__________*__________

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.