder, or a representative
thereof:
(1) Provide a written explanation of the reasons for the denial; and
(2) Make available all information directly related to the denial.
(m) Any policy or rider advertised, marketed or offered as long-term care or nursing home
insurance shall comply with the provisions of this article.
§33-15A-7. Incontestability period.
(a) For a policy or certificate that has been in force for less than six months an insurer may
rescind a long-term care insurance policy or certificate or deny an otherwise valid long-term care
insurance claim upon a showing of misrepresentation that is material to the acceptance for coverage.
(b) For a policy or certificate that has been in force for at least six months but less than two
years, an insurer may rescind a long-term care insurance policy or certificate or deny an otherwise
valid long-term care insurance claim upon a showing of misrepresentation that is both material to
the acceptance for coverage and which pertains to the condition for which benefits are sought.
(c) After a policy or certificate has been in force for two years it is not contestable upon the
grounds of misrepresentation alone. The policy or certificate may be contested only upon a showing
that the insured knowingly and intentionally misrepresented relevant facts relating to the insured's
health.
(d) No long-term care insurance policy or certificate may be field issued based on medical
or health status. For purposes of this subsection, 'field issued' means a policy or certificate issued
by an agent or a third-party administrator pursuant to the underwriting authority granted to the agent
or third party administrator by an insurer.
(e) If an insurer has paid benefits under the long-term care insurance policy or certificate, the
benefit payments may not be recovered by the insurer in the event that the policy or certificate is
rescinded.
(f) In the event of the death of the insured, this section shall not apply to the remaining death
benefit of a life insurance policy that accelerates benefits for long-term care. In this situation, the
remaining death benefits under these policies shall be governed by section four, article thirteen of
this chapter. In all other situations, this section shall apply to life insurance policies that accelerate
benefits for long-term care.
§33-15A-8. Nonforfeiture benefits.
(a) Except as provided in subsection (b) of this section, a long-term care insurance policy
may not be delivered or issued for delivery in this state unless the policyholder or certificate holder has been offered the option of purchasing a policy or certificate including a nonforfeiture benefit.
The offer of a nonforfeiture benefit may be in the form of a rider that is attached to the policy. In
the event the policyholder or certificate holder declines the nonforfeiture benefit, the insurer shall
provide a contingent benefit upon lapse that shall be available for a specified period of time
following a substantial increase in premium rates.
(b) When a group long-term care insurance policy is issued, the offer required in subsection
(a) of this section shall be made to the group policyholder. However, if the policy is issued as group
long-term care insurance as defined in subdivision (4), subsection (e), section four of this article,
other than to a continuing care retirement community or other similar entity, the offering shall be
made to each proposed certificate holder.
(c) The commissioner may promulgate rules pursuant to article twenty-nine-a of this code
specifying the type or types of nonforfeiture benefits to be offered as part of long-term care insurance
policies and certificates, the standards for nonforfeiture benefits, and the rules regarding contingent
benefit upon lapse, including a determination of the specified period of time during which a
contingent benefit upon lapse will be available and the substantial premium rate increase that triggers
a contingent benefit upon lapse as described in subsection (a) of this section.
§33-15A-9. Authority to promulgate rules.
The commissioner may issue reasonable rules pursuant to article twenty-nine-a of this code
to promote premium adequacy and to protect the policyholder in the event of substantial rate
increases, and to establish minimum standards for marketing practices, agent compensation, agent
testing, penalties and reporting practices for long-term care insurance.
§33-15A-10. Penalties.
In addition to any other penalties provided by the laws of this state, any insurer and any agent
found to have violated any requirement of this state relating to the regulation of long-term care
insurance or the marketing of such insurance shall be subject to a fine of up to three times the
amount of any commissions paid for each policy involved in the violation or up to ten thousand dollars, whichever is greater."
The bill was then ordered to third reading.
S. B. 479, Relating to licensing foreign insurers; on second reading, coming up in regular
order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page three, section seven, line twenty-six, following the words
"provisions of", by inserting the words "section 1501" and a comma.
The bill was then ordered to third reading.
S. B. 482, Reclassifying juvenile detention and corrections facility employees; on second
reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 501, Relating to disqualification for public retirement plan benefits; other provisions;
on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted, amending the bill on page two, after the enacting clause, by striking out the remainder of
the bill and inserting in lieu thereof the following:
"That §5-10A-2 and §5-10A-3 of the code of West Virginia, 1931, as amended, be amended
and reenacted; that said code be amended by adding thereto a new section, designated §5-10A-11;
and that §15-2A-2 and §15-2A-6 of said code be amended and reenacted, 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 10A. DISQUALIFICATION FOR PUBLIC RETIREMENT PLAN BENEFITS.
§5-10A-2. Definitions.
(a) 'Retirement plan' or 'plan' means the public employees retirement act, pursuant to article
ten, chapter five of this code; each municipal employees retirement plan, pursuant to article twenty-two, chapter eight of this code; each policemen's and firemen's pension and relief fund, pursuant to
article twenty-two, chapter eight of this code; the death, disability and retirement fund of the
department of public safety, pursuant to article two, chapter fifteen of this code; the West Virginia
state police retirement system, pursuant to article two-a, chapter fifteen of this code; the state
teachers retirement system, pursuant to article seven-a, chapter eighteen of this code; the teachers'
defined contribution retirement system, pursuant to article seven-b, chapter eighteen of this code;
the deputy sheriff retirement system, pursuant to article fourteen-d, chapter seven of this code;
supplemental and additional retirement plans, pursuant to section four-a, article twenty-three, chapter
eighteen of this code; the judges' retirement system, pursuant to article nine, chapter fifty-one of this
code; and any other plan established pursuant to this code for the payment of pension, annuity,
disability or other benefits to any person by reason of his service as an officer or employee of this
state or of any political subdivision, agency or instrumentality thereof, whenever such plan is
supported, in whole or in part, by public funds.
(b) 'Beneficiary' means any person eligible for or receiving benefits on account of the service
for a public employer by a participant in a retirement plan.
(c) 'Benefits' means pension, annuity, disability or any other benefits granted pursuant to a
retirement plan.
(d) 'Conviction' means a conviction on or after the effective date of this article in any federal
or state court of record whether following a plea of guilty, not guilty or nolo contendere and whether
or not the person convicted was serving as an officer or employee of a public employer at the time
of the conviction.
(e) 'Less than honorable service' means:
(1) Impeachment and conviction of a participant under the provisions of section nine, article
four of the constitution of West Virginia, except for a misdemeanor; or
(2) Conviction of a participant of a felony for conduct related to his office or employment,
which he committed while holding such office or during such employment; or
(3) Conduct of a participant which constitutes all of the elements of a crime described in
either of the foregoing subdivision (1) or (2) but for which the participant was not convicted because:
(i) Having been indicted for such crime, he or she made a plea bargaining agreement pursuant
to which he pleaded guilty to or nolo contendere to a lesser crime; or
(ii) Having been indicted for such crime, he or she was granted immunity from prosecution
for the same; or
(iii) Having been named as an unindicted coconspirator in an indictment of another person
for such a crime, which indictment resulted in the conviction of such other person, he or she was not
prosecuted for such crime or conspiracy therefor.
(f) 'Participant' means any person eligible for or receiving any benefit under a retirement plan
on account of his service as an officer or employee for a public employer.
(g) 'Public employer' means the state of West Virginia and any political subdivision, agency
or instrumentality thereof for which there is established a retirement plan.
(h) 'Supervisory board' or 'board' means the board of trustees of the West Virginia public
employees retirement system; the board of trustees of any municipal retirement fund; the board of
trustees of any policemen's or firemen's retirement plan; the retirement board of the department of
public safety; the state treasurer, state auditor and one other member of the board of public works
so designated by the governor to sit on the supervisory board of the judges' retirement plan (who
shall for the purpose of this article constitute the board); the designated members of the state teachers
retirement system established pursuant to section five, article seven-a, chapter eighteen of this code;
the governing board of any supplemental retirement plan instituted pursuant to authority granted by
section four-a, article twenty-three, chapter eighteen of this code; and any other board, commission
or public body having the duty to supervise and operate any retirement plan.
§5-10A-3. Notice of intention to terminate benefits; waiver; failure to reply.
Whenever a supervisory board, upon receipt of a verified complaint or otherwise, has
reasonable cause to believe that a participant rendered less than honorable service as defined in section two of this article, it shall notify the affected participant or beneficiary that it believes that
the participant rendered less than honorable service and that the participant or beneficiary is thereby
ineligible to receive benefits. No supervisory board shall may issue such notice:
(1) If more than one year has two years have elapsed since the judgment of conviction upon
which such notice is based became final; or
(2) In the cases described in subdivision (3), subsection (e), section two of this article, if more
than one year has two years have elapsed since, as the case may be, the plea bargaining agreement,
the grant of immunity or, in the event the participant was named as an unindicted co-conspirator for
a crime, the conviction of another person for such crime; or: Provided, That with respect to conduct
which occurred prior to the effective date of this section no more than one year may have elapsed.
__________(3) With respect to conduct which occurred prior to the effective date of this article.
The notice shall contain a concise statement of the reasons why the board believes that the
participant rendered less than honorable service and shall be made either by personal service or by
certified mail, return receipt requested, to the address which the participant or beneficiary maintains
for purposes of corresponding with the board. If notice is made by certified mail, service shall be
deemed complete upon mailing and a completed receipt shall constitute proof of the receipt thereof.
The notice shall inform the participant or beneficiary that he has the right to demand that the board
seek a determination in circuit court of his eligibility for benefits and membership in the retirement
plan by notifying the board of such demand within forty days. The notice shall also inform the
participant or beneficiary that the board will terminate the benefits in accordance with section four
of this article and refund the participant's contributions with interest less benefits previously paid
as provided in section six of this article if the participant or beneficiary either waives the right to
demand that the board take the matter before the circuit court or fails to respond to the board's notice
within forty days after service.
§5-10A-11. Notification from prosecuting attorneys.
The prosecuting attorney of each county of this state shall within sixty days of a conviction or plea agreement in his or her county meeting the definition of less than honorable service report
the same to the executive director of the consolidated public retirement board, including with the
report the indictment, plea agreement or any order finding the defendant guilty.
CHAPTER 15. PUBLIC SAFETY.
ARTICLE 2A. WEST VIRGINIA STATE POLICE RETIREMENT SYSTEM.
§15-2A-2. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Active military duty' means full-time active duty with the armed forces of the United
States, namely, the United States air force, army, coast guard, marines or navy; and service with the
national guard or reserve military forces of any of the armed forces when the member has been called
to active full-time duty and has received no compensation during the period of that duty from any
person other than the armed forces.
(2) 'Base salary' means compensation paid to a member without regard to any overtime pay.
(3) 'Board' means the consolidated public retirement board created pursuant to article ten-d,
chapter five of this code.
(4) 'Division' means the division of public safety.
(5) 'Final average salary' means the average of the highest annual compensation received for
employment with the division, including compensation paid for overtime service, received by the
member during any five years within the member's last ten years of service.
(6) 'Fund' means the West Virginia state police retirement fund created pursuant to section
four of this article.
(7) 'Member' or 'employee' means a person regularly employed in the service of the division
of public safety after the effective date of this article.
(8) 'Salary' means the compensation of a member, excluding any overtime payments.
(9) 'Internal Revenue Code' means the Internal Revenue Code of 1986, as it has been
amended.
(10) 'Plan year' means the twelve-month period commencing on the first day of July of any
designated year and ending the following thirtieth day of June.
(11) 'Required beginning date' means the first day of April of the calendar year following
the later of: (a) The calendar year in which the member attains age seventy and one-half; or (b) the
calendar year in which he or she retires or otherwise separates from service with the department.
(12) 'Retirement system' or 'system' means the West Virginia state police retirement system
created and established by this article.
(13) 'Month of service' means each month for which a member is paid or entitled to payment
for at least one hour of service for which contributions were remitted to the fund. These months
shall be credited to the member for the calendar year in which the duties are performed.
__(14) 'Years of service' means the months of service acquired by a member while in active
employment with the department divided by twelve. 'Years of service' shall be calculated in years
and fraction of a year from the date of active employment of the member with the department
through the date of termination of employment or retirement from the department. If a member
returns to active employment with the department following a previous termination of employment
with the department, and such member has not received a refund of contributions plus interest for
such previous employment under section eight of this article, service shall be calculated separately
for each period of continuous employment and 'years of service' shall be the total service for all such
periods of employment. 'Years of service' shall exclude any periods of employment with the
department for which a refund of contributions plus interest has been paid to the member, unless the
member repays such previous withdrawal as provided for in section eight of this article to reinstate
such years
of service.
§15-2A-6. Retirement; commencement of benefits.
A member may retire with full benefits upon attaining the age of fifty-five fifty-two and
completing twenty or more years of service, by lodging with the consolidated public retirement board his or her voluntary petition in writing for retirement. A member who is less than age fifty-five fifty-
two may retire upon completing twenty years or more of service: Provided, That he or she will
receive a reduced benefit that is of equal actuarial value to the benefit the member would have
received if the member deferred commencement of his or her accrued retirement benefit to the age
of fifty-five fifty-two.
When the retirement board retires a member with full benefits under the provisions of this
section, the board, by order in writing, shall make a determination that the member is entitled to
receive on annuity equal to two and three-fourths percent of his or her final average salary multiplied
by the number of years, and fraction of a year, of his or her service in the division department at the
time of retirement. The member's annuity shall begin the first day of the calendar month following
the month in which his or her application for the same is filed or lodged with the board on or after
his or her attaining age or service requirements, and termination of employment.
In no event may the provisions of section thirteen, article sixteen, chapter five be applied in
determining eligibility to retire with either a deferred or immediate commencement of benefit."
The bill was then ordered to third reading.
Com. Sub. for S. B. 556, Exempting retailers of automobiles and trucks from definition of
credit services organizations; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page three, section two, line forty, following the word "trucks",
by changing the semicolon to a colon and inserting the words "Provided, That the person is not
extending credit for a buyer, excluding assignments" and a semicolon.
The bill was then ordered to third reading.
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to third reading:
S. B. 645, Appointing interim judges to court of claims,
Com. Sub. for S. B. 672, Relating to municipalities' right to collect public utility fees,
S. B. 720, Relating to unused state private activity bond volume cap,
And,
S. B. 726, Continuing steel advisory commission and steel futures program.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
Com. Sub. for S. B. 204, Relating to strategic research and development tax credit,
Com. Sub. for S. B. 230, Relating to definitions of casualty insurance and federal flood
insurance; other provisions,
Com. Sub. for S. B. 320, Relating to division of motor vehicles application for certificate
of title; exempting modular homes,
S. B. 418, Allowing certain sheriff employees to carry deadly weapons,
S. B. 444, Requiring county litter control officers to enforce litter laws,
Com. Sub. for S. B. 505, Creating motor vehicle classification of "low-speed vehicle",
And,
S. B. 717, Terminating agencies following full performance evaluations.
Special Calendar
Unfinished Business
S. C. R. 34, Designating Cass Scenic Railroad State Park's Shay No. 5 steam locomotive as
official state steam locomotive and 2005 "Year of the Shay No. 5"; coming up in regular order, as
unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
H. C. R. 56, Requesting a study on the current problems associated with the delivery of water
and sewer services; coming up in regular order, as unfinished business, was, at the request of
Delegate Staton, and by unanimous consent, laid over one day.
The following resolutions, coming up in regular order, as unfinished business, were each
reported by the Clerk and adopted:
H. C. R. 65, Urging the United States Corps of Engineers and the West Virginia
Conservation Agency to address the issue of flooding in Wyoming County by dredging all flood
prone waterways,
H. C. R. 72, Conducting a study to determine the ability and feasibility of the sheriff's
department to supervise home incarceration of convicted offenders,
And,
H. C. R. 77, Directing the Joint Committee on Government and Finance to make a study on
the instructional term of the school year.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. R. 13, Commending and congratulating Ron Batson of Marion County, West Virginia's
Outstanding Tree Farmer for 2004; coming up in regular order, as unfinished business, was reported
by the Clerk and adopted.
H. R. 18, Proclaiming February as National Children's Dental Health Month; coming up in
regular order, as unfinished business, was reported by the Clerk and adopted.
Third Reading
Com. Sub. for S. B. 208, Allowing state police to engage in certain political activities while
off duty and out of uniform; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 498),
and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting
being as follows:
Nays: Faircloth and Hartman.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 208) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 431, Establishing Interstate Insurance Product Regulation Compact; on
third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 499),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being
as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 431) passed.
An amendment to the title of the bill, recommended by the Committee on Banking and
Insurance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 431 - " A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new article, designated §33-47-1, §33-47-2, §33-47-3, §33-47-4, §33-47-5, §33-
47-6, §33-47-7, §33-47-8, §33-47-9, §33-47-10, §33-47-11, §33-47-12, §33-47-13, §33-47-14, §33-
47-15, §33-47-16 and §33-47-17, all relating to the establishment and operation of an interstate
compact for the review and approval of certain lines of insurance products; setting forth the purposes
for establishing the compact; protecting the interests of consumers and promoting uniform standards
for insurance products; setting forth definitions; establishing the interstate insurance product
regulation commission which has the power to develop uniform standards for product lines, to
receive and approve those product filings and to be an instrumentality of the compacting states;
setting forth the powers of the interstate insurance product regulation commission to promulgate
rules, establish reasonable uniform standards for product filings, review products filed with the
commission, review advertisement relating to long-term care insurance, exercise its rule-making
authority, bring legal actions, issue subpoenas, undertake activities relating to the administration of the commission and appoint committees; setting forth provisions relating to organization of the
commission; memberships and voting rights of states and participation in the governance of the
commission; creation and content of bylaws of the commission; setting forth provisions relating to
meetings and acts of the commission; establishing rule-making authority of the commission;
exempting rules promulgated by the commission from the provisions of chapter twenty-nine-a of this
code; allowing states to opt out of rules promulgated by the commission; setting forth provisions
relating to the maintenance and disclosure of commission records; commission's power to monitor
states' compliance with the compact, but preserving to states the ability to regulate the market
conduct of insurers; setting forth provisions relating to resolution of disputes between compacting
states and noncompacting states; setting forth requirements for filing products with the commission;
setting forth appeal rights of insurers following disapproval of filings; setting forth provisions
relating to the mechanism for funding the operations of the commission, including the collection of
filing fees; setting forth the circumstances under which the compact will become effective and
requiring twenty-six states or states representing forty percent of premium volume for the effected
insurance lines to adopt the compact before the commission may adopt uniform standards and
approve filings; setting forth the procedures for states to withdraw from the compact and
circumstances under which a state will be determined to be in default of the compact; provisions
relating to severability; requiring the insurance commissioner to file in the state register rules or
uniform standards adopted by the commission and which have become effective in this state, and
provisions relating to the binding effect of the compact."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
S. B. 631, Relating to state fertilizer law; on third reading, coming up in regular order, was
read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 500),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 631) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for S. B. 694, Establishing Fairness in Competitive Bidding Act; on third reading,
coming up in regular order, was, at the request of Delegate Staton, and by unanimous consent, laid
over one day.
S. B. 697, Delegating motor carrier inspector duties to weight enforcement officers; on third
reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 501),
and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being
as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (S. B. 697) passed.
On motion of Delegates Warner and Amores, the title of the bill was amended to read as
follows:
S. B. 697 - "A Bill to amend and reenact §24A-7-7 of the code of West Virginia, 1931, as
amended, relating to authorizing the public service commission to delegate motor carrier inspector
duties to weight enforcement officers and to delegate weight enforcement duties to motor carrier
inspectors; and to remove the mandate that motor carrier inspectors perform a safety inspection of
every commercial vehicle stopped for enforcement purposes."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4752, Supplemental appropriation to the department of tax and revenue - division of
banking; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 502), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4752) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 503), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4752) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4753, Supplemental appropriation to the department of environmental protection -
division of environmental protection - stream restoration fund; on third reading, coming up in regular
order, was, at the request of Delegate Staton, and by unanimous consent, laid over one day.
H. B. 4754, Supplemental appropriation to the department of transportation - division of
motor vehicles; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 504), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4754) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 505), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4754) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4755, Supplemental appropriation to a new item of appropriation designated the coal
heritage highway authority; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 506), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4755) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 507), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4755) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4756, Supplemental appropriation to the West Virginia state board of examiners for
licensed practical nurses; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 508), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4756) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 509), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4756) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
H. B. 4757, Supplemental appropriation to the department of military affairs and public
safety - division of criminal justice services
; on third reading, coming up in regular order, was read
a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 510), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Fleischauer.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4757) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 511), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4757) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4758, Supplemental appropriation to the department of military affairs and public
safety - division of criminal justice services - juvenile accountability incentive; on third reading,
coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 512), and there were--yeas
99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4758) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 513), and there were--yeas 99, nays
none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 4758) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Second Reading
Com. Sub. for S. B. 125, Permitting solicitation of certain state employees for contributions
to certain campaigns in local or county elections; on second reading, coming up in regular order, was
read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk
and adopted, amending the bill on page six, section twelve, line ninety-four, following the word
"subdivision", by changing the period to a colon and inserting the words "Provided, That in no event
shall any person acting in a supervisory role solicit a person who is a subordinate employee for any
contribution" and a period.
On motion of Delegate Amores, the bill was further amended on page eight, section twelve,
after line one hundred thirty one, by inserting a new subsection (m), to read as follows:
"(m) The provisions of subsection (i), permitting contributions to a campaign for or against
a county or local government ballot issue, shall become operable on and after the first day of January,
two thousand five."
The bill was then ordered to third reading.
Com. Sub. for S. B. 161, Creating Model Health Plan for Uninsurable Individuals Act; on
second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk on
page two, following the enacting clause, by striking out the remainder of the bill and inserting in lieu
thereof the following:
"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new
article, designated §33-47-1, §33-47-2, §33-47-3, §33-47-4, §33-47-5, §33-47-6, §33-47-7, §33-47-
8, §33-47-9, §33-47-10 and §33-47-11, all to read as follows:
ARTICLE 47. MODEL HEALTH PLAN FOR UNINSURABLE INDIVIDUALS ACT.
§33-47-1. Definitions.
For purposes of this article:
(a) 'Board' means the board of directors of the plan.
(b) 'Church plan' has the meaning given such term under section 3(33) of the federal
Employee Retirement Income Security Act of 1974.
(c) 'Commissioner' means the insurance commissioner of this state.
(d) (1) 'Creditable coverage' means, with respect to an individual, coverage of the individual
provided under any of the following:
(A) A group health plan;
(B) Health insurance coverage;
(C) Part A or Part B of Title XVIII of the Social Security Act;
(D) Title XIX of the Social Security Act, other than coverage consisting solely of benefits
under section 1928;
(E) Chapter 55 of Title 10, U.S.C.;
(F) A medical care program of the federal Indian Health Service or of a tribal organization:
(G) A state health benefits risk pool;
(H) A health plan offered under chapter 89 of Title 5, U.S.C.;
(I) A public health plan as defined in federal regulations; or
(J) A health benefit plan under section 5(e) of the federal Peace Corps Act (22 U.S.C. 2504
(e)).
(2) A period of creditable coverage shall not be counted, with respect to the enrollment of
an individual who seeks coverage under this article, if, after such period and before the enrollment
date, the individual experiences a significant break in coverage.
(e) 'Department' means the insurance commissioner of West Virginia.
(f) 'Dependent' means a resident spouse or resident unmarried child under the age of nineteen
years, a child who is a student under the age of twenty-three years and who is financially dependent
upon the parent, or a child of any age who is disabled and dependent upon the parent.
(g) 'Federally defined eligible individual' means an individual:
(1) For whom, as of the date on which the individual seeks coverage under this article, the
aggregate of the periods of creditable coverage as defined in subsection (d) of this section is eighteen
or more months;
(2) Whose most recent prior creditable coverage was under a group health plan, governmental
plan, church plan or health insurance coverage offered in connection with such a plan;
(3) Who is not eligible for coverage under a group health plan, Part A or Part B of Title XVIII
of the Social Security Act (Medicare), or a state plan under Title XIX of the Act (Medicaid) or any
successor program, and who does not have other health insurance coverage;
(4) With respect to whom the most recent coverage within the period of aggregate creditable coverage was not terminated based on a factor relating to nonpayment of premiums or fraud;
(5) Who, if offered the option of continuation coverage under a COBRA continuation
provision or under a similar state program, elected this coverage; and
(6) Who has exhausted the continuation coverage under this provision or program, if the
individual elected the continuation coverage described in subdivision (5) of this subsection.
(h) 'Governmental plan' has the meaning given such term under section 3(32) of the federal
Employee Retirement Income Security Act of 1974 and any federal government plan.
(i) 'Group health plan' means an employee welfare benefit plan as defined in section 3(1) of
the federal Employee Retirement Income Security Act of 1974 to the extent that the plan provides
medical care as defined in subsection (m) of this section and including items and services paid for
as medical care to employees or their dependents as defined under the terms of the plan directly or
through insurance, reimbursement or otherwise.
(j) (1) 'Health insurance coverage' means any hospital and medical expense incurred policy,
nonprofit health care service plan contract, health maintenance organization subscriber contract, or
any other health care plan or arrangement that pays for or furnishes medical or healthcare services
whether by insurance or otherwise.
(2) 'Health insurance coverage' shall not include one or more, or any combination of, the
following:
(A) Coverage only for accident, or disability income insurance, or any combination thereof;
(B) Coverage issued as a supplement to liability insurance;
(C) Liability insurance, including general liability insurance and automobile liability
insurance;
(D) Workers' compensation or similar insurance;
(E) Automobile medical payment insurance;
(F) Credit-only insurance;
(G) Coverage for on-site medical clinics; and
(H) Other similar insurance coverage, specified in federal regulations issued pursuant to
PUB.L. No. 104-191, under which benefits for medical care are secondary or incidental to other
insurance benefits.
(3) 'Health insurance coverage' shall not include the following benefits if they are provided
under a separate policy, certificate or contract of insurance or are otherwise not an integral part of
the coverage:
(A) Limited scope dental or vision benefits;
(B) Benefits for long-term care, nursing home care, home health care, community-based care,
or any combination thereof; or
(C) Other similar, limited benefits specified in federal regulations issued pursuant to
Pub.L.No. 104-191.
(4) 'Health insurance coverage' shall not include the following benefits if the benefits are
provided under a separate policy, certificate or contract of insurance, there is no coordination
between the provision of the benefits and any exclusion of benefits under any group health plan
maintained by the same plan sponsor, and the benefits are paid with respect to an event without
regard to whether benefits are provided with respect to such an event under any group health plan
maintained by the same plan sponsor:
(A) Coverage only for a specified disease or illness; or
(B) Hospital indemnity or other fixed indemnity insurance.
(5) 'Health insurance coverage' shall not include the following if offered as a separate policy,
certificate or contract of insurance:
(A) Medicare supplemental health insurance as defined under section 1882(g)(1) of the Social
Security Act;
(B) Coverage supplemental to the coverage provided under chapter 55 of Title 10, U.S.C.
(Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)); or
(C) Similar supplemental coverage provided to coverage under a group health plan.
(k) 'Health maintenance organization' means an organization licensed in this state pursuant
to the provisions of article twenty-five-a of this chapter.
(l) 'Insurer' means any entity that provides health insurance coverage in this state. For the
purposes of this article, insurer includes an insurance company, a prepaid limited health service
organization as operating under a certificate of authority pursuant to article twenty-five-d of this
chapter, a fraternal benefit society, a health maintenance organization, and any other entity providing
a plan of health insurance coverage or health benefits subject to state insurance regulation.
(m) 'Medical care' means amounts paid for:
(1) The diagnosis, care, mitigation, treatment, or prevention of disease, or amounts paid for
the purpose of affecting any structure or function of the body;
(2) Transportation primarily for and essential to medical care referred to in subdivision (1)
of this subsection; and
(3) Insurance covering medical referred to in subdivisions (1) and (2) of this subsection.
(n) 'Medicare' means coverage under both Parts A and B of Title XVIII of the Social Security
Act, 42 U.S.C. 1395 et seq., as amended.
(o) 'Participating insurer' means any insurer providing health insurance coverage to residents
of this state.
(p) 'Plan' means the West Virginia health insurance plan as created in section two of this
article.
(q) 'Plan of operation' means the articles, bylaws and operating rules and procedures adopted
by the board pursuant to section two of this article.
(r) 'Resident' means an individual who has been legally domiciled in this state for a period
of at least thirty days, except that for a federally defined eligible individual, there shall not be a
thirty-day requirement. 'Resident' also means an individual who is legally domiciled in this state
on the date of application to the plan and is eligible for the credit for health insurance costs under
section 35 of the Internal Revenue Code of 1986.
(s) 'Significant break in coverage' means a period of sixty-three consecutive days during all
of which the individual does not have any creditable coverage, except that neither a waiting period
nor an affiliation period is taken into account in determining a significant break in coverage.
§33-47-1a. Federal Applicability.
Terms within this article with meaning ascribed by federal law shall have the meaning as in
effect in federal law the thirty first day of December, two thousand three.
§33-47-2. Operation of the plan.
(a) There is hereby created within the West Virginia department of tax and revenue a body
corporate and politic to be known as the West Virginia health insurance plan which shall be deemed
to be an instrumentality of the state and a public corporation. The West Virginia health insurance
plan shall have perpetual existence and any change in the name or composition of the plan shall in
no way impair the obligations of any contracts existing under this chapter.
(b) The plan shall operate subject to the supervision and control of the board. The board shall
consist of the commissioner or his or her designated representative, who shall serve as an ex officio
member of the board and shall be its chairperson, and six members appointed by the governor. At
least two board members shall be individuals, or the parent, spouse or child of individuals,
reasonably expected to qualify for coverage by the plan. At least two board members shall be
representatives of insurers. A majority of the board shall be composed of individuals who are not
representatives of insurers or health care providers.
(c) The initial board members shall be appointed as follows: One third of the members to
serve a term of two years; one third of the members to serve a term of four years; and one third of
the members to serve a term of six years. Subsequent board members shall serve for a term of three
years. A board member's term shall continue until his or her successor is appointed.
(d) Vacancies in the board shall be filled by the governor. Board members may be removed
by the governor for cause.
(e) Board members shall not be compensated in their capacity as board members but shall be reimbursed for reasonable expenses incurred in the necessary performance of their duties.
(f) The board shall submit to the commissioner a plan of operation for the plan and any
amendments thereto necessary or suitable to assure the fair, reasonable and equitable administration
of the plan. The plan of operation shall become effective upon approval in writing by the
commissioner consistent with the date on which the coverage under this article must be made
available. If the board fails to submit a suitable plan of operation within one hundred eighty days
after the appointment of the board of directors, or at any time thereafter fails to submit suitable
amendments to the plan of operation, the commissioner shall adopt and promulgate such rules as are
necessary or advisable to effectuate the provisions of this section. Such rules shall continue in force
until modified by the commissioner or superseded by a plan of operation submitted by the board and
approved by the commissioner.
(g) The plan of operation shall:
(1) Establish procedures for operation of the plan: Provided, That the plan shall be operated
so as to qualify as an acceptable alternative mechanism under the federal Health Insurance Portability
and Accountability Act, and as an option to provide health insurance coverage for individuals
eligible for the federal health care tax credit established by the federal Trade Adjustment Assistance
Reform Act of 2002 (Section 35 of the Internal Revenue Code of 1986);
(2) Establish procedures for selecting an administrator in accordance with section six of this
article;
(3) Establish procedures to create a fund, under management of the board, for administrative
expenses;
(4) Establish procedures for the handling, accounting and auditing of assets, moneys and
claims of the plan and the plan administrator;
(5) Develop and implement a program to publicize the existence of the plan, the eligibility
requirements, and procedures for enrollment; and to maintain public awareness of the plan;
(6) Establish procedures under which applicants and participants may have grievances reviewed by a grievance committee appointed by the board. The grievances shall be reported to the
board after completion of the review. The board shall retain all written complaints regarding the
plan for at least three years; and
(7) Provide for other matters as may be necessary and proper for the execution of the board's
powers, duties and obligations under this article.
(h) The plan shall have the general powers and authority granted under the laws of this state
to health insurers and in addition thereto, the specific authority to:
(1) Enter into contracts as are necessary or proper to carry out the provisions and purposes
of this article, including the authority, with the approval of the commissioner, to enter into contracts
with similar plans of other states for the joint performance of common administrative functions, or
with persons or other organizations for the performance of administrative functions;
(2) Sue or be sued, including taking any legal actions necessary or proper to recover or collect
assessments due the plan;
(3) Take such legal action as necessary:
(A) To avoid the payment of improper claims against the plan or the coverage provided by
or through the plan;
(B) To recover any amounts erroneously or improperly paid by the plan;
(C) To recover any amounts paid by the plan as a result of mistake of fact or law; or
(D) To recover other amounts due the plan;
(4) Establish, and modify from time to time as appropriate, rates, rate schedules, rate
adjustments, expense allowances, agents' referral fees, claim reserve formulas and any other
actuarial function appropriate to the operation of the plan. Rates and rate schedules may be adjusted
for appropriate factors such as age, sex and geographic variation in claim cost and shall take into
consideration appropriate factors in accordance with established actuarial and underwriting practices;
(5) Issue policies of insurance in accordance with the requirements of this article;
(6) Appoint appropriate legal, actuarial and other committees as necessary to provide technical assistance in the operation of the plan, policy and other contract design, and any other
function within the authority of the pool;
(7) Borrow money to effect the purposes of the plan. Any notes or other evidence of
indebtedness of the plan not in default shall be legal investments for insurers and may be carried as
admitted assets;
(8) Establish rules, conditions and procedures for reinsuring risks of participating insurers
desiring to issue plan coverages in their own name. Provision of reinsurance shall not subject the
plan to any of the capital or surplus requirements, if any, otherwise applicable to reinsurers;
(9) Employ and fix the compensation of employees;
(10) Prepare and distribute certificate of eligibility forms and enrollment instruction forms
to insurance procedures and to the general public;
(11) Provide for reinsurance of risks incurred by the plan;
(12) Issue additional types of health insurance policies to provide optional coverages,
including medicare supplemental insurance;
(13) Provide for and employ cost containment measures and requirements including, but not
limited to, preadmission screening, second surgical opinion, concurrent utilization review, and
individual case management for the purpose of making the benefit plan more cost effective;
(14) Design, utilize, contract or otherwise arrange for the delivery of cost effective health care
services, including establishing or contracting with preferred provider organizations, health
maintenance organizations and other limited network provider arrangements; and
(15) Adopt bylaws, policies and procedures as may be necessary or convenient for the
implementation of this article and the operation of the plan.
(i) The board shall make an annual report to the governor which shall also be filed with the
Legislature. The report shall summarize the activities of the plan in the preceding calendar year,
including the net written and earned premiums, plan enrollment, the expense of administration, and
the paid and incurred losses.
(j) Neither the board nor its employees shall be liable for any obligations of the plan. No
member or employee of the board shall be liable, and no cause of action of any nature may arise
against them, for any act or omission related to the performance of their powers and duties under this
article, unless such act or omission constitutes willful or wanton misconduct. The board may
provide in its bylaws or rules for indemnification of, and legal representation for, its members and
employees.
§33-47-3. Establishment of rules.
The board may promulgate rules, in accordance with article three, chapter twenty-nine-a of
this code, as may be necessary to implement the provisions of this article.
§33-47-4. Eligibility.
(a) (1) Any individual person, who is and continues to be a resident shall be eligible for plan
coverage if evidence is provided:
(A) Of a notice of rejection or refusal to issue substantially similar insurance for health
reasons by one insurer; or
(B) Of a refusal by an insurer to issue insurance except at a rate exceeding the plan rate.
(C) That the individual is legally domiciled in this state and is eligible for the credit for health
insurance costs under section 35 of the Internal Revenue Code of 1986.
(2) Any federally defined eligible individual who has not experienced a significant break in
coverage and who is and continues to be a resident shall be eligible for plan coverage.
(3) A rejection or refusal by an insurer offering only stop loss, excess of loss or reinsurance
coverage with respect to an applicant under subdivision (1) of this subsection shall not be sufficient
evidence under this subsection.
(b) The board shall promulgate a list of medical or health conditions for which a person shall
be eligible for plan coverage without applying for health insurance coverage pursuant to subdivision
(1), subsection (a) of this section. Persons who can demonstrate the existence or history of any
medical or health conditions on the list promulgated by the board shall not be required to prove the evidence specified in subdivision (1), subsection (a) of this section. The list shall be effective on the
first day of the operation of the plan and may be amended from time to time as may be appropriate.
(c) Each resident dependent of a person who is eligible for plan coverage shall also be
eligible for plan coverage.
(d) A person shall not be eligible for coverage under the plan if:
(1) The person has or obtains health insurance coverage substantially similar to or more
comprehensive than a plan policy, or would be eligible to have coverage if the person elected to
obtain it; except that:
(A) A person may maintain other coverage for the period of time the person is satisfying any
preexisting condition waiting period under a plan policy; and
(B) A person may maintain plan coverage for the period of time the person is satisfying a
preexisting condition waiting period under another health insurance policy intended to replace the
plan policy;
(2) The person is determined to be eligible for health care benefits under the state medicaid
law;
(3) The person has previously terminated plan coverage unless twelve months have lapsed
since such terminations, except that this subdivision shall not apply with respect to an applicant who
is a federally defined eligible individual;
(4) The plan has paid out one million dollars in benefits on behalf of the person;
(5) The person is an inmate or resident of a public institution, except that this subdivision
shall not apply with respect to an applicant who is a federally defined eligible individual; or
(6) The person's premiums are paid for or reimbursed under any government sponsored
program or by any government agency or health care provider, except as an otherwise qualifying full-
time employee, or dependent thereof, of a government agency or health care provider.
(e) Coverage shall cease:
(1) On the date a person is no longer a resident of this state;
(2) On the date a person requests coverage to end;
(3) Upon the death of the covered person;
(4) On the date state law requires cancellation of the policy; or
(5) At the option of the plan, thirty days after the plan makes any inquiry concerning the
person's eligibility or place of residence to which the person does not reply.
(f) Except under the circumstance described in subsection (d) of this section, a person who
ceases to meet the eligibility requirements of this section may be terminated at the end of the policy
period for which the necessary premiums have been paid.
§33-47-5. Unfair referral to plan.
It shall constitute an unfair trade practice for the purposes of article eleven of this chapter for
an insurer, insurance agent or insurance broker to refer an individual employee to the plan, or arrange
for an individual employee to apply to the plan, for the purpose of separating that employee from
group health insurance coverage provided in connection with the employee's employment.
§33-47-6. Plan administrator.
(a) The board shall select a plan administrator through a competitive bidding process to
administer the plan. The board shall evaluate bids submitted based on criteria established by the
board which shall include:
(1) The plan administrator's proven ability to handle health insurance coverage to
individuals;
(2) The efficiency and timeliness of the plan administrator's claim processing procedures;
(3) An estimate of total charges for administering the plan;
(4) The plan administrator's ability to apply effective cost containment programs and
procedures and to administer the plan in a cost efficient manner; and
(5) The financial condition and stability of the plan administrator.
(b) (1) The plan administrator shall serve for a period specified in the contract between the
plan and the plan administrator subject to removal for cause and subject to any terms, conditions and limitations of the contract between the plan and the plan administrator.
(2) At least one year prior to the expiration of each period of service by a plan administrator,
the board shall invite eligible entities, including the current plan administrator to submit bids to serve
as the plan administrator. Selection of the plan administrator for the succeeding period shall be made
at least six months prior to the end of the current period.
(c) The plan administrator shall perform such functions relating to the plan as may be
assigned to it, including:
(1) Determination of eligibility;
(2) Payment of claims;
(3) Establishment of a premium billing procedure for collection of premium from persons
covered under the plan; and
(4) Other necessary functions to assure timely payment of benefits to covered persons under
the plan.
(d) The plan administrator shall submit regular reports to the board regarding the operation
of the plan. The frequency, content and form of the report shall be specified in the contract between
the board and the plan administrator.
(e) Following the close of each calendar year, the plan administrator shall determine net
written and earned premiums, the expense of administration, and the paid and incurred losses for the
year and report this information to the board and the commission on a form prescribed by the
commissioner.
(f) Notwithstanding any other provision in this section to the contrary, the board may elect
to designate the public employees insurance agency as the plan administrator. If so designated, the
public employees insurance agency shall provide the services set forth in subsection (c) of this
section, and shall be subject to the reporting requirements of subsections (d) and (e) of this section.
The plan shall, if the public employees insurance agency is designated by the board as the plan
administrator, reimburse health care providers at the same health care reimbursement rates then in effect for the West Virginia public employees insurance agency.
§33-47-7. Funding of the plan.
(a) Premiums.
(1) The plan shall establish premium rates for plan coverage as provided in subdivision (2)
of this subsection. Separate schedules of premium rates based on age, sex and geographical location
may apply for individual risks. Premium rates and schedules shall be submitted to the commissioner
for approval prior to use.
(2) The plan, with the assistance of the commissioner, shall determine a standard risk rate
by considering the premium rates charged by other insurers offering health insurance coverage to
individuals. The standard risk rate shall be established using reasonable actuarial techniques, and
shall reflect anticipated experience and expenses for such coverage. Initial rates for plan coverage
shall not be less than one hundred twenty-five percent of rates established as applicable for
individual standard risks. Subject to the limits provided in this subdivision, subsequent rates shall
be established to provide fully for the expected costs of claims including recovery of prior losses,
expenses of operation, investment income of claim reserves, and any other cost factors subject to the
limitations described herein. In no event shall plan rates exceed one hundred fifty percent of rates
applicable to individual standard risks.
(b) Sources of additional revenue.
(1) The plan may be additionally funded by an assessment on hospitals. Notwithstanding the
provisions of subsection (c), section eight, article twenty-nine-b, chapter sixteen of this code and not
to be construed as in conflict therewith, the health care authority is authorized to increase the
assessment obligation of hospitals. The increase shall not exceed a maximum of thirty-five percent
above the one tenth of one percent specified in this code section. The entire assessment, including
the increase, shall be collected as specified in subsection (c), section eight, article twenty-nine-b,
chapter sixteen of this code. Upon receipt of the assessment fees, the health care authority shall
transfer twenty-five percent of the fees collected to a special revenue account established in the state treasury by the commissioner and designated the 'West Virginia Health Insurance Plan Account,'
for the sole purpose of providing additional funding for the plan.
§33-47-8. Benefits.
(a) The plan shall offer health care coverage consistent with comprehensive coverage to every
eligible person who is not eligible for medicare. The coverage to be issued by the plan, its schedule
of benefits, exclusions and other limitations shall be established by the board and subject to the
approval of the commissioner.
(b) In establishing the plan coverage, the board shall take into consideration the levels of
health insurance coverage provided in the state and medical economic factors as may be deemed
appropriate; and promulgate benefit levels, deductibles, coinsurance factors, exclusions and
limitations determined to be generally reflective of and commensurate with health insurance
coverage provided through a representative number of large employers in the state.
(c) The board may adjust any deductibles and coinsurance factors annually according to the
medical component of the consumer price index.
(d) Preexisting conditions.
(1) Plan coverage shall exclude charges or expenses incurred during the first six months
following the effective date of coverage as to any condition for which medical advice, care or
treatment was recommended or received as to such conditions during the six-month period
immediately preceding the effective date of coverage, except that no preexisting condition exclusion
shall be applied to a federally defined eligible individual.
(2) Subject to subdivision (1) of this subsection, the preexisting condition exclusions shall
be waived to the extent that similar exclusions, if any, have been satisfied under any prior health
insurance coverage which was involuntarily terminated; provided, that:
(A) Application for pool coverage is made not later than sixty-three days following such
involuntary termination and, in such case, coverage in the plan shall be effective from the date on
which such prior coverage was terminated; and
(B) The applicant is not eligible for continuation or conversion rights that would provide
coverage substantially similar to plan coverage.
(e) Nonduplication of benefits.
(1) The plan shall be payer of last resort of benefits whenever any other benefit or source of
third-party payment is available. Benefits otherwise payable under plan coverage shall be reduced
by all amounts paid or payable through any other health insurance coverage and by all hospital and
medical expense benefits paid or payable under any workers' compensation coverage, automobile
medical payment or liability insurance whether provided on the basis of fault or nonfault, and by any
hospital or medical benefits paid or payable under or provided pursuant to any state or federal law
or program.
(2) The plan shall have a cause of action against an eligible person for the recovery of the
amount of benefits paid that are not for covered expenses. Benefits due from the plan may be
reduced or refused as a set-off against any amount recoverable under this subdivision.
§33-47-9. Collective action.
Neither the participation in the plan as participating insurers, the establishment of rates, forms
or procedures nor any other joint or collective action required by this article shall be the basis of any
legal action, criminal or civil liability or penalty against the plan or any participating insurer.
§33-47-10. Taxation.
The plan established pursuant to this article shall be exempt from the premium taxes assessed
under sections fourteen and fourteen-a, article three, chapter thirty-three.
§33-47-11. Effective date.
The provisions of this article shall become effective on the first day of July, two thousand
four."
On motion of Delegate Michael, the Committee amendment was amended on page nine,
section two, line one, following the word "insurers" and the period, by inserting the following: "At
least one board member shall be a hospital administrator" and a period.
On page fourteen, section two, line six, by inserting the following subsection: "(j) Study and
recommend to the legislature in January of two thousand six, alternative funding mechanisms for the
continuation of the health plan for uninsurable individuals" followed by a semicolon, and then
relettering the remaining subsection.
On page twenty-one, section seven, line fourteen, following the word "of", by deleting the
word "thirty-five" and inserting in lieu thereof the word "twenty-five".
On page twenty-one, section seven, line twenty, following the word "transfer", by deleting
the words "twenty-five percent of the fees" and inserting in lieu thereof the words "all proceeds
generated from the new fee".
On page twenty-four, after section ten, line fourteen, by inserting the following:
"§33-47-11. Continuation of model health plan for uninsurables individuals.
The model health plan for uninsurable individuals shall continue to exist, pursuant to the
provisions of article ten, chapter four of this code, until the first day of July, two thousand seven,
unless sooner terminated, continued or reestablished pursuant to the provisions of that article."
And,
By changing section eleven to section twelve.
The question now before the House being on the adoption of the Committee amendment, as
amended, the same was put and prevailed.
The bill was then ordered to third reading.
Com. Sub. for S. B. 165, Simplifying state higher education tuition and fee system; on
second reading, coming up in regular order, was, at the request of Delegate Staton, and by unanimous
consent, moved to the foot of bills on first reading.
Com. Sub. for S. B. 176, Relating to investments and investment practices of insurance
companies; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Banking and Insurance, was reported
by the Clerk and adopted, amending the bill on page two, following the enacting section, by inserting the following:
"ARTICLE 2. INSURANCE COMMISSIONER
§33-2-2. Compensation and expenses of commissioner and employees; location of office.
Notwithstanding any other provisions in the code to the contrary, the The commissioner shall
receive an annual salary of forty-seven thousand eight hundred seventy-five thousand dollars and
actual expenses incurred in the performance of official business, which compensation shall be in full
for all services. The office of the commissioner shall be maintained in the capitol or other suitable
place in Charleston. The commissioner may employ such persons and incur such expenses as may
be necessary in the discharge of his or her duties and shall fix the compensation of such employees,
but such compensation shall not exceed the appropriation therefor. The commissioner may
reimburse employees for reasonable expenses incurred for job-related training and educational
seminars and courses. All compensation for salaries and expenses of the commissioner and his or
her employees shall be paid monthly out of the state treasury by requisition upon the auditor,
properly certified by the commissioner."
On page seventy, section thirteen, line fourteen, following the word "corporation", by striking
out the words "may not be subject to this section but are" and inserting in lieu thereof the words "is
not subject to this section but is".
On page one hundred nineteen, section twenty-six, line ten, following the word
"policyholder", by striking out the period and inserting a colon and the words "Provided however,
The aggregate investments of a health maintenance organization may not exceed the greater of thirty
percent of its admitted assets or one hundred percent of its total capital and surplus."
On page one hundred forty-eight, section ten, line three, by striking out the words "fifty
percent" and inserting in lieu thereof the words "The first two million dollars".
And,
By amending the enacting section to read as follows:
"That §33-2-2 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §33-3-6 of said code be amended and reenacted; that §33-8-1, §33-8-2, §33-8-3, §33-8-4,
§33-8-5, §33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12, §33-8-13, §33-8-14,
§33-8-15, §33-8-16, §33-8-17, §33-8-18, §33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23,
§33-8-24 and §33-8-25 of said code be amended and reenacted; that said code be amended by adding
thereto seven new sections, designated §33-8-26, §33-8-27, §33-8-28, §33-8-29, §33-8-30, §33-8-31
and §33-8-32; that §33-9-3 of said code be amended and reenacted; that §33-22-11 of said code be
amended and reenacted; that §33-23-31 of said code be amended and reenacted; that §33-24-10 of
said code be amended and reenacted; that §33-25A-4 of said code be amended and reenacted; that
§33-25D-5 of said code be amended and reenacted; and that §33-27-2a of said code be amended and
reenacted, all to read as follows" and a colon.
The bill was then ordered to third reading.
S. B. 200, Requiring state police to annually report to Legislature effectiveness of recruiting
minorities; on second reading, coming up in regular order, was read a second time and ordered to
third reading.
S. B. 286, Relating to assessment of regulated consumer lenders; on second reading, coming
up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk on
page one, line seventeen, after the article heading, by inserting the following:
"§31A-2-2. Commissioner's appointment, term, qualifications, salary, oath and bond.
The commissioner of banking shall be appointed by the governor, by and with the advice and
consent of the Senate. He shall serve at the will and pleasure of the governor for the term for which
the governor was elected and until his successor is appointed and qualified, unless earlier removed
from office for cause as provided by law. Notwithstanding any other provisions in the code to the
contrary, the commissioner shall receive an annual salary of seventy-five thousand dollars and actual
expenses incurred in the performance of official business, which compensation shall be in full for
all services.
Any person appointed as commissioner shall have a college degree from an accredited
institution, be of good moral character, have knowledge of the theory and practice of banking and
be at least twenty-five years of age.
Before entering upon the discharge of his duties as commissioner, he shall take and subscribe
to the oath of office prescribed in section five, article four of the constitution of West Virginia and
shall enter into a bond in the penal sum of one hundred thousand dollars, with a corporate surety
authorized to engage in business in this state, conditioned upon the faithful discharge and
performance of the duties of his office. The premium of such bond shall be payable from the state
treasury out of funds allocated to the department of banking. The executed oath and bond shall be
filed in the office of the secretary of state."
And,
By amending the enacting section to read as follows:
"That §31A-2-2 and §31A-2-8 of the code of West Virginia, 1931, as amended, be amended
and reenacted to read as follows" and a colon.
On motion of Delegate Trump, the Committee amendment was amended on page one, section
two, line eleven, following the word "He", by inserting the words "or she" .
On page one, section two, line thirteen, following the word "his", by inserting the words "or
her".
On page two, section two, line one, following the word "his", by inserting the words "or her".
On page two, section two, line two, following the word "he", by inserting the words "or she".
On page two, section two, line seven, following the word "his", by inserting the words "or
her".
And,
On page two, section two, following line ten, by inserting the following:
"§31A-2-4. Jurisdiction of commissioner; powers, etc., of division transferred to
commissioner; powers and duties of commissioner.
(a) Subject to the powers vested in the board by article three of this chapter, the
commissioner has supervision and jurisdiction over state banks, regulated consumer lenders,
residential mortgage lenders and brokers licensed pursuant to article seventeen, chapter thirty-one
of this code, credit unions and all other persons now or hereafter made subject to his or her
supervision or jurisdiction. All powers, duties, rights and privileges vested in the division are hereby
vested in the commissioner. He or she shall be the chief executive officer of the division of banking
and is responsible for the division's organization, services and personnel and for the orderly and
efficient administration, enforcement and execution of the provisions of this chapter and all laws
vesting authority or powers in or prescribing duties or functions for the division or the commissioner.
(b) The commissioner shall:
(1) Maintain an office for the division and there keep a complete record of all the division's
transactions, of the financial conditions of all financial institutions and records of the activities of
other persons as the commissioner considers important. Notwithstanding any other provision of this
code, heretofore or hereafter enacted, the records relating to the financial condition of any financial
institution and any information contained in the records shall be confidential for the use of the
commissioner and authorized personnel of the division of banking. No person shall divulge any
information contained in any records except as authorized in this subdivision in response to a valid
subpoena or subpoena duces tecum issued pursuant to law in a criminal proceeding or in a civil
enforcement action brought by the state or federal regulatory authorities. Subpoenas shall first be
directed to the commissioner, who shall authorize disclosure of relevant records and information
from the records for good cause, upon imposing terms and conditions considered necessary to protect
the confidential nature of the records, the financial integrity of the financial institution or the person
to which the records relate, and the legitimate privacy interests of any individual named in the
records. Conformity with federal procedures shall be sought where the institution maintains federal
deposit insurance. The commissioner has and may exercise reasonable discretion as to the time,
manner and extent the other records in his or her office and the information contained in the records are available for public examination;
(2) Require all financial institutions to comply with all the provisions of this chapter and
other applicable laws, or any rule promulgated or order issued thereunder;
(3) Investigate all alleged violations of this chapter and all other laws which he or she is
required to enforce and of any rule promulgated or order issued thereunder; and
(4) Require a criminal background investigation, including fingerprint checks, of each: (A)
Applicant seeking approval to charter and/or control a state bank, state credit union, or a foreign
bank state agency or representative office; (B) applicant seeking a license to engage in the business
of money transmission, currency exchange, or other activity regulated under article two, chapter
thirty-two-a of this code; (C) applicant subject to the commissioner's supervision seeking a license
to engage in the business of regulated consumer lending, mortgage lending or brokering; and (D)
division of banking financial institutions regulatory employee applicant, to be made through the
West Virginia state police and the federal bureau of investigation: Provided, That where the
applicant is a company or entity already subject to supervision and regulation by the federal reserve
board or other federal bank, thrift or credit union regulator, or is a direct or indirect subsidiary of a
company or entity subject to the supervision and regulation, or where the applicant is a company
subject to the supervision and regulation of the federal securities and exchange commission whose
stock is publicly traded on a registered exchange or through the national association of securities
dealers automated quotation system, or the applicant is a direct or indirect subsidiary of such a
company, the investigation into criminal background is not required. The provisions of this
subdivision are not applicable to applicants seeking interim bank charters organized solely for the
purpose of facilitating the acquisition of another bank pursuant to section five, article four of this
chapter: Provided, however, That where a nonexempt applicant under this subdivision is not a
natural person, the principals of the applicant are subject to the requirements of this subdivision. As
used in this subdivision, the term 'principals' means the chief executive officer, regardless of title,
managing partner if a partnership, members of the organizing group if no chief executive officer has yet been appointed, trustee or other person controlling the conduct of the affairs of a licensee. A
person controlling ten percent or more of the stock of any corporate applicant shall be considered
to be a principal under this provision.
(c) In addition to all other authority and powers vested in the commissioner by provisions of
this chapter and other applicable laws, the commissioner may:
(1) Provide for the organization of the division and the procedures and practices of the
division and implement the procedures and practices by the promulgation of rules and forms as
appropriate and the rules shall be promulgated in accordance with article three, chapter twenty-nine-a
of this code;
(2) Employ, direct, discipline, discharge and establish qualifications and duties for all
personnel for the division, including, but not limited to, examiners, assistant examiners, conservators
and receivers, establish the amount and condition of bonds for the personnel he or she considers
appropriate and pay the premiums on the bonds and, if he or she elects, have all personnel subject
to and under the classified service of the state personnel division;
(3) Cooperate with organizations, agencies, committees and other representatives of financial
institutions of the state in connection with schools, seminars, conferences and other meetings to
improve the responsibilities, services and stability of the financial institutions;
(4) In addition to the examinations required by section six of this article, inspect, examine
and audit the books, records, accounts and papers of all financial institutions at such times as
circumstances in his or her opinion may warrant;
(5) Call for and require any data, reports and information from financial institutions under
his or her jurisdiction, at such times and in such form, content and detail considered necessary by
him or her in the faithful discharge of his or her duties and responsibilities in the supervision of the
financial institutions;
(6) Subject to the powers vested in the board by article three of this chapter, supervise the
location, organization, practices and procedures of financial institutions and, without limitation on the general powers of supervision of financial institutions, require financial institutions to:
(A) Maintain their accounts consistent with rules prescribed by the commissioner and in
accordance with generally accepted accounting practices;
(B) Observe methods and standards which he or she may prescribe for determining the value
of various types of assets;
(C) Charge off the whole or any part of an asset which at the time of his or her action could
not lawfully be acquired;
(D) Write down an asset to its market value;
(E) Record or file writings creating or evidencing liens or other interests in property;
(F) Obtain financial statements from prospective and existing borrowers;
(G) Obtain insurance against damage and loss to real estate and personal property taken as
security;
(H) Maintain adequate insurance against other risks as he or she may determine to be
necessary and appropriate for the protection of depositors and the public;
(I) Maintain an adequate fidelity bond or bonds on its officers and employees;
(J) Take other action that in his or her judgment is required of the institution in order to
maintain its stability, integrity and security as required by law and all rules promulgated by him or
her; and
(K) Verify any or all asset or liability accounts;
(7) Subject to the powers vested in the board by article three of this chapter, receive from any
person or persons and consider any request, petition or application relating to the organization,
location, conduct, services, policies and procedures of any financial institution and to act on the
request, petition or application in accordance with any provisions of law applicable thereto;
(8) In connection with the investigations required by subdivision (3), subsection (b) of this
section, issue subpoenas and subpoenas duces tecum, administer oaths, examine persons under oath,
and hold and conduct hearings. Any subpoenas or subpoenas duces tecum shall be issued, served and enforced in the manner provided in section one, article five, chapter twenty-nine-a of this code.
Any person appearing and testifying at a hearing may be accompanied by an attorney employed by
him or her;
(9) Issue declaratory rulings in accordance with the provisions of section one, article four,
chapter twenty-nine-a of this code;
(10) Study and survey the location, size and services of financial institutions, the geographic,
industrial, economic and population factors affecting the agricultural, commercial and social life of
the state and the needs for reducing, expanding or otherwise modifying the services and facilities of
financial institutions in the various parts of the state and compile and keep current data thereon to
aid and guide him or her in the administration of the duties of his or her office;
(11) Implement all of the provisions of this chapter, except the provisions of article three of
this chapter, and all other laws which he or she is empowered to administer and enforce by the
promulgation of rules in accordance with the provisions of article three, chapter twenty-nine-a of this
code;
(12) Implement the provisions of chapter forty-six-a of this code applicable to consumer
loans and consumer credit sales by the promulgation of rules in accordance with the provisions of
article three, chapter twenty-nine-a of this code as long as the rules do not conflict with any rules
promulgated by the state's attorney general;
(13) Foster and encourage a working relationship between the division of banking and
financial institutions, credit, consumer, mercantile and other commercial and finance groups and
interests in the state in order to make current appraisals of the quality, stability and availability of
the services and facilities of financial institutions;
(14) Provide to financial institutions and the public copies of the West Virginia statutes
relating to financial institutions, suggested drafts of bylaws commonly used by financial institutions
and any other forms and printed materials found by him or her to be helpful to financial institutions,
their shareholders, depositors and patrons and make reasonable charges for the copies;
(15) Delegate the powers and duties of his or her office, other than the powers and duties
excepted in this subdivision, to qualified division personnel who shall act under the direction and
supervision of the commissioner and for whose acts he or she is responsible, but the commissioner
may delegate to the deputy commissioner of banking and to no other division personnel the
following powers, duties and responsibilities, all of which are hereby granted to and vested in the
commissioner and for all of which the commissioner also is responsible. The commissioner shall:
(A) Order any person to cease violating any provision or provisions of this chapter or other
applicable law or any rule promulgated or order issued thereunder;
(B) Order any person to cease engaging in any unsound practice or procedure which may
detrimentally affect any financial institution or depositor of the financial institution;
including, but not limited to:
________(i) The business of making, arranging, acting as a middleman or brokering a cash advance
or loan to a borrower for a personal, family or household purpose pursuant to an agreement under
which (I) a check or share draft is executed; (II) the check, share draft or authorization for debit is
capable of being presented or drawn on the date made or on some future date on a federally insured
financial institution; (III) the check or share draft is used as security or as any direct or indirect part
of the transaction for the advance, loan or extension of credit; and (IV) the payment of the check or
share draft is deferred.
________(ii) The provisions do not apply to: (I) a federally insured financial institution using accounts
or funds on deposit in the financial institution as security or collateral for a loan made by the same
institution holding the account or funds; (II) the use of a postdated check as purchase money in a
transaction which has as its primary purpose the bona fide purchase of bona fide goods or services;
________(iii) Engaging in this state in the business described in subparagraph (i) of this subdivision
occurs if: (I) a signed writing evidencing the obligation or application of the consumer is received
by the creditor in this state; or (II) the creditor induces the consumer who is a resident of this state
to enter into the transaction by solicitation in this state by any means, including but not limited to: mail, telephone, radio, television, e-mail, pop-up web pages or any other electronic means: Provided,
That a loan that was solicited in this state as described in this paragraph is not a loan made in this
state if the consumer is physically present in another state when the consumer delivers a signed
writing to the creditor at its place of business in that other state;
________(iv) Any agreement in violation of subdivision (i) is void and unenforceable.
(C) Revoke the certificate of authority, permit or license of any financial institution except
a banking institution in accordance with the provisions of section thirteen of this article; and
(D) Accept an assurance in writing that the person will not in the future engage in the conduct
alleged by the commissioner to be unlawful, which could be subject to an order under the provisions
of this chapter. This assurance of voluntary compliance shall not be considered an admission of
violation for any purpose, except that if a person giving the assurance fails to comply with its terms,
the assurance is prima facie evidence that prior to this assurance the person engaged in conduct
described in the assurance;
(16) Seek and obtain civil administrative penalties against any person who violates this
chapter, the rules issued pursuant to this chapter, or any orders lawfully entered by the commissioner
or board of banking and financial institutions in an amount not more than five thousand dollars per
day for each violation: Provided, That all of the pertinent provisions of article five, chapter twenty-
nine-a of this code shall apply to any assessment of a penalty under this subsection;
(17) Receive from state banking institutions applications to change the locations of their
principal offices and to approve or disapprove these applications;
(18) Expend funds in order to promote consumer awareness and understanding of issues
related to residential mortgage lending; and
(19) Take other action as he or she may consider necessary to enforce and administer the
provisions of this chapter, except the provisions of article three of this chapter, and all other laws
which he or she is empowered to administer and enforce and apply to any court of competent
jurisdiction for appropriate orders, writs, processes and remedies."
The question now before the House being on the adoption of the amendment offered by the
Committee on Finance, as amended by Delegate Trump, the same was put by the Speaker.
Delegate Staton arose to a point of order as to the germaneness of the Committee
amendment, as amended.
The Speaker stated, following examination of the amendment and consultation with the
Clerk, that the fundamental purpose of the bill was to increase an assessment on regulated lenders
and the fundamental purpose of the Committee amendment, as amended, was two-fold: increasing
the banking commissioner's salary and to propose regulations on pay-day lenders, and ruled the
Committee amendment, as amended, was not germane to the bill.
The bill was then ordered to third reading.
Delegate Frich requested that the Journal record her as voting "Yea" on the amendment
offered by Delegate Trump to the Committee amendment.
Com. Sub. for S. B. 454, Relating to land-use planning; on second reading, coming up in
regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending, the bill on page forty-six, section twelve, line four, by striking
out the word "shall" and inserting in lieu thereof the word "may".
On page forty-six, section twelve, line five, after the word "chapter", by striking out the
period and inserting the words "or until the plans are revised, amended or replaced in accordance
with this chapter" followed by a period.
On page fifty, section two, line forty, subsection (a), subdivision (12), after the word
"charged", by striking out the semi-colon and inserting in lieu thereof the words "which are
proportioned to the cost of checking and verifying proposed plats" followed by a period.
On page fifty-nine, section six, line six, by striking out the word "thirty" and inserting in lieu
thereof the word "forty-five".
On page eighty-five, section ten, subsection (c), line seventeen, after the words "is maintained", by striking out the period and inserting a comma and the words "and no zoning
ordinance may prohibit alterations or additions to or replacement of buildings or structures owned
by any farm, industry or manufacturer, or the use of land presently owned by any farm, industry or
manufacturer but not used for agricultural, industrial or manufacturing purposes, or the use or
acquisition of additional land which may be required for the protection, continuing development or
expansion of any agricultural, industrial or manufacturing operation of any present or future satellite
agricultural, industrial or manufacturing use" followed by a period.
On page eighty-five, section ten, subsection (d), line twenty-five, after the words "Provided,
That", by striking out the words "in the case of natural resources, the absence of natural resources
extraction or harvesting is not abandonment of the use" and inserting in lieu thereof the words
"neither the absence of natural resources extraction or harvesting nor the absence of any particular
agricultural, industrial or manufacturing process may be construed as abandonment of the use".
On page eighty-six, section eleven, line six, by striking out the word "may" and inserting in
lieu thereof the word "shall".
On page eighty-six, section eleven, subdivision (2), beginning on line eleven, by striking out
said subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as
follows:
"(2) Arises from special conditions or attributes which pertain to the property for which a
variance is sought and which were not created by the person seeking the variance" followed by a
semi colon.
On page one hundred, section eleven, line twenty-one, at the end of subsection (e), by adding
an additional sentence to said subsection (e) to read as follows:
"If the board fails to provide findings of fact and conclusions of law adequate for decision
by the circuit court, and as a result of the failure, the circuit court returns an appealed matter to the
board and dismisses jurisdiction over an applicant's appeal without deciding the matter, whether the
court returns the matter with or without restrictions, the board shall pay any additional costs for court filing fees, service of process and reasonable attorneys' fees required to permit the person appealing
the board's decision to return the matter to the circuit court for completion of the appeal" followed
by a period.
On page one hundred four, section two, subsection (f), line forty-three, before the word
"Notice" at the beginning of the sentence, by adding the words "As an alternative to the requirements
for notice prescribed in the preceding subsections of this section" followed by a comma.
On page one hundred forty, section twenty-one, line two, by striking out the words "sixth day
of June" and inserting in lieu thereof the words "first day of January".
And,
By amending the enacting section to read as follows:
"That §31A-2-2 and §31A-2-8 of the code of West Virginia, 1931, as amended, be amended
and reenacted to read as follows" and a colon.
The bill was then ordered to third reading.
Com. Sub. for S. B. 502, Relating to rights of members of teachers defined contribution
retirement system; on second reading, coming up in regular order, was read a second time.
And amendment, recommended by the Committee on Finance, was reported by the Clerk and
adopted amending the bill on page two, after the enacting clause, by striking out the remainder of
the bill and inserting in lieu thereof the following:
"That §18-7B-7, §18-7B-9, §18-7B-11 and §18-7B-16 of the code of West Virginia, 1931,
as amended, be amended and reenacted; that said code be amended by adding thereto two new
sections, designated §18-7B-7a and §18-7B-20; and that said code be amended by adding thereto a
new article, designated §18-7C-1, §18-7C-2, §18-7C-3, §18-7C-4, §18-7C-5, §18-7C-6, §18-7C-7,
§18-7C-8, §18-7C-9, §18-7C-10, §18-7C-11, §18-7C-12, §18-7C-13 and §18-7C-14, all to read as
follows:
ARTICLE 7B. TEACHERS DEFINED CONTRIBUTION RETIREMENT SYSTEM.
§18-7B-7. Participation in teachers defined contribution retirement system; limiting participation in existing teachers retirement system.
(a) Beginning the first day of July, one thousand nine hundred ninety-one, and except as
provided in this section, the teachers defined contribution system shall be the single retirement
program for all new employees whose employment commences on or after that date and all new
employees are required to participate as a condition of employment. No additional new employees
except as may be provided in this section may be admitted to the existing teachers retirement system.
(b) Members of the existing teachers retirement system whose employment continues beyond
the first day of July, one thousand nine hundred ninety-one, and those whose employment was
terminated after the thirtieth day of June, one thousand nine hundred ninety-one, under a reduction
in force are not affected by subsection (a) of this section and shall continue to contribute to and
participate in the existing teachers retirement system without a change in plan provisions or benefits.
(c) Any person who was previously a member of the teachers retirement system and who left
participating employment before the creation of the defined contribution system on the first day of
July, one thousand nine hundred ninety-one, and who later returned to participating employment
after the effective date of this section has the right to elect to return to the existing teachers
retirement system or to elect to participate in the defined contribution system. The election shall be
made at the time of his or her reemployment, is irrevocable and shall be made upon forms approved
by and filed with the West Virginia consolidated public retirement board.
(d) Any person who was, prior to the first day of July, one thousand nine hundred ninety-one,
a member of the existing teachers retirement system who left participating employment before the
creation of the teachers defined contribution system on the first day of July, one thousand nine
hundred ninety-one, and who later returned to participating employment after that date and who was
precluded from returning to the existing teachers retirement system as a result of prior provisions of
this section, may elect, pursuant to the provisions of this section, readmission to the existing teachers
retirement system: Provided, That persons who are eligible to, and who make the election to,
terminate their participation in the defined contribution system and to return to participation in the existing teachers retirement system as provided in this section shall make the election, on a form
approved by and filed with the West Virginia consolidated public retirement board on or before the
thirtieth day of June, two thousand two: Provided, however, That as a condition of the right of
readmission to the existing teachers retirement system, persons making the election provided in this
section whose defined contribution account had not, prior to such election, been divided by a
qualified domestic relations order shall pay an additional contribution to the existing teachers
retirement system equal to one and one-half percent of his or her annual gross compensation earned
for each year during which he or she participated in the defined contribution system and shall consent
and agree to the transfer of his or her total account balance in the defined contribution system as of
the most recent plan valuation immediately preceding his or her transfer to the existing teachers
retirement system. For persons making the election provided in this section whose defined
contribution account had, prior to such election, previously been divided by a qualified domestic
relations order, the cost to such person to transfer to the existing teachers retirement system shall be
actuarially determined by the consolidated public retirement board. Upon verification of that
person's eligibility to return to participation in the existing teachers retirement system and the tender
and transfer of funds as provided in this subsection, persons making this election shall receive
service credit for the time the member participated in the defined contribution system as if his or her
participation had been in the existing teachers retirement system: Provided further, That the right
to terminate participation in the defined contribution system and to resume participation in the
existing teachers retirement system as provided in this section is irrevocable and shall not apply to
any person who, while a member of the teachers retirement system, voluntarily elected to terminate
his or her membership in the teachers retirement system and to become a participant in the defined
contribution system pursuant to section eight of this article.
(e) Any employee whose employment with an employer was suspended or terminated while
he or she served as an officer with a statewide professional teaching association is eligible for
readmission to the existing retirement system in which he or she was a member.
(f) An employee whose employment with an employer or an existing employer is suspended
as a result of an approved leave of absence, approved maternity or paternity break in service or any
other approved break in service authorized by the board is eligible for readmission to the existing
retirement system in which he or she was a member.
(g) In all cases in which a question exists as to the right of an employee to readmission to
membership in the existing teachers retirement system, the consolidated public retirement board shall
decide the question.
(h) Any individual who is not a 'member' or 'employee' as defined by section two of this
article and any individual who is a leased employee is not eligible to participate in the teachers
defined contribution system. For purposes of this section, 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. In all cases in which a question exists as to
whether an individual is eligible for membership in this system, the consolidated public retirement
board shall decide the question.
(i) Effective the first day of July, two thousand four and continuing through the first day of
two thousand five, any employee of River Valley Child Development Services, Inc., who is a
member of the teacher's defined contribution retirement system may elect to withdraw from
membership.
_____(j) River Valley Child Development Services, Inc., and its successors in interest shall provide
for their employees a pension plan in lieu of the teacher's defined contribution retirement system on
or before the first day of July, two thousand four, and continuing thereafter during the existence of
the River Valley Child Development Services, Inc., and its successors in interest. All new employees
hired after the thirtieth day of June, two thousand four, shall participate in said pension plan in lieu
of the teachers' defined contribution retirement system.
_____(k) The administrative bodies of River Valley Child Development Services, Inc., shall, on or before the first day of May, two thousand four, give written notice to each employee who is a
member of the teacher's defined contribution retirement system of the option to withdraw from or
remain in the system. The notice shall include a copy of this section and a statement explaining the
member's options regarding membership. The notice shall include a statement in plain language
giving a full explanation and actuarial projection figures in support of the explanation regarding the
individual member's current account balance, vested and nonvested, and his or her projected return
upon remaining in the teacher's defined contribution retirement system until retirement, disability
or death, in comparison with the projected return upon withdrawing from the public employees
retirement system and joining a private pension plan provided by River Valley Child Development
Center, Inc., and remaining therein until retirement, disability or death. The administrative bodies
shall keep in their respective records a permanent record of each employee's signature confirming
receipt of the notice.
§18-7B-7a. Plan closed to persons employed for the first time after June, 2004; former
employees.
The retirement system created and established in this article shall be closed and no new
members accepted therein after the thirtieth day of June, two thousand four. Notwithstanding the
provisions of sections seven and eight of this article, all persons who are regularly employed for full-
time service as a member or employee whose initial employment commences after the thirtieth day
of June, two thousand four, shall become members of the state teachers' retirement system created
and established in article seven-a of this chapter: Provided, That any person rehired after the thirtieth
day of June, two thousand four, shall become a member of the teachers' defined contribution
retirement system created and established in this article, or of the teachers retirement system created
and established in article seven-a of this chapter, depending upon the system to which he or she last
contributed while he or she was employed with an employer mandating membership and
contributions to one of those plans: Provided, however, That if, and only if, the teachers' defined
contribution retirement system is merged and consolidated with the teachers retirement system pursuant to the provisions of article seven-c of this chapter, then all employees shall become a
member of the teachers retirement system as of the first day of July, two thousand five, as provided
in article seven-c of this chapter.
§18-7B-9. Members' contributions; annuity account established.
(a) Each employee who is a member of the defined contribution system shall contribute four
and one-half percent of his or her gross compensation by salary reduction. Such salary reductions
shall be made by the employer at the normal payroll intervals and shall be remitted within five
working days to the private pension, insurance, annuity, mutual fund or other qualified company or
companies designated by the board to administer the day-to-day operations of the system.
(b) All member contributions shall be immediately deposited to an account or accounts
established in the name of the member and held in trust for the benefit of the member. An account
agreement shall be issued to each member setting forth the terms and conditions under which
contributions are received and the investment and retirement options available to the member. The
board shall promulgate by the thirtieth day of June, one thousand nine hundred ninety-one, pursuant
to section six of this article, rules defining the minimum requirements for the investment and
retirement options to be provided to the members.
(c) The consolidated public employees retirement board shall study the feasibility of
employees making personal contributions to the defined contribution system in addition to those
required by this section and the impact of the United States Internal Revenue Code of one thousand
nine hundred eighty-six, as amended, upon such contributions. The results of said study and
recommendations for legislation to authorize such additional payments shall be presented to the
committee on pensions and retirement of each house of the Legislature on or before the first day of
October, one thousand nine hundred ninety-six.
_____(c) Such rules, to the extent not inconsistent with the applicable provisions of the Internal
Revenue Code of the United States, shall provide for varied retirement options including, but not limited to:
(1) Lump sum or periodic payment distributions;
(2) Joint and survivor annuities;
(3) Other annuity forms in the discretion of the board;
(4) Variable annuities which gradually increase monthly retirement payments: Provided,
That said the increased payments are funded solely by the existing current value of the member's
account at the time the member's retirement payments commencement commenced and not, to any
extent, in a manner which would require additional employer or employee contributions to any
member's account after retirement or after the cessation of employment; and
(5) The instances in which, if any, distributions or loans can be made to members from their
annuity account balances prior to having attained the age of fifty-five.
§18-7B-11. Termination of membership.
(a) Any member whose employment with a participating employer terminates after the
completion of six complete years of employment service shall be eligible to may terminate his or her
annuity account and receive a distribution from the member's annuity account in an amount equal
to the member's contribution plus one third of the employer contributions and any earnings thereon.
Any member whose employment with a participating employer terminates after the completion of
nine complete years of employment service shall be eligible to may terminate his or her annuity
account and receive a distribution from the member's annuity account in an amount equal to the
member's contribution plus two thirds of the employer's contributions and any earnings thereon.
Any member whose employment with a participating employer terminates after the completion of
twelve complete years of employment service shall be eligible to may terminate his or her annuity
account and receive a distribution of all funds contributed and accumulated in his or her annuity
account. Any member whose employment with a participating employer terminates prior to the
completion of six complete years of employment service shall be eligible to may terminate his or her annuity account and receive a distribution from the member's annuity account, in an amount equal
to the member's contribution plus any earnings thereon: Provided, That on the death or permanent
total disability of any member, that member shall be eligible to may terminate his or her annuity
account and receive all funds contributed by any source to or accumulated in his or her annuity
account.
_____(b)(1) Upon termination of employment, regardless of whether the member has taken a
distribution of all or of a portion of his or her vested account, the remaining balance, if any, in the
member's employer account after the distribution that is not vested shall be remitted and paid into
a suspension account, hereby created continued, to be administered by the board. The board shall
promulgate rules regarding the distribution of any balance in the special account created by this
section: Provided, That any funds in the account shall may be used solely for the purpose of
reducing employer contributions in future years.
(2) Any account balances remitted to the suspension account herein shall be maintained by
the board in said the suspension account in the name of the terminated employee for a period of five
years following initial remittance to the suspension account the member's termination of
employment. For each said terminated employee at the culmination of the aforesaid five-year period,
the board shall certify in writing to each contributing employer the amount of the account balances
plus earnings thereon attributable to each separate contributing employers previously terminated
employees' accounts which have been irrevocably forfeited due to the elapse of a five-year period
since termination pursuant to section sixteen of this article.
_____(c) Upon certification to the several contributing employers of the aggregate account balances
plus earnings thereon which have been irrevocably forfeited pursuant to this section, the several
contributing employers shall be permitted in the next succeeding fiscal year or years to reduce their
total aggregate contribution requirements pursuant to section seventeen of this article, for the then
current fiscal year by an amount equal to the aggregate amounts irrevocably forfeited and certified as such to each contributing employer: Provided, That should the participating employer no longer
be contributing to the defined contribution system, any funds in the account shall be paid directly to
the employer.
(d) Upon the utilization use of the amounts irrevocably forfeited to any contributing employer
as a reduction in the then current fiscal year contribution obligation and upon notification provided
by the several contributing employers to the board of their intention to utilize use irrevocably
forfeited amounts, the board shall direct the distribution of said the irrevocably forfeited amounts
from the suspension account to be deposited on behalf of the contributing employer to the member
annuity accounts of its then current employees pursuant to section seventeen of this article:
Provided, That notwithstanding any provision of this article to the contrary, when a member is or
has been elected to serve as a member of the Legislature and the proper discharge of his or her duties
of public office require requires that member to be absent from his or her teaching, nonteaching or
administrative duties, the time served in discharge of his or her duties of the legislative office are
credited as time served for purposes of computing service credit, regardless when this time was
served: Provided, however, That the board may not require any additional contributions from that
member in order for the board to credit him or her with the contributing service credit earned while
discharging official legislative duties: Provided further, That nothing herein in this subsection may
be construed to relieve the employer from making the employer contribution at the member's regular
salary rate or rate of pay from that employer on the contributing service credit earned while the
member is discharging his or her official legislative duties. These employer payments shall
commence as of the first day of July, two thousand three: And provided further, That any member
to which the provisions of this subsection apply may elect to pay to the board an amount equal to
what his or her contribution would have been for those periods of time he or she was serving in the
Legislature.
§18-7B-16. Years of employment service.
(a) A member of the defined contribution system who terminates employment with a
participating employer and does not remove any funds from his or her annuity vested employee and
employer account, or who removes the funds and repays them within five years after termination,
and becomes reemployed with a participating employer within five years shall retain his or her
previous years of employment service for purposes of the provisions of section eleven of this article
does not forfeit any amounts placed into the suspension account pursuant to section eleven of this
article and they shall be returned to his or her employer account.
(b) All years of employment service shall be counted for vesting purposes under section
eleven of this article.
§18-7B-20. Prohibition of involuntary cash-outs.
After the thirtieth day of June, two thousand four, notwithstanding any provision of this
section or of any legislative rule to the contrary, no involuntary cash-out shall be made to a member
without the consent of the member regardless of the present value of the member's accrued benefit
or any portion thereof. For purposes of this section, 'involuntary cashout' means a distribution of
an accrued benefit or a portion thereof to a former member because of the member's termination of
participation in the teachers' defined contribution retirement system without the member's consent.
ARTICLE 7C. MERGER OF TEACHERS' DEFINED CONTRIBUTION RETIREMENT
SYSTEM WITH STATE TEACHERS RETIREMENT SYSTEM.
§18-7C-1. Short title.
This article may be cited as the 'Teachers' Retirement Equity Act'.
§18-7C-2. Legislative findings and purpose.
The Legislature declares that the State of West Virginia and its citizens have always believed
in a strong public education system, with our own constitution mandating a thorough and efficient
public education system. The Legislature notes that the quality of our State's education system is dependent, inter alia, upon the motivation and quality of its teachers and educational service
personnel.
The Legislature finds and declares that the State of West Virginia is privileged to be the home
of some of the best teachers and service personnel in this nation, and that our teachers and service
personnel are dedicated and hard working individuals. The Legislature further finds and declares
that our teachers and service personnel should have a retirement program whereby they know in
advance what their retirement benefit will be, a defined benefit retirement program where our
teachers and service personnel will not have to bear the risk of investment performance to receive
their full retirement benefit. The Legislature notes that uncertainty exists in the investment markets,
especially in the post September eleven era, and that placing this risk and uncertainty upon the state
in the form of a defined benefit plan will protect and ensure a retirement benefit for our teachers and
educational service personnel.
The Legislature declares that it is in the best interests of the teachers and public education
in this state and conducive to the fiscal solvency of the teachers retirement system that the teachers'
defined contribution retirement system be merged with the state teachers retirement system.
The Legislature also finds that a fiscally sound retirement program with an ascertainable
benefit aids in the retention and recruitment of teachers and school service personnel, and that the
provisions of this article are designed to accomplish the goals set forth in this section.
The Legislature has studied this matter diligently and in making the determination to merge
the two plans has availed itself of an actuarial study of the proposed merger by the actuary of the
consolidated public retirement board as well as engaging the service of two independent actuaries.
§18-7C-3. Definitions.
As used in this article, unless the context clearly requires a different meaning:
(1) 'Defined contribution system' means the teachers' defined contribution system created
and established in article seven-b of this chapter.
(2) 'Existing retirement system' or 'state teachers retirement system' means the state teachers
retirement system created and established in article seven-a of this chapter.
(3) 'Board' means the consolidated public retirement board created and established in article
ten-d, chapter five of this code and its employees.
(4) 'Member' means and includes any person who has at least one dollar in the defined
contribution system.
(5) 'Assets' or 'all assets' means all member contributions, employer contributions and
interest or asset appreciation in a member's defined contribution account, less any applicable fees
as approved by the board.
(6) 'Salary' or 'annual salary' means the annual contract salary for those persons working in
accordance with an employment contract and in any other event as an annualized amount determined
by multiplying a person's hourly rate of pay by two thousand eighty hours.
(7) 'Date of merger' means, in the event of a positive vote on the merger, the first day of July,
two thousand five.
§18-7C-4. Merger.
On the first day of July, two thousand five, the teachers' defined contribution retirement
system created and established in this article shall be merged and consolidated with the teachers
retirement system created and established in article seven-a of this chapter, pursuant to the provisions
of this article: Provided, That if the majority of the voting members of the teachers' defined
contribution retirement system do not elect in favor of the merger, then the provisions of this article
are void and of no force and effect, and the defined contribution system created and established in
article seven-b of this chapter shall continue as the retirement system for all members in that system
as of the thirtieth day of June, two thousand five and for those persons rehired who were paying into
the defined contribution system at the time of his or her last employment.
If the merger provided for in this article occurs, should any future increase of existing
benefits or the creation of new benefits under the teachers retirement system, other than an increase
in benefits or new benefits effected by operation of law in effect on the effective date of this article,
cause any additional unfunded actuarial accrued liability in the state teachers retirement pension
system (calculated in an actuarially sound manner) during any fiscal year, such additional unfunded
actuarial accrued liability of that pension system shall be fully amortized over no more than the seven
consecutive fiscal years following the date the increase in benefits or new benefits become effective.
§18-7C-5. Notice, education, record keeping requirements.
(a) Commencing not later than the first day of August, two thousand four, the consolidated
public retirement board shall begin an educational program with respect to the merger of the defined
contribution plan with the state teachers retirement system. This education program shall address,
at a minimum, the law providing for the merger, the mechanics of the merger, the election process,
relevant dates and time periods, the benefits, potential advantages and potential disadvantages if
members elect to remain in the defined contribution system, the benefits, potential advantages and
potential disadvantages of becoming members of the teachers retirement system, potential state and
federal tax implications in general attendant to the various options available to the members and any
other pertinent information deemed relevant by the board. The board shall provide this information
through its website, by written materials, electronic materials or both written and electronic materials
delivered to each member and by classes or seminars, if, in the best judgment of the board, the
classes and seminars are necessary. The board shall also provide this information through computer
programs, or, at the discretion of the board through a program of individual counseling which is
optional on the part of the member, and through any other educational program or programs deemed
necessary by the board.
(b) The board shall provide each member with a copy of the written or electronic educational
materials and with a copy of the notice of the election. The notice shall provide full and appropriate disclosure of the merger and the election process, including the date of the election. The board shall
also cause notice of the election to be published in at least ten newspapers of general circulation in
this state. This notice shall be by Class III legal advertisement published in accordance with the
provisions of article three, chapter fifty-nine of this code. The board shall cause this notice to be
published not later than thirty days prior to the beginning of the election period and not sooner than
sixty days prior to the beginning of the election period.
(c) It is the responsibility of each member of the defined contribution plan to keep the board
informed of his or her current address. If a member does not keep the board informed of his or her
current address, he or she is deemed to have waived his or her right to receive any information from
the board.
(d) Once the board has complied with the provisions of this section, every member of the
defined contribution plan is deemed to have actual notice of the election and all matters pertinent
thereto.
§18-7C-6. Conversion of assets from defined contribution system to state teachers retirement
system.
(a) If a majority of members voting elect to merge the defined contribution system into the
state teachers retirement system, the consolidation and merger shall be governed by the provisions
of this article, the defined contribution retirement system shall not exist after the thirtieth day of
June, two thousand five, and all members thereof shall become members of the state teachers
retirement system as provided herein.
(b) Following the election in favor of the merger, the board shall transfer all assets in the
defined contribution account into the state teachers retirement system and members have the option
to pay into the state teachers retirement system a one and one-half of one percent contribution for
service in the defined contribution plan being recognized in the state teachers retirement system.
This contribution shall be calculated based on the member's salary as of the thirtieth day of June, two thousand four, and the members attained age on that date, applying an annual backward salary scale
projection from that date for prior years based upon the salary scale assumption applied in the
actuarial valuation dated the first day of July, two thousand three, for the teachers retirement system
and a one year forward salary scale projection for the year ending on the thirtieth day of June, two
thousand five. Members have until the first day of July, two thousand six, to pay this amount. If a
member makes no payment whatsoever toward this amount by the first day of July, two thousand
six, the member is deemed to have forever waived his or her right to pay this amount and to have
made an irrevocable election not to pay this amount. In this instance, the board shall make the
appropriate actuarial adjustment to that member's annuity.
(c) The board shall make available to the members a loan in accordance with the provisions
of section thirty-four, article seven-a of this chapter to be used by the members to pay all or a part
of the one and one-half percent amount established in this section. Notwithstanding any provision
of this code, any rule or any policy of the board to the contrary, the interest rate on any loan used to
pay the one and one-half percent amount may not exceed seven and one-half percent per annum and
the amount borrowed may not exceed twelve thousand dollars. In the event a plan loan is used to
pay the one and one-half percent, the board shall make any actuarial adjustments at the time the loan
is made. The board shall make this plan loan available for members until the thirtieth day of June,
two thousand six.
(d) The board shall include a payroll deduction program for the repayment of the plan loan
established in this section.
(e) If the merger and consolidation is elected by a majority of those person voting, as of the
first day of July, two thousand five, the members' contribution rate shall become six percent of his
or her salary or wages and the retirement members who make a contribution into the state teachers
retirement system on or after the first day of July, two thousand five, shall be governed by the
provisions of article seven-a of this chapter subject to the provisions of this article.
(f) In the event a member has withdrawn or cashed out part of his or her defined contribution
plan, that member will not be given credit for those moneys cashed out or withdrawn. The board
shall make an actuarial determination as to the amount of credit a member loses on the amounts he
or she has withdrawn or cashed out which actuarial adjustment shall be expressed as a loss of service
credit: Provided, That a member may repay those amounts he or she cashed out or withdrew, along
with interest determined by the board and receive the same credit as if the withdrawal or cash out
never occurred if this repayment is completed within five years following the date of the cash out
or withdrawal: Provided, however, That these amounts shall be fully repaid no later than the thirtieth
day of June, two thousand five. If the repayment is five or more years following the cash out or
withdrawal, then he or she must repay any forfeited employer contribution account balance along
with interest determined by the board in addition to the cash out or withdrawn amount: Provided
further, That these amounts shall be fully repaid not later than the thirtieth day of June, two thousand
five.
(g) Where the member has cashed out of his or her teacher defined contribution plan account
balance after the last day of June, two thousand, and that member wishes to repurchase defined
contribution plan service after the thirtieth day of June, two thousand five, then the member must
repay the teachers retirement plan within five years of the date of cash out.
(h) Any prior service in the state teachers retirement system a member may have is not
affected by the provisions of this article.
§18-7C-7. Service credit in state teachers retirement system following merger.
Any member transferring all of his or her assets from the defined contribution system to the
state teachers retirement system pursuant to the provisions of this article, and who has not made any
withdrawals from his or her defined contribution plan, is entitled to service credit in the state
teachers retirement system for each year, or part thereof, as governed by the provisions of article
seven-a of this chapter, the member worked and contributed to the defined contribution plan. Any member who has made withdrawals or cash outs will receive service credit based upon the amounts
transferred and the board shall make the appropriate actuarial determination of the service credit the
member will receive.
§18-7C-8. Election; board may contract for professional services.
(a) The board shall arrange for and hold an election for the members of the defined
contribution plan on the issue of merging and consolidating the defined contribution plan into the
state teachers retirement plan with the result being that, if a majority of the members casting ballots
vote in the positive on the issue, all members of the defined contribution plan will transfer, or have
transferred, all assets held by them or on their behalf in the defined contribution plan to and become
members of, and entitled to the benefits of the state teachers retirement system and be governed by
the provisions of the state teachers retirement system subject to the provisions of this article:
Provided, That at least one-half of the members of the defined contribution plan must vote on the
question in order for the election to be valid and binding.
(b) Any person who has one dollar or more in a defined contribution account created and
established pursuant to article seven-b of this chapter, is allowed to vote on the question of the
merger.
(c) The board may retain the services of the professionals it deems necessary to: (1) Assist
in the preparation of educational materials for members of the defined contribution plan to inform
these members of their options in the election; (2) assist in the educational process of the members;
(3) assist in the election process and the election; and (4) ensure compliance with all relevant state
and federal laws.
(d) Due to the time constraints inherent in the merger process set forth in this article in
specific, and to the nature of the professional services required by the consolidated public retirement
board in general, the provisions of article three, chapter five-a of this code relating to the division
of purchasing of the department of administration do not apply to any contracts for any actuarial services, investment services, legal services or other professional services authorized under the
provisions of this article.
(e) The election provided for in this section may be held through certified mail or in any other
way the board determines is in the best interest of the members. Each ballot shall contain the
following language, in bold fifteen point type: 'By casting this ballot I am making an educated,
informed and voluntary choice as to my retirement and the retirement system of which I wish to be
a member. I am also certifying that I understand the consequences of my vote in this election.' Each
ballot shall be signed by the member voting. The board shall retain the ballots in a permanent file.
(f) The election period shall begin not later than the first day of March, two thousand five and
the board shall ascertain the results of the election not later than the last day of March, two thousand
five. The board shall certify the results of the election to the governor, to the Legislature and to the
members not later than the fifth day of April, two thousand five.
(g) The election period shall terminate and no votes may be cast or counted after the twelfth
day of March, two thousand five, except that if the election is conducted through the United States
mails, the ballot shall be postmarked not later than the twelfth day of March, two thousand five, in
order to be counted.
(h) The board shall take all necessary steps to see that the merger does not affect the qualified
status with the Internal Revenue Service of either retirement plan.
§18-7C-9. Election deemed final.
(a) The election is deemed final and each member, whether he or she votes, or fails to vote,
shall thereafter be bound by the results of the election. Every member is deemed to have made an
informed, educated, knowing and voluntary decision and choice with respect to the election. Those
members who fail or refuse to vote are also deemed to have made an informed, educated, knowing
and voluntary decision and choice with respect to the election and with respect to voting and shall
be bound by the results of the election as if he or she voted in the same.
(b) Only one election may be held pursuant to the provisions of this article on the issue of
merging and consolidating the defined contribution plan with the state teachers retirement plan.
§18-7C-10. Qualified domestic relations orders.
Any member having a qualified domestic relations order against his or her defined
contribution account is allowed to repurchase service in the state teachers retirement system by
repaying any moneys distributed to the alternate payee along with the interest as set by the board:
Provided, That a member shall repay any amounts under this section by the last day of June, two
thousand eleven. The provisions of this section are void and of no effect if the members of the
defined contribution plan fail to elect to merge and consolidate the defined contribution plan with
the state teachers retirement system.
§18-7C-11. Vesting.
Any member who works one hour or more after the date of merger provided for in this article
occurs is subject to the vesting schedule set forth in article seven-a of this chapter: Provided, That
if a member is vested under the defined contribution plan and his or her last contribution was not
made to the state teachers retirement system, that member is subject to the vesting schedule set forth
in article seven-b of this chapter.
§18-7C-12. Minimum guarantees.
(a) Any member of the defined contribution plan who has made a contribution to the state
teachers retirement system after the date of merger is guaranteed a minimum benefit equal to his or
her contributions to the defined contribution plan as of the thirtieth day of June, two thousand five,
plus his or her vested employer account balance as of that date, as stated by the board or the boards
professional contractor.
(b) A member of the defined contribution plan who has made contributions to the state
teachers retirement system after the thirtieth day of June, two thousand five, where that plan has been
merged into the state teachers retirement system pursuant to the provisions of this article shall have, upon eligibility to receive a distribution under article seven-a of this chapter, at a minimum, the
following three options: (1) The right to receive an annuity from the state teachers retirement system
created and established in article seven-a of this chapter based upon the benefit and vesting
provisions of that article; (2) the right to withdraw from the state teachers retirement plan and receive
his or her member accumulated contributions plus regular interest thereon as set forth in article
seven-a of this chapter; or (3) the right to withdraw and receive his or her original vested defined
contribution account balance as of the date of the merger as determined by the board or its
professional third party benefits administrator pursuant to the vesting provisions of section twelve
of this article.
(c) Any member of the teachers' defined contribution system who makes no contribution to
the state teachers retirement system following approval of the merger and following the date of
merger is guaranteed the receipt of the amount in his or her total vested account in the defined
contribution plan on the date of merger plus interest thereon at four percent accruing from the date
of merger.
§18-7C-13. Due process and right to appeal.
Any person aggrieved by any actuarial determination made by the board following the
election, if the result of the election is in favor of merger and consolidation, may petition the board
and receive an administrative hearing on the matter in dispute. The administrative decision may be
appealed to a circuit court.
§18-7C-14. Nonseverability.
If any provision of this article is held unconstitutional or void, the remaining provisions of
this article shall be void and of no effect and, to this end, the provisions of this article are hereby
declared to be nonseverable."
The bill was then ordered to third reading.
S. B. 575, Continuing motor vehicle dealers advisory board; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 578, Continuing design-build board; on second reading, coming up in regular order, was
read a second time.
Delegate Trump moved to amend the bill on page one, after the enacting clause, by striking
out the remainder of the bill and inserting in lieu thereof the following:
"That §5-22A-5 and §5-22A-15 of the code of West Virginia, 1931, as amended, be amended
and reenacted to read as follows:
ARTICLE 22A. DESIGN-BUILD PROCUREMENT ACT.
§5-22A-5. Duties of board.
(a) Prior to allowing an agency to enter into design-build contracts for public projects, the
board must determine that the public project is appropriate as a design-build project in accordance
with all of the following:
(1) The agency requires a project design and construction time line that is faster than the
traditional design-bid-build process would allow;
(2) The project requires close coordination of design and construction expertise or an extreme
amount of coordination; and
(3) The agency requires early cost commitments.
(b) After the first day of July, two thousand five, no design-build contract as defined in
section two of this article shall be approved in the state of West Virginia.
§5-22A-15. Continuation of board.
Pursuant to the provisions of article ten, chapter four of this code, the The design-build board
shall continue to exist until the first day of July, two thousand four five, unless sooner terminated,
continued or reestablished , pursuant to the provisions of article ten, chapter four of this code."
The question now before the House being on the adoption of the amendment, the same was
put and did not prevail.
The bill was then ordered to third reading.
S. B. 718, Authorizing board of examiners of psychologists set fees by rule; on second
reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported
by the Clerk and adopted, amending the bill on page one, after the enacting section, by striking out
the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 21. PSYCHOLOGISTS; SCHOOL PSYCHOLOGISTS.
§30-21-8. Issuance of license; renewal of license; renewal fee; display of license
.
(a) Whenever the board finds that an applicant meets all of the requirements of this article
for a license to engage in the practice of psychology, it shall forthwith issue to him such license; and
otherwise the board shall deny the same. The board shall issue a license to engage in the practice of
psychology to those persons who meet the requirements of this article.
(b) The license shall be valid for a period of two years from the date issued and may be
renewed for a period of two years without examination upon application for renewal on a form
prescribed by the board and payment to the board of a reasonable renewal fee to be set by the board
by legislative rule: of thirty dollars: Provided, That the board may deny an application for renewal
for any reason which would justify the denial of an original application for a license.
(c) The board shall prescribe the form of licenses and each license shall be conspicuously
displayed by the licensee at his principal place of practice.
§30-21-9. Temporary permits.
(a) Upon proper application the board may issue, without examination, a temporary permit
to engage in the practice of psychology in this state:
(1) Pending examination, to an applicant who meets the qualifications of subdivisions (1),
(2), (3), (4), (6) and (7), subsection (a), section seven of this article, which temporary permit shall
expire thirty days after the board gives written notice of the results of the examination held next
following the issuance of such temporary permit, and such permit may not be renewed nor another
thereof may another permit be issued to the same person; and
(2) To a psychologist who is not a resident of this state and who meets the requirements of
subdivisions (1), (2), (3), (4), (6) and (7), subsection (a), section seven of this article, which
temporary permit shall be valid only for a period of ninety days in the calendar year in which issued,
and such permit may not be renewed nor another thereof may another permit be issued to the same
person in the same calendar year.
(b) The fee for any temporary permit shall be fifty dollars set by the board by legislative rule.
§30-21-10a. Rulemaking.
(a) The board may propose rules for legislative approval in accordance with the provisions
of article three, chapter twenty-nine-a of this code, to provide for:
(1) Licensure requirements, including requirements for applications, examinations,
reciprocity, temporary permits and reinstatement;
(2) Fees for licenses, renewals of licenses and other services provided by the board;
(3) Experience, education and continuing education requirements and approval of courses;
and
(4) Any other purpose to carry out the requirements of this article.
(b) Any rules in effect as of the passage of this article will remain in effect until amended,
modified, repealed or replaced."
The bill was then ordered to third reading
S. B. 722, Repealing section prohibiting giving away or selling liquor in buildings where boxing is held; on second reading, coming up in regular order, was read a second time and ordered
to third reading.
H. B. 4759, Imposing an alternative minimum personal income tax for each taxable year on
the West Virginia taxable income of every individual meeting certain criteria; on second reading,
coming up in regular order, was read a second time.
On motion of Delegate Michael, the bill was amended on page two, section three-a,
beginning on line six, by deleting subsection (b) in its entirety and inserting in lieu thereof the
following subsection (b):
"(b) Rate and measure of tax.--The alternative minimum tax imposed pursuant to the
provisions of this article is sixty percent of all taxable income received by a taxpayer. This
alternative minimum tax applies where a taxpayer receives in excess of one hundred thousand dollars
for the performance of managerial and administrative services for any senior center or combination
of senior centers receiving any funds from the State of West Virginia or from the federal
administration on aging: Provided, That for the purposes of this section, income includes wages,
salaries, fringe benefits in excess of those which are ordinary and usual in the industry, and
contractual income: Provided, however, That this alternative minimum tax only applies to taxable
income in any form, including extraordinary fringe benefits, which is derived solely from any activity
of performing managerial or administrative services for a senior center."
Delegate Trump sought to amend the bill on page one, following the enacting section, by
offering a strike and insert amendment.
Unanimous consent having been obtained, Delegate Trump then withdrew the amendment.
The bill was then ordered to engrossment and third reading.
H. B. 4760, Supplemental appropriation to the governor's office - office of economic
opportunity
; on second reading, coming up in regular order, was read a second time and ordered to
engrossment and third reading.
H. B. 4761, Supplemental appropriation to the department of agriculture - donated food fund
;
on second reading, coming up in regular order, was read a second time and ordered to engrossment
and third reading.
H. B. 4762, Supplemental appropriation to the department of military affairs and public
safety - office of emergency services; on second reading, coming up in regular order, was read a
second time and ordered to engrossment and third reading.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time
and ordered to second reading:
Com. Sub. for S. B. 143, Relating to small employer accident and sickness insurance
policies,
Com. Sub. for S. B. 163, Establishing Water Resources Protection Act,
Com. Sub. for S. B. 197, Relating generally to distribution of net terminal income of
racetrack video lottery terminals,
S. B. 316, Providing procedures for determining daily cost for certain inmates,
S. B. 319, Relating to centers for housing young adult offenders,
Com. Sub. for S. B. 327, Authorizing department of administration to promulgate legislative
rules,
Com. Sub. for S. B. 350, Authorizing bureau of commerce to promulgate legislative rules,
Com. Sub. for S. B. 399, Authorizing miscellaneous boards and agencies to promulgate
legislative rules,
Com. Sub. for S. B. 456, Requiring state agencies administering funds or grants notify
grantee in certain cases,
Com. Sub. for S. B. 508, Relating to commission on arts,
S. B. 536, Relating to claims against state,
S. B. 558, Making misuse of power of attorney or fiduciary relationship crime,
S. B. 574, Allowing commissioner to sell liquor warehouse under certain circumstances,
Com. Sub. for S. B. 616, Relating to environmental protection advisory council,
Com. Sub. for S. B. 637, Relating to termination of tenancy of factory-built home site; other
provisions,
S. B. 673, Relating to reporting requirements on coal resource transportation roads,
Com. Sub. for S. B. 675, Relating to outdoor advertising revenues,
And,
S. B. 719, Increasing tax on providers of nursing facility services.
Miscellaneous Business
Delegate Boggs announced that he was absent on Wednesday, March 10, 2004, when the
votes were taken on Roll Nos. 461 through 467, and that had he been present, he would have voted
"Yea" thereon.
Delegate Ferrell announced that he was absent on Wednesday, March 10, 2004, when the
votes were taken on Roll Nos. 482 through 485, and that had he been present, he would have voted
"Yea" thereon.
At 12:48 p.m., on motion of Delegate Staton, the House of Delegates recessed until 6:00 p.m.,
and reconvened at that time.
* * * * * * * * * *
Evening Session
* * * * * * * * * *
Special Calendar
Second Reading
Com. Sub. for S. B. 165, Simplifying state higher education tuition and fee system; on
second reading, having been postponed until this time, was, at the request of Delegate Varner, and
by unanimous consent, laid over one day.
At the request of Delegate Varner, and by unanimous consent, the House of Delegates
returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S. B. 714, Expiring funds to unappropriated balance of general revenue from insurance
commission fund,
S. B. 715, Expiring funds to unappropriated balance of general revenue from public service
commission,
S. B. 526, Making supplementary appropriation of public moneys from unappropriated
surplus balance in general revenue to division of rehabilitation services,
And,
S. B. 713, Expiring funds to unappropriated balance of general revenue from board of risk
and insurance management, premium tax savings fund,
And reports the same back with the recommendation that they each do pass.
At the respective requests of Delegate Varner, and by unanimous consent, the bills (S. B. 714,
S. B. 715, S. B. 526 and S. B. 713) were taken up for immediate consideration, read a first time and then ordered to second reading.
On motions for leave, bills were introduced (Originating in the Committee on Finance and
reported with the recommendation that they each do pass), which were read by their titles, as
follows:
By Delegates Michael, Foster, Warner, Boggs and Susman:
H. B. 4764 - "A Bill making a supplementary appropriation from the balance of moneys
remaining unappropriated for the fiscal year ending June 30, 2004, to the public service commission-
gas pipeline division, fund 8624, fiscal year 2004, organization 0926, all supplementing and
amending the appropriation for the fiscal year ending June 30, 2004,"
And,
By Delegates Michael, Proudfoot and Frederick:
H. B. 4765 - "A Bill making a supplementary appropriation from the balance of moneys
remaining unappropriated for the fiscal year ending June 30, 2004, to the public service commission,
fund 8623, fiscal year 2004, organization 0926, all supplementing and amending the appropriation
for the fiscal year ending June 30, 2004."
At the respective requests of Delegate Varner, and by unanimous consent, the bills (H. B.
4764 and H. B. 4765) were taken up for immediate consideration, read a first time and then ordered
to second reading.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 271, Relating to racial profiling data collection,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.
In the absence of objection, reference of the bill (Com. Sub. for S. B. 271) to the Committee
on Finance was abrogated.
On motion for leave, a bill was introduced (Originating in the Committee on the Judiciary
and reported by unanimous vote of the Committee, with the recommendation that it do pass), which
was read by its title, as follows:
By Delegates Brown, Webb, Armstead, Webster, Palumbo, Calvert and Amores:
H. B. 4763 - "A Bill extending the time for the city council of Dunbar to meet as a levying
body for the purpose of presenting to the voters of the city an election to continue an additional city
levy to maintain the present salaries of all employees of the paid fire and paid police departments
of the City of Dunbar and to repair and service existing police department and fire fighting
equipment and to purchase additional fire fighting and police equipment where necessary from
between the seventh and twenty-eighth days of March and the third Tuesday in April until the thirty-
first day of May, two thousand four."
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 596, Relating to powers and duties of board of directors of state board
of risk and insurance management,
And reports the same back with the recommendation that it do pass.
At the respective requests of Delegate Varner, and by unanimous consent, the bill (Com. Sub.
for S. B. 596) was taken up for immediate consideration, read a first time and then ordered to second
reading.
Chairman Kuhn, from the Committee on Veterans Affairs and Homeland Security, submitted the following report, which was received:
Your Committee on Veterans Affairs and Homeland Security has had under consideration:
S. B. 410, Providing educational opportunities to certain children of deceased military;
removing in-state requirement,
And reports the same back, by unanimous vote of the Committee, with amendment, with the
recommendation that it do pass, as amended, but that it first be referred to the Committee on
Finance.
At the respective requests of Delegate Varner, and by unanimous consent, the bill (S. B. 410)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on Finance.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
H. B. 4000, Budget Bill, making appropriations of public money out of the treasury in
accordance with section fifty-one, article six of the Constitution,
And reports back a committee substitute therefor, with the same title, as follows:
Com. Sub. for H. B. 4000 - "A Bill making appropriations of public money out of the
treasury in accordance with section fifty-one, article VI of the constitution,"
With the recommendation that the committee substitute do pass.
At the respective requests of Delegate Varner, and by unanimous consent, the bill (Com. Sub.
for H. B. 4000) was taken up for immediate consideration, read a first time and then ordered to
second reading.
On motion for leave, a bill was introduced (Originating in the Committee on Government
Organization and reported with the recommendation that it do pass), which was read by its title, as follows:
By Delegates Beane, Ennis, Iaquinta, Perdue, Yeager, Frich and Walters:
H. B. 4766 - "A Bill to amend and reenact §9-7-1 and §9-7-2 of the code of West Virginia,
1931, as amended; to amend and reenact §16-5P-3 and §16-5P-6 of said code; and to amend said
code by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3, §16-5U-4, §16-5U-
5, §16-5U-6, §16-5U-7 and §16-5U-8, all relating to the oversight of senior centers; providing that
the medicaid fraud unit of the department of health and human resources may investigate; requiring
the commissioner of the bureau of senior services to report violations to the governor; authorizing
secretary of the department of health and human resources to investigate and audit senior centers;
establishing that senior centers are subject to governmental ethics act, open governmental meetings
act and audit requirements; and establishing criminal penalties."
At the respective requests of Delegate Varner, and by unanimous consent, the bill (H. B.
4766) was taken up for immediate consideration, read a first time and then ordered to second
reading.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 22, Requiring participation in motor vehicle alcohol test and lock
program for repeat offenders,
Com. Sub. for S. B. 28, Exempting certain personal property from levy, forced sale,
attachment or execution,
Com. Sub. for S. B. 31, Providing person not guilty of trespassing for hunting with dogs on
lands of another,
Com. Sub. for S. B. 50, Relating to waste tire remediation; liability,
Com. Sub. for S. B. 71, Relating to verifying legal employment status of workers employed
in state,
Com. Sub. for S. B. 89, Relating to beneficial use of water treatment plant sludge,
Com. Sub. for S. B. 119, Enhancing criminal penalties for obtaining money, property and
services by false pretenses from persons over certain age,
Com. Sub. for S. B. 315, Creating mental hygiene pilot program in certain counties or
circuits,
S. B. 317, Increasing parolee supervision fee,
S. B. 402, Relating to authority of board of risk and insurance management to promulgate
certain legislative rules,
S. B. 428, Defining "transacting insurance",
Com. Sub. for S. B. 447, Relating to powers and duties of municipal courts to collect certain
moneys,
S. B. 510, Relating to commission on uniform state laws,
S. B. 529, Repealing section of code relating to working prisoners by county courts,
S. B. 532, Repealing section of code relating to inspection of jails,
Com. Sub. for S. B. 554, Continuing guardianship or conservatorship of deceased protected
persons,
S. B. 569, Clarifying and preserving irrevocability of certain trusts,
S. B. 573, Providing procedure for economic development authority to address problems of
state minorities,
S. B. 579, Relating to sex offender registration,
Com. Sub. for S. B. 629, Creating Small Estate Probate Relief Act of 2004,
S. B. 663, Prohibiting certain long-term care and assisted living facilities from soliciting
residents for money or assets,
S. B. 688, Relating to wages election official can receive and not be considered for
unemployment compensation,
And,
S. B. 731, Relating to promulgation of rules by department of administration for compliance
standards for state leased property,
And reports the same back without recommendation as to their passage.
At the respective requests of Delegate Varner, and by unanimous consent, the bills (Com.
Sub. for S. B. 22, Com. Sub. for S. B. 28, Com. Sub. for S. B. 31, Com. Sub. for S. B. 50, Com. Sub.
for S. B. 71, Com. Sub. for S. B. 89, Com. Sub. for S. B. 119, Com. Sub. for S. B. 315, S. B. 317,
S. B. 402, S. B. 428, Com. Sub. for S. B. 447, S. B. 510, S. B. 529, S. B. 532, Com. Sub. for S. B.
554, S. B. 569, S. B 573, S. B. 579, Com. Sub. for S. B.
629, S. B. 663, S. B. 688 and S. B. 731)
were taken up for immediate consideration, read a first time, ordered to second reading and then
recommitted to the Committee on the Judiciary.
Chairman Michael, from the Committee on Finance, submitted the following report, which
was received:
Your Committee on Finance has had under consideration:
S. B. 148, Creating Tax Amnesty Program of 2004,
And,
Com. Sub. for S. B. 139, Creating Tourism Development Act,
And reports the same back, with amendment, with the recommendation that they each do
pass, as amended.
Chairman Spencer, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:
Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 11th
day of March, 2004, presented to His Excellency, the Governor, for his action, the following bills,
signed by the President of the Senate and the Speaker of the House of Delegates:
(Com. Sub. for S. B. 52), Allowing motorcycle registration plates to be fastened in vertical
position.
(S. B. 268), Continuing division of motor vehicles.
(S. B. 269), Continuing division of purchasing within department of administration.
(S. B. 324), Continuing division of personnel.
(Com. Sub. for S. B. 500), Relating to fees for agents selling hunting and fishing licenses.
(H. B. 4108), Authorizing sun screening devices that exceed statutory limits to be used in
law-enforcement K-9 and other emergency vehicles that haul animals,
And,
(Com. Sub. for H. B. 4273), Changing the authority to appoint guardians of minors from the
county commission to the family court.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 566, Establishing Unborn Victims of Violence Act,
And reports the same back without recommendation as to its passage.
At the respective requests of Delegate Varner, and by unanimous consent, the bill was taken
up for immediate consideration, read a second time, and then, at the further request of the same
Gentleman, and by unanimous consent, the bill was ordered to third reading and the rule was suspended to permit the offering and consideration of amendments on that reading.
Subsequently,
At the further request of Delegate Varner, and by unanimous consent, the bill (S. B. 566) was
then recommitted to the Committee on the Judiciary.
Messages from the Senate
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4104, Creating the felony crime of scanning device or reencoder fraud.
On motion of Delegate Varner, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-56. Scanning device or reencoder fraud; felony; definitions; and penalties.
(a) As used in this section, the term:
(1) 'Authorized user' means the person to whom a payment card is issued or any other person
acting with the permission of the person to whom the card is issued;
(2) 'Merchant' means an owner or operator of any retail mercantile establishment or any
agent, employee, lessee, consignee, officer, director, franchisee or independent contractor of the
owner or operator. A 'merchant' also means a person who receives from an authorized user of a
payment card, or someone the person believes to be an authorized user, a payment card or
information from a payment card, or what the person believes to be a payment card or information from a payment card, as the instrument for obtaining, purchasing or receiving goods, services, money
or anything else of value from the person;
(3) 'Payment card' means a credit card, charge card, debit card, hotel key card, stored value
card or any other card that is issued to an authorized card user and that allows the user to obtain,
purchase or receive goods, services, money or anything else of value from a merchant;
(4) 'Reencoder' means an electronic device that places encoded information from the
magnetic strip or stripe of a payment card onto the magnetic strip or stripe of a different payment
card; and
(5) 'Scanning device' means a scanner, reader or any other electronic device that is used to
access, read, scan, obtain, memorize or store, temporarily or permanently, information encoded on
the magnetic strip or stripe of a payment card;
(b) Any person who uses a scanning device to access, read, obtain, memorize or store,
temporarily or permanently, information encoded on the magnetic strip or stripe of a payment card
without the permission of the authorized user of the payment card and with the intent to defraud the
authorized user, the issuer of the authorized user's payment card or a merchant is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than two thousand five hundred
dollars or confined in a county or regional jail for not more than one year, or both.
(c) Any person who uses a reencoder to place information encoded on the magnetic strip or
stripe of a payment card onto the magnetic strip or stripe of a different card without the permission
of the authorized user of the card from which the information is being reencoded and with the intent
to defraud the authorized user, the issuer of the authorized user's payment card or a merchant is
guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two thousand five
hundred dollars or confined in a county or regional jail not more than one year, or both.
(d) Notwithstanding the provisions of subsections (b) and (c) of this section, any person who
is convicted of the provisions of subsection (b) or (c) of this section who has previously been convicted of a violation of either subsection shall be guilty of a felony and, upon conviction, shall
be imprisoned in a state correctional facility for not less than one nor more than three years or fined
not more than five thousand dollars, or both."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4104 - "A Bill to amend the code of West Virginia, 1931, as amended,
by adding thereto a new section, designated §61-3-56, relating to creating the crimes of scanning
device and reencoder fraud; providing definitions; and establishing criminal penalties therefor."
On motion of Delegate Varner, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 514), and there were--yeas
95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Faircloth, Ferrell, Houston and Staton.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4104) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take
effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4193, Authorizing the Department of Environmental Protection to
promulgate legislative rules.
On motion of Delegate Varner, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, by striking out everything after the enacting section and inserting in lieu
thereof the following:
"ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENTAL
PROTECTION TO PROMULGATE LEGISLATIVE RULES.
§64-3-1. Department of environmental protection.
(a) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (Nox budget trading program as a means of
control and reduction of nitrogen oxides from non-electric generating units, 45 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the thirtieth day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (emission standards for hazardous air
pollutants pursuant to 40 CFR Part 61, 45 CSR 15), is authorized.
(c) The legislative rule filed in the state register on the thirtieth day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (standards of performance for new stationary
sources pursuant to 40 CFR Part 60, 45 CSR 16), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management' the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(d) The legislative rule filed in the state register on the twenty-ninth day of July, two
thousand three, authorized under the authority of section four, article five, chapter twenty-two of this
code, relating to the department of environmental protection (to prevent and control air pollution from hazardous waste treatment, storage or disposal facilities, 45 CSR 25), is authorized with the
following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(e) The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (emission standards for hazardous air
pollutants for source categories pursuant to 40 CFR Part 63, 45 CSR 34), is authorized with the
following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(f) The legislative rule filed in the state register on the thirtieth day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (requirements for determining conformity of
transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C.
or the federal transit laws applicable air quality implementation plans (transportation conformity),
45 CSR 36), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(g) The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section four, article three, chapter twenty-two of this code,
modified by the department of environmental protection to meet the objections of the legislative rule-making review committee and refiled in the state register on the sixteenth day of January, two
thousand four, relating to the department of environmental protection (surface mining reclamation,
38 CSR 2), is authorized.
(h) The legislative rule filed in the state register on the first day of August, two thousand
three, authorized under the authority of section five, article fifteen, chapter twenty-two of this code,
modified by the department of environmental protection to meet the objections of the legislative rule-
making review committee and refiled in the state register on the second day of December, two
thousand three, relating to the department of environmental protection (solid waste management, 33
CSR 1), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(i) The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section one, article eighteen, chapter twenty-two of this code,
modified by the department of environmental protection to meet the objections of the legislative rule-
making review committee and refiled in the state register on the second day of December, two
thousand three, relating to the department of environmental protection (hazardous waste
management, 33 CSR 20), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(j) The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section four, article eleven, chapter twenty-two of this code,
modified by the department of environmental protection to meet the objections of the legislative rule-
making review committee and refiled in the state register on the twentieth day of November, two thousand three, relating to the department of environmental protection (West Virginia NPDES rule
for coal mining facilities, 47 CSR 30), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
§64-3-2. Environmental quality board.
The legislative rule filed in the state register on the first day of August, two thousand three,
under the authority of section four, article three, chapter twenty-two-b of this code, relating to the
environmental quality board (requirements governing water quality standards, 46 CSR 1), is not
authorized.
(1) The legislative rule filed in the state register on the twenty-fifth day of June, two thousand
three, authorized under the authority of section four, article three, chapter twenty-two-b of this code,
authorized by the Legislature during the regular session of the Legislature in two thousand three,
relating to the environmental quality board (requirements governing water quality standards, 46 CSR
1), is reauthorized with the following amendments:
On page seven, section 6.2.d., after the words '(requirements for Category A waters.)', by
striking out the words 'The manganese human health criteria shall not apply where the discharge
point of the manganese is located more than five miles upstream from a known drinking water
source.' and inserting the following:
'The manganese human health criterion shall only apply within the five-mile zone
immediately upstream above a known public or private water supply used for human consumption.';
On page ten, section 7.2.a.2., after the words '(to its headwaters.)' by striking out the words
'Until September 1, 2004, the one-half mile zone described in this section shall not apply to the Ohio
River main channel (between Brown's Island and the left descending bank) between river mile points
61.0 and 63.5.' and inserting in lieu thereof the words 'Until September 1, 2010, or until action by the Environmental Quality Board to revise this provision, whichever comes first, the one-half (½)
mile zone described in this section shall not apply to the Ohio River main channel (between Brown's
Island and the left descending bank) between river mile points 61.0 and 63.5 for the Category A
criterion for iron as set forth in §8 herein. Weirton Steel Corporation shall conduct monthly
monitoring of the treated water at its drinking water plant for iron and submit the results of such
monitoring to the West Virginia Bureau for Public Health and the Office of Water Resources of the
West Virginia Department of Environmental Protection. In addition, Weirton Steel Corporation
shall submit a written report regarding the status of its drinking water plant and the issues pertaining
thereto to the Environmental Quality Board on or before March 1, 2007.';
On pages twelve and thirteen, section 7.2.d.16.2. after the words 'the following instream
criteria:' by striking the remainder of 7.2.d.16.2. and inserting in lieu thereof, the following:
'Lead 14 ug/l, Daily Maximum, Temperature 100 degree F (monitored per Footnote 12 of
the permit); Iron 4.0 mg/l, monthly average and 8.0 mg/l Daily Maximum (monitored per Footnote
12 of the permit). Weirton Steel Corporation shall continue to submit to the Office of Water
Resources of the West Virginia Department of Environmental Protection, on an annual basis
summary reports on the water quality of the discharge from Outlet 004 and the efforts made by
Weirton Steel Corporation during the previous year to improve the quality of the discharge. These
exceptions shall be in effect until action by the Environmental Quality Board to revise the exceptions
or until July 1, 2007, whichever comes first.';
On page thirteen, section 7.2.d.19. By adding a new paragraph designated 7.2.d.19.3 to read
as follows:
7.2.d.19.3. Except that in Ward Hollow of Davis Creek, the following site-specific numeric
criterion for chloride shall apply for Category A and Category B1 (chronic aquatic life
protection):310,000 ug/L.;
On page 30, APPENDIX E, TABLE 1, column one, by striking out the words 'The concentration of un-ionized ammonia (NH3) shall not exceed 50 ug/l.; and
On page 30, APPENDIX E, TABLE 1, by striking the all the provisions of 8.2. and on page
31, by renumbering 8.2.1 as 8.2..
(2) In addition to the forgoing amendments to the rule the environmental quality board shall,
in cooperation with the regulated community and the department of environmental protection,
propose for promulgation in accordance with the provisions of article three, chapter twenty-nine-a
of this code, an emergency and legislative rule on or before the first day of October, two thousand
four, to revise the aquatic life aluminum criteria."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4193 - "A Bill to amend and reenact article 3, chapter 64 of the code
of West Virginia, 1931, as amended, all relating generally to the promulgation of administrative rules
by the various executive or administrative agencies and the procedures relating thereto; legislative
mandate or authorization for the promulgation of certain legislative rules by various executive or
administrative agencies of the state; authorizing certain of the agencies to promulgate certain
legislative rules in the form that the rules were filed in the state register; authorizing certain of the
agencies to promulgate certain legislative rules with various modifications presented to and
recommended by the legislative rule-making review committee; authorizing certain of the agencies
to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the
agencies to promulgate certain legislative rules with various modifications presented to and
recommended by the legislative rule-making review committee and as amended by the Legislature;
disapproving certain legislative rules presented to the Legislature for authorization; authorizing the
department of environmental protection to promulgate a legislative rule relating to the Nox budget
trading program as a means of control and reduction of nitrogen oxides from nonelectric generating
units; authorizing the department of environmental protection to promulgate a legislative rule relating to emission standards for hazardous air pollutants pursuant to 40 CFR Part 61; authorizing
the department of environmental protection to promulgate a legislative rule relating to standards of
performance for new stationary sources pursuant to 40 CFR Part 60; authorizing the department of
environmental protection to promulgate a legislative rule relating to the prevention and control of
air pollution from hazardous waste treatment, storage or disposal facilities; authorizing the
department of environmental protection to promulgate a legislative rule relating to emission
standards for hazardous air pollutants for source categories pursuant to 40 CFR Part 63; authorizing
the department of environmental protection to promulgate a legislative rule relating to requirements
for determining conformity of transportation plans, programs and projects developed, funded or
approved under Title 23 U.S.C. or the federal transit laws applicable air quality implementation plans
(transportation conformity); authorizing the department of environmental protection to promulgate
a legislative rule relating to surface mining reclamation; authorizing the department of environmental
protection to promulgate a legislative rule relating to solid waste management; authorizing the
department of environmental protection to promulgate a legislative rule relating to hazardous waste
management; authorizing the department of environmental protection to promulgate a legislative rule
relating to the West Virginia NPDES rule for coal mining facilities; authorizing the environmental
quality board to promulgate a legislative rule relating to requirements governing water quality
standards; and authorizing the environmental quality board to promulgate emergency and legislative
rules on or before the first day of October, two thousand four to revise the aquatic life aluminum
criteria."
On motion of Delegate Varner, the House of Delegates concurred in the Senate amendments
with further amendment, as follows:
On page two, by striking out everything after the enacting section and inserting in lieu thereof
the following:
"ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENTAL PROTECTION TO PROMULGATE LEGISLATIVE RULES.
§64-3-1. Department of environmental protection.
(a) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (Nox budget trading program as a means of
control and reduction of nitrogen oxides from non-electric generating units, 45 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the thirtieth day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (emission standards for hazardous air
pollutants pursuant to 40 CFR Part 61, 45 CSR 15), is authorized.
(c) The legislative rule filed in the state register on the thirtieth day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (standards of performance for new stationary
sources pursuant to 40 CFR Part 60, 45 CSR 16), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management' the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(d) The legislative rule filed in the state register on the twenty-ninth day of July, two
thousand three, authorized under the authority of section four, article five, chapter twenty-two of this
code, relating to the department of environmental protection (to prevent and control air pollution
from hazardous waste treatment, storage or disposal facilities, 45 CSR 25), is authorized with the
following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(e) The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (emission standards for hazardous air
pollutants for source categories pursuant to 40 CFR Part 63, 45 CSR 34), is authorized with the
following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(f) The legislative rule filed in the state register on the thirtieth day of July, two thousand
three, authorized under the authority of section four, article five, chapter twenty-two of this code,
relating to the department of environmental protection (requirements for determining conformity of
transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C.
or the federal transit laws applicable to air quality implementation plans (transportation conformity),
45 CSR 36), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(g) The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section four, article three, chapter twenty-two of this code,
modified by the department of environmental protection to meet the objections of the legislative rule-
making review committee and refiled in the state register on the sixteenth day of January, two
thousand four, relating to the department of environmental protection (surface mining reclamation,
38 CSR 2), is authorized.
(h) The legislative rule filed in the state register on the first day of August, two thousand
three, authorized under the authority of section five, article fifteen, chapter twenty-two of this code, modified by the department of environmental protection to meet the objections of the legislative rule-
making review committee and refiled in the state register on the second day of December, two
thousand three, relating to the department of environmental protection (solid waste management, 33
CSR 1), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(i) The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section one, article eighteen, chapter twenty-two of this code,
modified by the department of environmental protection to meet the objections of the legislative rule-
making review committee and refiled in the state register on the second day of December, two
thousand three, relating to the department of environmental protection (hazardous waste
management, 33 CSR 20), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
(j) The legislative rule filed in the state register on the thirty-first day of July, two thousand
three, authorized under the authority of section four, article eleven, chapter twenty-two of this code,
modified by the department of environmental protection to meet the objections of the legislative rule-
making review committee and refiled in the state register on the twentieth day of November, two
thousand three, relating to the department of environmental protection (West Virginia NPDES rule
for coal mining facilities, 47 CSR 30), is authorized with the following amendment:
Wherever the rule has been amended to insert the term 'Division of Water and Waste
Management', the existing language of the rule prior to the amendment denoting a change in the
name of the agency of reference shall be retained.
§64-3-2. Environmental quality board.
The legislative rule filed in the state register on the first day of August, two thousand three,
under the authority of section four, article three, chapter twenty-two-b of this code, relating to the
environmental quality board (requirements governing water quality standards, 46 CSR 1), is not
authorized.
(1) The legislative rule filed in the state register on the fourteenth day of April, two thousand
three, and effective the twenty-fifth day of June, two thousand three, authorized under the authority
of section four, article three, chapter twenty-two-b of this code, authorized by the Legislature during
the regular session of the Legislature in two thousand three, relating to the environmental quality
board (requirements governing water quality standards, 46 CSR 1), is reauthorized with the
following amendments:
On page seven, section 6.2.d., after the words '(requirements for Category A waters.)', by
striking out the words 'The manganese human health criteria shall not apply where the discharge
point of the manganese is located more than five miles upstream from a known drinking water
source.' and inserting the following:
'The manganese human health criterion shall only apply within the five-mile zone
immediately upstream above a known public or private water supply used for human consumption.';
On page ten, section 7.2.a.2., after the words '(to its headwaters.)' by striking out the words
'Until September 1, 2004, the one-half mile zone described in this section shall not apply to the Ohio
River main channel (between Brown's Island and the left descending bank) between river mile points
61.0 and 63.5.' and inserting in lieu thereof the words 'Until September 1, 2010, or until action by
the Environmental Quality Board to revise this provision, whichever comes first, the one-half (½)
mile zone described in this section shall not apply to the Ohio River main channel (between Brown's
Island and the left descending bank) between river mile points 61.0 and 63.5 for the Category A
criterion for iron as set forth in §8 herein. Weirton Steel Corporation shall conduct monthly monitoring of the treated water at its drinking water plant for iron and submit the results of such
monitoring to the West Virginia Bureau for Public Health and the Office of Water Resources of the
West Virginia Department of Environmental Protection. In addition, Weirton Steel Corporation
shall submit a written report regarding the status of its drinking water plant and the issues pertaining
thereto to the Environmental Quality Board on or before March 1, 2007.';
On pages twelve and thirteen, section 7.2.d.16.2. after the words 'the following instream
criteria:' by striking the remainder of 7.2.d.16.2. and inserting in lieu thereof, the following:
'Lead 14 ug/l, Daily Maximum, Temperature 100 degree F (monitored per Footnote 12 of
the permit); Iron 4.0 mg/l, monthly average and 8.0 mg/l Daily Maximum (monitored per Footnote
12 of the permit). Weirton Steel Corporation shall continue to submit to the Office of Water
Resources of the West Virginia Department of Environmental Protection, on an annual basis
summary reports on the water quality of the discharge from Outlet 004 and the efforts made by
Weirton Steel Corporation during the previous year to improve the quality of the discharge. These
exceptions shall be in effect until action by the Environmental Quality Board to revise the exceptions
or until July 1, 2007, whichever comes first.';
On page thirteen, section 7.2.d.19. By adding a new paragraph designated 7.2.d.19.3 to read
as follows:
7.2.d.19.3. Except that in Ward Hollow of Davis Creek, the following site-specific numeric
criterion for chloride shall apply for Category A and Category B1 (chronic aquatic life
protection):310,000 ug/L.;
On page 30, APPENDIX E, TABLE 1, column one, by striking out the words 'The
concentration of un-ionized ammonia (NH3) shall not exceed 50 ug/l.; and
On page 30, APPENDIX E, TABLE 1, by striking the all the provisions of 8.2. and on page
31, by renumbering 8.2.1 as 8.2..
(2) In addition to the forgoing amendments to the rule the environmental quality board shall, in cooperation with the regulated community and the department of environmental protection,
propose for promulgation in accordance with the provisions of article three, chapter twenty-nine-a
of this code, an emergency and legislative rule on or before the first day of October, two thousand
four, to revise the aquatic life aluminum criteria."
The bill, as amended by the Senate, and as further amended by the House of Delegates, was
then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 515), and there were--yeas
95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Faircloth, Ferrell, Houston and Staton.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4193) passed.
Delegate Varner moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 516), and there were--yeas 95, nays
none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Faircloth, Ferrell, Houston and Staton.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4193) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of
the House of Delegates as follows:
Com. Sub. for H. B. 4649, Providing for greater efforts for instate placement of children in
the custody of the Department of Health and Human Services.
On motion of Delegate Varner, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting clause and inserting in lieu thereof
the following:
"That §49-5D-2, §49-5D-3 and §49-5D-3a of the code of West Virginia, 1931, as amended,
be amended and reenacted, all to read as follows:
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-2. Multidisciplinary investigative teams; establishment; procedures; coordination
between agencies.
(a) The prosecuting attorney shall establish a multidisciplinary investigative team in each
county. The multidisciplinary team shall be headed and directed by the prosecuting attorney and
shall include as permanent members the prosecuting attorney or his or her designee, a local child
protective services caseworker from the department of health and human resources, and a local
law-enforcement officer employed by a law-enforcement agency in the county and, where
appropriate to the particular case under consideration and available, a child advocacy center
representative, and a representative from the licensed domestic violence program serving the county.
The department of health and human resources and any local law-enforcement agency or agencies
selected by the prosecuting attorney shall appoint their representatives to the team by submitting a
written designation of the team to the prosecuting attorney of each county within thirty days of the
prosecutor's request that the appointment be made. Within fifteen days of the appointment, the
prosecuting attorney shall notify the chief judge of each circuit within which the county is situated
of the names of the representatives so appointed. Any other person or any other appointee of an
agency who may contribute to the team's efforts to assist a minor child as may be determined by the
permanent members of the team may also be appointed as a member of the team by the prosecutor
with notification to the chief judge.
(b) Any permanent member of the multidisciplinary investigative team shall refer all cases
of accidental death of any child reported to their agency and all cases when a child dies while in the
custody of the state for investigation and review by the team. The multidisciplinary investigative
team shall meet at regular intervals at least once every calendar month.
(c) The investigative team shall be responsible for coordinating or cooperating in the initial
and ongoing investigation of all civil and criminal allegations pertinent to cases involving child
sexual assault, child sexual abuse, child abuse and neglect, and shall make a recommendation to the
county prosecuting attorney as to the initiation or commencement of a civil petition and/or criminal
prosecution.
(d) State, county and local agencies shall provide the multidisciplinary investigative team
with any information requested in writing by the team as allowable by law or upon receipt of a
certified copy of the circuit court's order directing said agencies to release information in its
possession relating to the child. The team shall assure that all information received and developed
in connection with the provisions of this article remains confidential. For purposes of this section,
the term 'confidential' shall be construed in accordance with the provisions of section one, article
seven of this chapter.
§49-5D-3. Multidisciplinary treatment planning process.
(a)(1) On or before the first day of January, one thousand nine hundred ninety-five, a A
multidisciplinary treatment planning process shall be established within each county of the state,
either separately or in conjunction with a contiguous county by the secretary of the department with
advice and assistance from the prosecutor's advisory council as set forth in section four, article four,
chapter seven of this code.
(2) Treatment teams shall assess, plan and implement a comprehensive, individualized
service plan for children who are victims of abuse or neglect and their families when a judicial
proceeding has been initiated involving the child or children for juveniles and their families involved in status offense or delinquency proceedings when, in a status offense proceeding, the court refers
the juvenile for services pursuant to sections eleven and eleven-a, article five of this chapter and
when, in a delinquency proceeding, the court is considering placing the juvenile in the department's
custody or placing the juvenile out-of-home at the department's expense pursuant to the provisions
of section thirteen of said article. In any such status offense or delinquency case, the juvenile
probation officer shall notify the local office of the department of health and human resources and
the division of juvenile services at least five working days before the court proceeding in order to
allow the multidisciplinary treatment team to convene and develop a comprehensive individualized
service plan for the child: Provided, That such notice is not required in cases where the child is
already in state custody or there exist exigent circumstances which justify taking the child
immediately into custody without a judicial proceeding. In developing an individualized service plan
for a child, the team shall utilize a uniform comprehensive assessment of the child. The department
shall adopt a standard uniform comprehensive assessment instrument or protocol to be used by
treatment teams.
(3) Prior to disposition, in each case in which a treatment planning team has been convened,
the team shall advise the court as to the types of services the team has determined are needed and
the type of placement, if any, which will best serve the needs of the child. If the team determines
that an out-of-home placement will best serve the needs of the child, the team shall first consider
placement at facilities or programs located within the state. The team may only recommend
placement in an out-of-state facility if it concludes, after considering the best interests and overall
needs of the child, that there are no available and suitable in-state facilities which can satisfactorily
meet the specific needs of the child.
(b) Each treatment team shall be convened and directed by the child's or family's case
manager. The treatment team shall consist of the child's custodial parent or parents, guardian or
guardians, other immediate family members, the attorney or attorneys representing the child, the
parent or parents of the child, the child's attorney, the guardian ad litem, if any, the prosecuting attorney or his or her designee and where appropriate to the particular case under consideration and
available, a court-appointed special advocate, an appropriate school official and any other person or
an agency representative who may assist in providing recommendations for the particular needs of
the child and family. The child may participate in multidisciplinary treatment team meetings if such
is deemed appropriate by the multidisciplinary treatment team. For purposes of delinquency
proceedings, the juvenile probation officer shall be a member of the treatment team.
(c) The treatment team shall coordinate its activities and membership with local family
resource networks and coordinate with other local and regional child and family service planning
committees to assure the efficient planning and delivery of child and family services on a local and
regional level.
(d) State, county and local agencies shall provide the multidisciplinary treatment teams with
any information requested in writing by the team as allowable by law or upon receipt of a certified
copy of the circuit court's order directing said agencies to release information in its possession
relating to the child. The team shall assure that all information received and developed in connection
with the provisions of this article remain confidential. For purposes of this section, the term
'confidential' shall be construed in accordance with the provisions of section one, article seven of
this chapter.
§49-5D-3a. Recommendation of team to the court; hearing requirement; required findings.
(a) In any case in which a multidisciplinary treatment team develops an individualized service
plan for a child pursuant to the provisions of section three of this article, the court shall review the
proposed service plan to determine if implementation of the plan is in the child's best interests. If
the multidisciplinary team cannot agree on a plan or if the court determines not to adopt the team's
recommendations, it shall, upon motion or sua sponte, schedule and hold within ten days of such
determination, and prior to the entry of an order placing the child in the custody of the department
or in an out-of-home setting, a hearing to consider evidence from the team as to its rationale for the proposed service plan. If, after a hearing held pursuant to the provisions of this section, the court
does not adopt the teams's recommended service plan, it shall make specific written findings as to
why the team's recommended service plan was not adopted.
(b) In any case in which the court decides to order the child placed in an out-of-state facility
or program it shall set forth in the order directing the placement the reasons why the child was not
placed in an in-state facility or program."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4649 - "A Bill to amend and reenact §49-5D-2, §49-5D-3 and §49-5D-
3a of the code of West Virginia, 1931, as amended, all relating to child welfare; providing for a child
advocacy center participation in multidisciplinary investigative teams; providing for uniform
comprehensive assessments of children; preference to instate placement; including in team, child,
the juvenile's attorney, appropriate school official, court-appointed special advocate when available,
and a representative from the licensed domestic violence program serving the county, when
appropriate and available; requiring team preference of in-state placement; requiring court preference
of instate placement; and requiring that reasons for out-of-state placement be in order."
On motion of Delegate Varner, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 517), and there were--yeas
95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Faircloth, Ferrell, Houston and Staton.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4649) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Miscellaneous Business
Delegate Beane asked and obtained unanimous consent that the remarks of Delegate Trump
regarding the Speaker and the work of the House of Delegates be printed in the Appendix to the
Journal.
At 7:32 p.m., on motion of Delegate Varner, the House of Delegates adjourned until 10:00
a.m., Friday, March 12, 2004.