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Friday, January 23, 2004



The House of Delegates met at 10:00 a.m., and was called to order by the Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Thursday, January 22, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.


Committee Reports


Chairman Mezzatesta, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration:

H. B. 2970, Increasing the ratios of professional and service personnel to students in net enrollment,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:

Com. Sub. for H. B. 2970 - "A Bill to amend and reenact §18-9A-5a and §18-9A-5b of the code of West Virginia, 1931, as amended, all relating to increasing the ratios of professional and service personnel to students in net enrollment and establishing the ratios for certain school years,"

With the recommendation that the committee substitute do pass, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (Com. Sub. for H. B. 2970) was referred to the Committee on Finance.

Chairman Mezzatesta, from the Committee on Education, submitted the following report, which was received:

Your Committee on Education has had under consideration:

H. B. 4037, Providing for safe schools through alternative education programs and providing certain juvenile justice records to public school officials,

And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:

Com. Sub. for H. B. 4037 - "A Bill to amend and reenact §49-5-17 of the code of West Virginia, 1931, as amended, relating to providing certain juvenile justice records to public school officials and limiting disclosure of certain records,"

With the recommendation that the committee substitute do pass, 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 H. B. 4037) to the Committee on Finance was abrogated.

Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for H. B. 4037) will be placed on the Consent Calendar.


Messages from the Executive


Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Board of Examiners for Registered Professional Nurses, in accordance with section four, article seven, chapter thirty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Division of Juvenile Services, in accordance with section thirteen-e, article five, chapter forty-nine of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia State Board of Examiners of Land Surveyors, in accordance with section twelve-b, article one, chapter thirty of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Division of Personnel, in accordance with section seven-b, article six, chapter twenty-nine of the code; which was filed in the Clerk's Office.

Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Board of Funeral Service Examiners, in accordance with section twelve-b, article one, chapter thirty of the code; which was filed in the Clerk's Office.


Bills Introduced


On motions for leave, bills were introduced, read by their titles, and severally referred as follows:

By Delegate Beane:

H. B. 4112 - "A Bill to amend and reenact §5-22A-4 of the code of West Virginia, 1931, as amended, relating to allowing members of the design-build board to be reimbursed travel and other necessary expenses actually incurred while engaged in attending board meetings"; to the Committee on Government Organization then Finance.

By Delegate Beane:

H. B. 4113 - "A Bill to amend and reenact §30-1-12 of the code of West Virginia, 1931, as amended, relating to requiring state boards of examination and registration provided in chapter thirty of the code to have websites accessible to the public; specifying minimum content; requiring the information services and communications division within the department of administration to assist the boards in developing the websites; requiring the governor to ensure that links to each of the boards websites are accessible through the state's internet home page"; to the Committee on Government Organization then Finance.

By Delegate Stalnaker:

H. B. 4114 - "A Bill to amend and reenact §18B-1-1d of the code of West Virginia, 1931, as amended, relating to raising the allowable earnings limit of higher education personnel who retired under the severance plan and setting forth an external standard to govern this limit"; to the Committee on Pensions and Retirement then Finance.

By Delegates Stalnaker, Mezzatesta and Stemple:

H. B. 4115 - "A Bill to amend and reenact §50-1-14 of the code of West Virginia, 1931, as amended, relating to authorizing civilian process servers employed by a county sheriff to carry deadly weapons"; to the Committee on Political Subdivision then the Judiciary.

By Delegates Williams, Butcher, Iaquinta, Shaver, Mezzatesta, Stemple and Perry:

H. B. 4116 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2-10a; and to further amend said code by adding thereto a new section, designated §18B-10-7c, all relating to providing tuition and fee vouchers for students who sound Taps during a military honors funeral"; to the Committee on Education then Finance.

By Delegates Beane, Webster, R. Thompson, Staton and Varner:

H. B. 4117 - "A Bill to amend and reenact §16-29-1 and §16-29-2 of the code of West Virginia, 1931, as amended, all relating to copies of medical records"; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Beane (By Request), Webster, R. Thompson and Staton:

H. B. 4118 - "A Bill to amend and reenact §7-7-4 of the code of West Virginia, 1931, as amended, relating to increasing circuit clerks' salaries"; to the Committee on Political Subdivisions then Finance.

By Delegates Caputo, Coleman, Morgan, Pethtel, Ellem, Overington and Smirl:

H. B. 4119 - "A Bill to amend and reenact §7-18-1 of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact §8-6-4, all relating to annexation generally; limiting imposition and collection of hotel tax by municipality after annexation under certain circumstances; providing for a phase out of collection and imposition of hotel tax by county commission in certain circumstances; requiring county commission to provide hotel tax information to annexing municipality upon request; requiring municipality considering annexation without an election to provide notice to county commission; and requiring municipality considering annexation without an election to hold a public hearing"; to the Committee on the Judiciary then Finance.

By Delegates Palumbo, Amores, Morgan, Overington and Smirl:

H. B. 4120 - "A Bill to amend the code of West Virginia, 1931, as amended by adding thereto a new section, designated §7-1-3oo; and to amend said code by adding thereto a new chapter, designated §17G-1-1, §17G-1-2, §17G-1-3 and §17G-1-4, all relating to all-terrain vehicles generally; authorizing county commissions to regulate or prohibit operation of all-terrain vehicles in housing developments; prohibiting operation of all-terrain vehicles on certain paved roads and highways; allowing all-terrain vehicles to cross paved roads and highways under certain circumstances; allowing operation of all-terrain vehicles on paved roads and highways for the limited purpose of traveling from one trail to another trail under certain circumstances; authorizing limited operation of all-terrain vehicles on paved roads and highways during declared state of emergency; authorizing the division of natural resources to regulate operation of all-terrain vehicles on property within its jurisdiction through legislative rule; authorizing the Hatfield-McCoy recreation area authority to regulate operation of all-terrain vehicles on property within its jurisdiction by legislative rule; authorizing the state rail authority to regulate operation of all-terrain vehicles on property within it jurisdiction by legislative rule; authorizing the governing body of any nonprofit or not-for-profit entity with property used for public recreational purposes to regulate operation on property within its control; authorizing the governing body of any municipality or county commission to regulate operation of all-terrain vehicles on property used for recreational purposes on property owned or operated by the municipality or the county; prohibiting passengers unless the all-terrain vehicle is manufactured for passenger use; requiring use of lights on all-terrain vehicles from sunset to sunrise; requiring certain safety equipment; prohibiting use of an all-terrain vehicle in a careless or reckless manner; authorizing law-enforcement officers to enter private lands in pursuit of all-terrain vehicle operator who has violated the law; allowing local governmental entities to authorize operation of all-terrain vehicles for certain limited purposes; requiring written permission to operate an all-terrain vehicle on the land of another person; requiring all-terrain vehicle rental dealers to provide safety equipment to persons under eighteen years of age and offer safety equipment to adults; providing exemption for agricultural and nonrecreational commercial operation of all-terrain vehicles; and providing for criminal penalty of one hundred dollars for violations of this article"; to the Committee on the Judiciary.

By Delegates Palumbo, Amores, Morgan, Ellem, Overington and Smirl:

H. B. 4121 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §17F-1-1, §17F-1-2, §17F-1-3, §17F-1-4 and §17F-1-5, all relating to child safety in regard to all-terrain vehicles; creating the child safety all-terrain vehicle act of 2004; requiring children under the age of eighteen riding or operating an all-terrain vehicle to wear an approved helmet; prohibiting passengers in certain circumstances; prohibiting children under the age of eighteen from riding or operating an all-terrain vehicle after sunset unless accompanied by a parent or guardian; requiring certain safety equipment on all-terrain vehicles; setting speed limits for operation of an all-terrain vehicle by a child under the age of eighteen; prohibiting operation of an all-terrain vehicle in a careless or reckless manner; authorizing law- enforcement officers to enter private lands in pursuit of an all-terrain vehicle when a violation of law has occurred; requiring written permission to operate an all-terrain vehicle on private lands; requiring safety training; establishing safety training requirements and exemptions; requiring all- terrain vehicle rental dealers to provide safety equipment; and establishing criminal penalties"; to the Committee on the Judiciary.

By Delegates Palumbo, Caputo, Coleman, Morgan, Pethtel, Overington and Smirl:

H. B. 4122 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-5F-1, §21-5F-2, §21-5F-3, §21-5F-4 and §21-5F-5, all relating to providing requirements and limitations for mandatory nurse overtime in hospitals; providing legislative findings and purposes; defining terms; providing for certain requirements and limitations for hospital overtime; limiting number of hours worked in a day; providing exceptions to overtime limitations; providing that the division of labor enforce article; providing that this article does not amend other acts; and providing administrative procedures and penalties"; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Schadler and Amores:

H. B. 4123 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §50-1-9b, relating to authorizing the supreme court of appeals to create a panel of senior magistrate court clerks; granting authority to senior magistrate court clerks to fill certain vacancies; authorizing the supreme court of appeals to promulgate rules for senior magistrate court clerks; providing for reasonable compensation to senior clerks; providing for reimbursement of certain expenses incurred by senior clerks"; to the Committee on the Judiciary then Finance.

By Delegates Swartzmiller, Stemple, Ennis and Beach:

H. B. 4124 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-11a, relating to creating the misdemeanor crime of possession of burglarious tools; providing a criminal penalty; and, defining the term 'burglarious tools, implements or devices'"; to the Committee on the Judiciary.

By Delegates Webster, Manuel and Schoen:

H. B. 4125 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §15-2E-1, §15-2E-2, §15-2E-3, §15-2E-4, §15-2E-5, §15-5E-6, §15-2E-7, §15-2E-8, §15-2E-9, §15-2E-10, §15-2E-11, and §15-2E-12, all relating to creating a state police review board to hear complaints against state police personnel; providing procedures and requirements for disposition of complaints; limiting public disclosure of certain information; requiring semiannual reports; and addressing effects of complaint process"; to the Committee on the Judiciary.

By Delegates Webster, Manuel and Schoen:

H. B. 4126 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §17F-1-1, §17F-1-2, §17F-2-1, §17F-2-2, and §17F-2-3, relating to racial profiling data collection; and requiring superintendent of the state police to conduct analysis of traffic stops and provide an annual report"; to the Committee on the Judiciary.


Consent Calendar

Third Reading


Com. Sub. for H. B. 4004, Establishing an insurance fraud unit within the office of the insurance commissioner; on third reading, coming up in regular order, with a committee amendment pending and the further right to amend, was reported by the Clerk.

The Clerk announced that, pursuant to House Rule 70a, Mr. Speaker, Mr. Kiss, and Delegate Staton had requested Com. Sub. for H. B. 4004 be removed from the Consent Calendar and be placed upon the House Calendar.
H. B. 4083, Continuing the veterans' council; 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. 34), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Kuhn, Perdue, Shelton and Swartzmiller.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4083) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bill and request concurrence therein.


First Reading


The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
S. B. 190, Relating to filing fee for certain United States candidates,
Com. Sub. for H. B. 3096, Authorizing cooperation of campus police and rangers employed by the Hatfield-McCoy regional recreation authority with other law-enforcement agencies,
H. B. 4020, Protecting personal information maintained by the state from inappropriate disclosure,
H. B. 4021, Preventing the disclosure of personal information of state employees and officers, and their dependents,
H. B. 4068, Allowing the hunting of coyotes by use of amber colored artificial light with certain restrictions,

And,
Com. Sub. for H. B. 4081, Requiring county school boards to post the position of county superintendent prior to making an appointment.


House Calendar

Unfinished Business


H. R. 3, Amending House Rule 70a, relating to the Consent Calendar and specifying that a bill may not be removed therefrom on third reading; coming up in regular order, as unfinished business, was reported by the Clerk.

The question now being on the adoption of the resolution, Delegate Walters demanded the yeas and nays, which demand was sustained.

The yeas and nays having been ordered, they were taken (Roll No. 35), and there were--yeas 83, nays 11, absent and not voting 6, with the nays and absent and not voting being as follows:

Nays: Armstead, Border, Caruth, Frich, Hrutkay, Louisos, Martin, Schoen, Sumner, Walters and Webb.

Absent And Not Voting: Coleman, Fragale, Kuhn, Perdue, Shelton and Swartzmiller.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 3) adopted.
H. C. R. 2, Renaming the East River Mountain Tunnel the "H. Edward Steele Memorial Tunnel"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 8, Requesting a study on the childhood obesity epidemic in West Virginia in regards to chronic disease, poor nutrition and inadequate exercise ; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 9, Urging the Legislature to set a goal of providing all citizens with comprehensive, quality and affordable health care ; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. C. R. 6, Requesting Congress to provide funding for development of double-stack-compatible rail route; 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.


Third Reading

Com. Sub. for H. B. 2755, Creating a criminal penalty for persons receiving stolen property that was obtained by means other than through the commission of a theft; 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. 36), and there were--yeas 93, nays 1, absent and not voting 6, with the nays and absent and not voting being as follows:

Nays: Webster.

Absent And Not Voting: Coleman, Fragale, Kuhn, Perdue, Shelton and Swartzmiller.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2755) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2801, Requiring the ethics commission to furnish copies of all advisory opinions issued by the commission to the West Virginia Legislature and the supreme court law library ; on third reading, coming up in regular order, with the restricted right to amend, was reported by the Clerk.

On motion of Delegate Armstead, the bill was amended on page three, section three, line twenty-seven, following the word "to", by inserting the words: "the archives and history section of the division of culture and history" and a comma.

Having been engrossed, the bill was then read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 37), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Kuhn, Perdue, Shelton and Swartzmiller.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2801) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4032, Reducing the allowable blood alcohol content for DUI from .10 to .08 of one percent of body weight; on third reading, coming up in regular order, was, on motion of Delegate Staton, laid upon the table.

Com. Sub. for H. B. 4004, Establishing an insurance fraud unit within the office of the insurance commissioner; on third reading, with the right to amend, was reported by the Clerk.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk on page four, striking out everything following the enacting clause 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 §33-22-2a; that said code be amended by adding thereto a new section, designated §33-23-2a; that said code be amended by adding thereto a new section, designated §33- 24-4b; that said code be amended by adding thereto a new section, designated §33-25-6a; that said code be amended by adding thereto a new section, designated §33-25A-24b; that §33-41-1, §33-41-2 and §33-41-3 of said code be amended and reenacted; and that said code be amended by adding thereto twelve new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41- 9, §33-41-10, §33-41-11, §33-41-12, §33-41-13 and §33-41-14, all to read as follows:
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
§33-22-2a. Applicability of insurance fraud prevention act.


Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to farmers' mutual fire insurance companies. ARTICLE 23. FRATERNAL BENEFIT SOCIETIES.
§33-23-2a. Applicability of insurance fraud prevention act
.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to fraternal benefit societies.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-4b. Applicability of insurance fraud prevention act.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to hospital service corporations, medical service corporations, dental service corporations and health service corporations.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6a. Applicability of insurance fraud prevention act
.

Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to health care corporations.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24b. Applicability of insurance fraud prevention act.


Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to health maintenance organizations.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-1
. Short title; legislative findings and purpose.
(a) This article may be cited as the 'West Virginia Insurance Fraud Prevention Act'.

(b) The Legislature finds that the business of insurance involves many transactions that have potential for fraud, abuse and other illegal activities. This article is intended to permit full utilization of the expertise of the commissioner to investigate and discover fraudulent insurance acts more effectively, halt fraudulent insurance acts and assist and receive assistance from state, local and federal law enforcement and regulatory agencies in enforcing laws prohibiting fraudulent insurance acts.
§33-41-2. Definitions.

As used in this article:

(a) 'Benefits' mean money payments, goods, services or any other thing of value.

(b) 'Business of insurance' means the writing of insurance or the reinsuring of risks by an insurer, including acts necessary or incidental to writing insurance or reinsuring risks and the activities of persons who act as or are officers, directors, agents or employees of insurers, or who are other persons authorized to act on their behalf.

(c) 'Claim' means an application or request for payment or benefits provided under an insurance policy.

(d) 'Commissioner' means the commissioner of insurance, the commissioner's designees or the office of the insurance commissioner.

(e) 'Financial loss' includes, but is not limited to, loss of earnings, out-of-pocket and other expenses, repair and replacement costs and claims payments made by any insurer, provider or person.

(f) 'Fraudulent insurance act' means an act or omission committed by a person who, knowingly and with intent to injure, defraud, or deceive any person who commits, or conceals any material information concerning, one or more of the following:

(1) Presenting, causing to be presented or preparing with knowledge or belief that it will be presented to or by an insurer, a reinsurer, broker or its agent, false information as part of, in support of or concerning a fact material to one or more of the following:

(A) An application for the issuance or renewal of an insurance policy or reinsurance contract;

(B) The rating of an insurance policy or reinsurance contract;

(C) A claim for payment or benefit pursuant to an insurance policy or reinsurance contract;

(D) Premiums paid on an insurance policy or reinsurance contract;

(E) Payments made in accordance with the terms of an insurance policy or reinsurance contract;

(F) A document filed with the commissioner or the chief insurance regulatory official of another jurisdiction;

(G) The financial condition of an insurer or reinsurer;

(H) The formation, acquisition, merger, reconsolidation, dissolution or withdrawal from one or more lines of insurance or reinsurance in all or part of this state by an insurer or reinsurer;

(I) The issuance of written evidence of insurance; or

(J) The reinstatement of an insurance policy;

(2) Solicitation or acceptance of new or renewal insurance risks on behalf of an insurer, reinsurer or other person engaged in the business of insurance by a person who knows or should know that the insurer or other person responsible for the risk is insolvent at the time of the transaction;

(3) Removal, concealment, alteration or destruction of the assets or records of an insurer, reinsurer or other person engaged in the business of insurance;

(4) Willful embezzlement, abstracting, purloining or conversion of moneys, funds, premiums, credits or other property of an insurer, reinsurer or person engaged in the business of insurance;

(5) Transaction of the business of insurance in violation of laws requiring a license, certificate of authority or other legal authority for the transaction of the business of insurance;

(6) Soliciting, offering or receiving any remuneration, including any kickback, rebate or bribe, directly or indirectly, with the intent of causing an expenditure of moneys from any person which would not otherwise be payable under an applicable insurance policy; or

(7) Attempting to commit, aiding or abetting in the commission of, or conspiracy to commit the acts or omissions specified in this subsection.

(g) 'Health care provider' means any person, firm or corporation rendering health care services or goods.

(h) 'Insurance' means a contract or arrangement in which one undertakes to:

(1) Pay or indemnify another as to loss from certain contingencies called 'risks,' including through reinsurance;

(2) Pay or grant a specified amount or determinable benefit to another in connection with ascertainable risk contingencies;

(3) Pay an annuity to another; or

(4) Act as surety.

(i) 'Insurer' means a person entering into arrangements or contracts of insurance or reinsurance. Insurer includes, but is not limited to, any domestic or foreign stock company, mutual company, mutual protective association, farmers' mutual fire companies, fraternal benefit society, reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit health care corporation, nonprofit hospital service association, nonprofit dental care corporation, health maintenance organization, captive insurance company, risk retention group or other insurer, regardless of the type of coverage written, benefits provided or guarantees made by each. A person is an insurer regardless of whether the person is acting in violation of laws requiring a certificate of authority or regardless of whether the person denies being an insurer.

(j) 'Insurance representative' means any person, firm or corporation acting on an insurer's behalf, including, but not limited to, any agent, adjuster, officer, director, employee or investigator.

(k) 'NAIC' means the national association of insurance commissioners.

(l) 'Person' means an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, trustees, an unincorporated organization, or any similar business entity or any combination of the foregoing. 'Person' also includes hospital service corporations, medical service corporations and dental service corporations as defined in article twenty-four of this chapter, health care corporations as defined in article twenty-five of this chapter, or a health maintenance organization organized pursuant to article twenty-five-a of this chapter.

(m) 'Policy' means an individual or group policy, group certificate, contract or arrangement of insurance or reinsurance affecting the rights of a resident of this state or bearing a reasonable relation to this state, regardless of whether delivered or issued for delivery in this state.

(n) 'Reinsurance' means a contract, binder of coverage (including placement slip) or arrangement under which an insurer procures insurance for itself in another insurer as to all or part of an insurance risk of the originating insurer.

(o) 'Statement' means any written or oral representation made to any person, insurer or authorized agency. A statement includes, but is not limited to, any oral report or representation; any insurance application, policy, notice or statement; any proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, or other evidence of loss, injury or expense; any bill for services, diagnosis, prescription, hospital or doctor record, X ray, test result or other evidence of treatment, services or expense; and any application, report, actuarial study, rate request or other document submitted or required to be submitted to any authorized agency. A statement also includes any of the above recorded by electronic or other media.

(p) 'Unit' means the insurance fraud unit established pursuant to the provisions of this article acting collectively or by its duly authorized representatives.
§33-41-3. Fraudulent insurance acts, interference and participation of convicted felons prohibited.


(a) A person may not commit a fraudulent insurance act.

(b) A person may not knowingly or intentionally interfere with the enforcement of the provisions of this article or investigations of suspected or actual violations of this article.

(c) (1) A person convicted of a felony involving dishonesty or breach of trust may not participate in the business of insurance.

(2) A person in the business of insurance may not knowingly or intentionally permit a person convicted of a felony involving dishonesty or breach of trust to participate in the business of insurance.
§33-41-4. Fraud warning required.

(a) Claim forms and applications for insurance, regardless of the form of transmission, shall contain the following statement or a substantially similar statement:

'Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or knowingly presents false information in an application for insurance is guilty of a crime and may be subject to fines and confinement in prison.'

(b) The lack of a statement as required in subsection (a) of this section does not constitute a defense in any prosecution for a fraudulent insurance act.

(c) Policies issued by nonadmitted insurers pursuant to article twelve-c of this chapter shall contain a statement disclosing the status of the insurer to do business in the state where the policy is delivered or issued for delivery or the state where coverage is in force. The requirement of this subsection may be satisfied by a disclosure specifically required by section five, article twelve-c of this chapter; section nine, article thirty-two of this chapter; and section eighteen, article thirty-two of this chapter.

(d) The requirements of this section shall not apply to reinsurance claim forms or reinsurance applications.
§33-41-5. Investigative authority of the commissioner and appointment of prosecutors.


(a) The commissioner may investigate suspected fraudulent insurance acts and persons engaged in the business of insurance.

(b) If the commissioner finds that the prosecuting attorney of the county in which the violation occurred is, for some reason, unable or unwilling to take appropriate action, the commissioner may petition the appropriate circuit court for the appointment of a special prosecutor in accordance with the provisions of section eight, article seven, chapter seven of this code. An attorney appointed as a special prosecutor shall have the same authority as a county prosecutor to investigate and prosecute criminal violations of this article. The commissioner may employ attorneys to assist in the prosecution of violations of this article, or to act as special prosecutor if the attorney is appointed to act in accordance with the provisions of section eight, article seven, chapter seven of this code.

(c) Funds allocated for insurance fraud prevention may be dispersed by the commissioner, at his or her discretion, for the purpose of insurance fraud enforcement as identified in this article.

(d) It shall be the duty of the West Virginia state police, municipal police departments and the sheriffs of the counties in West Virginia to assist fraud investigators in making arrests and the duty of the prosecuting attorneys of the several counties to prosecute all violations of this article.

(e) The commissioner is hereby authorized to apply for a temporary or permanent injunction in any appropriate circuit court of this state seeking to enjoin and restrain a person from violating or continuing to violate the provisions of this article or rule promulgated thereunder, notwithstanding the existence of other remedies at law. The circuit court shall have jurisdiction of the proceeding and have the power to make and enter an order or judgment awarding temporary or permanent injunctive relief restraining any person from violating or continuing to violate any provision of this article or rule promulgated thereunder as in its judgment is proper.

(f) The commissioner is hereby authorized to conduct public outreach, education, and awareness programs on the costs of insurance fraud to the public.
§33-41-6. Mandatory reporting of fraudulent insurance acts.
(a) A person engaged in the business of insurance having knowledge or a reasonable belief that a fraudulent insurance act is being, will be or has been committed shall provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.

(b) Any other person having knowledge or a reasonable belief that a fraudulent insurance act is being, will be or has been committed may provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
§33-41-7. Immunity from liability.

(a) There shall be no civil liability imposed on and no cause of action shall arise from a person's furnishing information concerning suspected, anticipated or completed fraudulent insurance acts, if the information is provided to or received from:

(1) The commissioner or the commissioner's employees, agents or representatives;

(2) Federal, state, or local law-enforcement or regulatory officials or their employees, agents or representatives;

(3) A person involved in the prevention and detection of fraudulent insurance acts or that person's agents, employees or representatives; or

(4) The national association of insurance commissioners or its employees, agents or representatives.

(b) Subsection (a) of this section shall not apply to statements made willfully and wantonly or recklessly. In an action brought against a person for filing a report or furnishing other information concerning a fraudulent insurance act, the party bringing the action shall plead specifically any allegation that subsection (a) of this section does not apply because the person filing the report or furnishing the information did so willfully and wantonly or recklessly.

(c) This section does not abrogate or modify common law or statutory privileges or immunities.
§33-41-8. Confidentiality.

(a) Documents, materials or other information in the possession or control of the office of the insurance commissioner that are provided pursuant to section six of this article or obtained by the commissioner in an investigation of suspected or actual fraudulent insurance acts shall be confidential by law and privileged, shall not be subject to article one, chapter twenty-nine-b of the West Virginia code, one thousand nine hundred thirty-one, as amended, are not open to public inspection, shall not be subject to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil action. However, the commissioner is authorized to use the documents, materials or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties. The commissioner is authorized to use the documents, materials or other information if they are required for evidence in criminal proceedings or other action by the state.

(b) Neither the commissioner nor any person who receives documents, materials or other information while acting under the authority of the commissioner may be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (a) of this section.

(c) In order to assist in the performance of the commissioner's duties, the commissioner:

(1) May share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subsection (a) of this section with other state, federal and international regulatory agencies, with the national association of insurance commissioners and its affiliates and subsidiaries, and with local, state, federal and international law- enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material or other information;

(2) May receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the national association of insurance commissioners and its affiliates and subsidiaries, and from regulatory and law-enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information; and

(3) May enter into agreements governing sharing and use of information including the furtherance of any regulatory or legal action brought as part of the recipient's official duties.

(d) No waiver of any applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subsection (c) of this section.

(e) Nothing in this section shall prohibit the commissioner from providing information to or receiving information from any local, state, federal or international law-enforcement authorities, including any prosecuting authority; or from complying with subpoenas or other lawful process in criminal actions; or as may otherwise be provided in this article.
§33-41-9. Creation and purpose of insurance fraud unit.
(a) The West Virginia insurance fraud unit is established within the agency of insurance commissioner. The commissioner shall provide full-time supervisory and investigative personnel to the insurance fraud unit, who shall be qualified by training and experience to perform the duties of their positions. The director of the insurance fraud unit shall be a full-time position and shall be appointed by the commissioner. The commissioner shall provide office space, equipment, supplies, clerical and other staff necessary for the insurance fraud unit to carry out its duties and responsibilities under this article.

(b) The fraud unit may in its discretion:

(1) Initiate independent inquiries and conduct independent investigations when the insurance fraud unit has cause to believe that a fraudulent insurance act may be, is being or has been committed;

(2) Review reports or complaints of alleged fraudulent insurance activities from federal, state and local law-enforcement and regulatory agencies, persons engaged in the business of insurance, and the public to determine whether the reports require further investigation and to conduct these investigations; and

(3) Conduct independent examinations of alleged fraudulent insurance acts and undertake independent studies to determine the extent of fraudulent insurance acts.

(c) The insurance fraud unit shall have the authority to:

(1) Employ and train personnel to achieve the purposes of this article and to employ legal counsel, investigators, auditors and clerical support personnel and other personnel as the commissioner determines necessary from time to time to accomplish the purposes herein;

(2) Inspect, copy or collect records and evidence;

(3) Serve subpoenas;

(4) Share records and evidence with federal, state or local law-enforcement or regulatory agencies, and enter into interagency agreements;

(5) Make criminal referrals to the county prosecuting authorities;

(6) Conduct investigations outside this state. If the information the insurance fraud unit seeks to obtain is located outside this state, the person from whom the information is sought may make the information available to the insurance fraud unit to examine at the place where the information is located. The insurance fraud unit may designate representatives, including officials of the state in which the matter is located, to inspect the information on behalf of the insurance fraud unit, and the insurance fraud unit may respond to similar requests from officials of other states.

(7) The insurance fraud unit, is expressly authorized to initiate investigations and participate in the development of, and if necessary, the prosecution of any health care provider, including a provider of rehabilitation services, alleged to have committed a fraudulent insurance act;

(8) Specific personnel, designated by the commissioner, shall be permitted to operate vehicles owned or leased for the state displaying Class A registration plates;

(9) Notwithstanding any provision of this code to the contrary, specific personnel designated by the commissioner may carry firearms in the course of their official duties after meeting specialized qualifications established by the governor's committee on crime, delinquency and correction, which qualifications shall include the successful completion of handgun training provided to law-enforcement officers by the West Virginia state police: Provided, That nothing in this subsection shall be construed to include the personnel so designated by the commissioner to carry firearms within the meaning of the term law-enforcement official as defined in section one, article twenty-nine, chapter thirty of this code; and

(10) The insurance fraud unit is not subject to any requirement of article nine-a, chapter six of this code and the investigations conducted by the insurance fraud unit and the materials placed in the files of the unit as a result of any such investigation are exempt from public disclosure under the provisions of chapter twenty-nine-b of this code.
§33-41-10. Other law enforcement or regulatory authority.

This article does not:

(a) Preempt the authority or relieve the duty of other law-enforcement or regulatory agencies to investigate, examine and prosecute suspected violations of law;

(b) Prevent or prohibit a person from disclosing voluntarily information concerning insurance fraud to a law-enforcement or regulatory agency other than the insurance fraud unit; or

(c) Limit the powers granted elsewhere by the laws of this state to the commissioner or the insurance fraud unit to investigate and examine possible violations of law and to take appropriate action against wrongdoers.
§33-41-11. Fraudulent claims investigation unit of insurers.

(a) Every insurer admitted to do business in the state shall maintain effective procedures and resources to deter and investigate fraudulent insurance acts prohibited by this article, including a unit that will investigate suspected fraudulent insurance acts. For the purpose of this section, 'insurer' does not include reinsurers or reinsurance as defined in section eleven, article one of this chapter.

(b) Insurers may maintain the unit required by subsection (a) of this section, using its employees or by contracting with others for that purpose.

(c) Insurers shall establish the unit required by this section no later than the first day of July, two thousand five.

(d) The unit may include the assignment of fraud investigation to employees whose principal responsibilities are the investigation and disposition of claims. If an insurer creates a distinct unit, hires additional employees, or contracts with another entity to fulfill the requirements of this article, the additional cost incurred shall be included as an administrative expense.

(e) Insurers shall make personnel involved in investigating insurance fraud and any files relating to insurance fraud investigation available to the commissioner, local prosecuting officials, special prosecuting attorneys, or other law-enforcement agencies as needed in order to further the investigation and prosecution of insurance fraud. Information supplied by an insurer and contained in such files shall upon receipt become part of the investigative file and subject to the provisions of section eight of this article. The insurer and its employees and agents shall be entitled to immunity as provided in section seven of this article.

(f) Any expenses incurred by insurers as a result of this article shall be defrayed by such insurers from their own funds and shall not be borne by the state or by the special insurance fraud fund.
§33-41-12. Rules.

The insurance commissioner may, in accordance with article three, chapter twenty-nine-a of this code, promulgate reasonable rules, including but not limited to legislative rules, the commissioner believe to be necessary or proper to carry out the purposes of this article.
§33-41-13. Civil and criminal penalties.

A person who violates this article is subject to the following:

(a) Suspension or revocation of license or certificate of authority, civil penalties of up to ten thousand dollars per violation, or both. Suspension or revocation of license or certificate of authority and imposition of civil penalties shall be pursuant to an order of the commissioner issued under section thirteen, article two of this chapter. The commissioner's order may require a person found to be in violation of this article to make restitution to persons aggrieved by violations of this article;

(b) (1) If a person commits a fraudulent insurance act of the value of one thousand dollars or more, such person is guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility not less than one nor more than ten years, and shall be fined not more than ten thousand dollars.

(2) If a person commits a fraudulent insurance act of the value of less than one thousand dollars, such person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a correctional facility for a term not to exceed one year or fined not to exceed two thousand five hundred dollars, or both, in the discretion of the court;

(c) A person convicted of a violation of section three of this article shall be ordered to pay restitution to persons aggrieved by the violation of this article. Restitution shall be ordered in addition to a fine or imprisonment, but not in lieu of a fine or imprisonment. The court may, in addition to any other penalty, award the insurance fraud unit the costs of the investigation;

(d) Notwithstanding any other provision of law, a fine imposed under this section is mandatory and not subject to suspension;

(e) Any money or other property that is awarded to the insurance commission or the insurance fraud unit as the result of an investigation, or civil penalties that are imposed by the commissioner, shall be credited to the special revenue fund established in section thirteen, article three of this chapter and the money shall be used to help finance the insurance fraud unit; and

(f) A person convicted of a felony violation of this article pursuant to subsection (b) of this section shall be disqualified from engaging in the business of insurance.
§33-41-14. Violations of article; penalties for misdemeanor.

(a) It is a misdemeanor for any person to violate any of the provisions of this article unless such violation is by this chapter or other law of this state declared to be a felony.

(b) Every person convicted of a misdemeanor for a violation of any of the provisions of this article for which another penalty is not provided shall for a first conviction thereof be punished by a fine of not more than one hundred dollars or by imprisonment for not more than ten days; for a second such conviction within one year thereafter such person shall be punished by a fine of not more than two hundred dollars or by imprisonment for not more than twenty days or by both such fine and imprisonment; upon a third or subsequent conviction such person shall be punished by a fine of not more than five hundred dollars or by imprisonment for not more than six months or both such fine and imprisonment."

Delegate Louisos offered an amendment to the Committee amendment, inserting provisions prohibiting credit scoring for insurance rate making purposes.

Delegate Staton arose to a point of order as to the germaneness of the amendment.

To the point of order the Speaker replied, stating that the fundamental purpose of the bill was to provide for the governance of a fraud unit and the prosecution of fraud, and the Gentleman's amendment related to credit scoring for insurance rate making, and therefore, the fundamental purpose of the amendment was not germane to the fundamental purpose of the bill.

The Committee amendment was then adopted.

Having been engrossed, the bill was then read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 38), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Kuhn, Perdue, Shelton and Swartzmiller.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4004) passed.

An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:

Com. Sub. for H. B. 4004 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §33-22-2a; to amend said code by adding thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section, designated §33- 24-4b; to amend said code by adding thereto a new section, designated §33-25-6a; to amend said code by adding thereto a new section, designated §33-25A-24b; to amend and reenact §33-41-1, §33-41-2 and §33-41-3 of said code; and to amend said code by adding thereto twelve new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33-41-11, §33-41-12, §33-41-13 and §33-41-14, all relating to the prevention of insurance fraud; subjecting farmers' mutual insurance companies, fraternal benefit societies, certain hospital, medical, dental and health services corporations, health care corporations, and health maintenance organizations to insurance fraud provisions; defining terms; establishing an insurance fraud unit within agency of insurance commissioner; authorizing promulgation of rules and requiring filing of annual reports; establishing powers and duties of the unit; outlining investigative powers and procedures; providing confidentiality and immunity of fraud unit operations; prohibiting insurance fraud; establishing criminal penalties and fines; authorizing prosecution for fraudulent acts; authorizing commissioner to petitioner circuit court for appointment of a prosecutor; specifying duties of insurers; authorizing funding by assessment of insurers; establishing the West Virginia insurance fraud prevention act; defining legislative intent and terms; creating misdemeanor and felony offenses for the commission of fraudulent acts; and creating penalties, exceptions and immunities."

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.


Leaves of Absence

At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day were granted Delegates Coleman, Fragale, Kuhn, Perdue, Shelton and Swartzmiller

At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Twelfth Order of Business for the purpose of considering bills on second reading.

S. B. 190, Relating to filing fee for certain United States candidates; having been read a first time in earlier proceedings, was reported by the Clerk.

The Clerk announced that, pursuant to House Rule 70a, Delegate Amores had requested S. B. 190 be removed from the Consent Calendar and be placed upon the House Calendar.
At the request of Delegate Staton, and by unanimous consent, S. B. 190 was taken up for immediate consideration.

Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 39), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:

Absent And Not Voting: Calvert, Coleman, Fragale, Kuhn, Perdue, Shelton and Swartzmiller.

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was read a second time and ordered to third reading .

The bill was then read a third time and put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 40), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Kuhn, Mezzatesta, Perdue, Shelton and Swartzmiller.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 190) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 41), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Fragale, Kuhn, Mezzatesta, Perdue, Shelton and Swartzmiller.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 190) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.


Miscellaneous Business

Delegate Perdue announced that he was absent on Thursday, January 22, 2004 when the votes were taken on Roll Nos. 31 through 33, and that had he been present, he would have voted "Yea" thereon; and that he was absent on today when the votes were taken on Roll Nos. 34 through 41, and that had he been present, he would have voted "Yea" thereon.

At 11:15 a.m., on motion of Delegate Staton, the House of Delegates adjourned until 1:00 p.m., Monday, January 26, 2004.