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Friday, January 20, 2006



The House of Delegates met at 10:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Thursday, January 19, 2006, 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 bill was introduced (Originating in the Committee on Government Organization and reported, by unanimous vote of the committee, with the recommendation that it do pass), which was read by its title, as follows:
By Delegates Beane, Ennis, Miley, Iaquinta, Frich, Argento and Rowan:

H. B. 4069 - "A Bill to amend and reenact §18B-16-6b of the Code of West Virginia, 1931, as amended, relating to continuation of the Rural Health Advisory Panel."
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (H. B. 4069) will be placed on 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:
H. B. 2146, Relating to payment to magistrates who serve temporarily outside their elected counties,
And reports the same back, with amendment, by unanimous vote of the Committee, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on Finance.
In accordance with the former direction of the Speaker, the bill (H. B. 2146) was referred to the Committee on Finance.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
H. B. 2329, Authorizing a court to order a defendant to contribute monetarily or through hours of service to a local crime victim's assistance program,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (H. B. 2329) will be placed on 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:
H. B. 2448, Relating to criminal offenses involving the theft of mail matter,
And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:
Com. Sub. for H. B. 2448 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-3-59, relating to criminal offenses involving the theft of mail matter,"
H. B. 3212, Creating the felony offense of intimidation of and retaliation against informants who provide information to law enforcement officers, and establishing related criminal penalties,
And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:
Com. Sub. for H. B. 3212 - "A Bill to amend and reenact §61-5-27 of the Code of West Virginia, 1931, as amended, relating to the crimes of intimidation or retaliation against informants; establishing a misdemeanor offense for first offense intimidation of an informant; establishing felony for second and subsequent offense of intimidation of an informant; establishing the felony offense of retaliation against an informant; defining 'informant' for the purposes of these offenses; establishing related criminal penalties,"
And,
H. B. 3213, Creating the offenses of malicious assault, unlawful assault, battery and recidivism of battery, assault on a driver, conductor, captain or other person in charge of any vehicle used for public conveyance,
And reports back a committee substitute therefor, by unanimous vote of the Committee, with a new title, as follows:
Com. Sub. for H. B. 3213 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-2-16a, relating to creating crimes against common carriers and providing penalties,"
With the recommendation that the committee substitutes each do pass.
Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration:
H. B. 4021, Relating to a pilot program authorizing participating health care clinics and private medical practitioners to provide primary and preventive health services for a prepaid fee,
And reports back a committee substitute therefor, with a new title, as follows:
Com. Sub. for H. B. 4021 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-16-6a; to amend by adding thereto a new article, designated §16-5U-1, §16-5U-2, §16-5U-3, §16-5U-4, §16-5U-5, §16-5U-6, §16-5U-7, and §16-5U-8; to amend said code by adding thereto a new article, designated §16-5V-1, §16-5V-2, §16-5V-3, §16-5V-4, §16-5V-5, §16-5V-6, §16-5V-7, §16-5V-8, §16-5V-9 and §16-5V-10;; to amend said code by adding thereto a new article, designated §16-29G-1, §16-29G-2, §16-29G-3, §16-29G-4, §16-29G-5, §16-29G-6 and §16-29G-7; and to amend said code by adding thereto a new article, designated §33-15D-1, §33-15D-2, §33-15D-3, §33-15D-4, §33-15D-5, §33-15D-6, §33- 15D-7, §33-15D-8, §33-15D-9 and §33-15D-10, all relating to health care availability and access by requiring the finance board of the Public Employee Insurance Agency to analyze the value of transferring retirees to a Medicare Advantage Plan from both the benefits and cost saving perspective; identifying findings by the Legislature, establishing guidelines for health care reform, establishing goals for health care reform, establishing a process for attaining health care goals, establishing a schedule and benchmarks for attaining health care goals including establishing a pilot program for participating health care clinics and private medical practitioners to provide primary and preventive health services for a prepaid fee; establishing dates for providing primary and preventive care to all citizens of the state; establishing a basic health care package for all citizens of the state after certain benchmarks are reached; establishing goals and creating a commission on health care reform, defining its membership, establishing responsibilities, creating the authority to hire necessary staff, creating the Appalachian State Health Plan to provide health care coverage to the citizens of the state, establishing an advisory committee to work with the Health Care Authority and establishing specific requirements; establishing the West Virginia Health Information Network by establishing its purpose, establishing the members of the network, its powers and duties, an account to receive funds and disperse funds, protection from liability, property rights, rules, resolution of disputes, privacy and protection of information; establishing individual limited health benefits insurance plans focusing on preventive and primary care services; declaring legislative intent; requiring approval of plans by Insurance Commissioner; providing eligibility requirements for individuals; setting forth statutory or regulatory provisions that do not apply to such plans; providing underwriting standards; establishing criteria for filing and approval of premium rates; requiring certification of creditable coverage; authorizing Insurance Commissioner to promulgate emergency rules; mandating disclaimer on policies; exempting plans from premium taxes; providing for severability; and providing rule of construction
,"
With the recommendation that the committee substitute do pass.

Messages from the Executive

Mr. Speaker, Mr. Kiss, presented the 2005 annual report of the Division of Juvenile Services, in accordance with the provisions of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the 2005 annual report of the Board of Funeral Service Examiners, in accordance with section twelve-b, article one, chapter thirty of the code; which was filed in the Clerk's Office.
Bills Introduced

On motions for leave, bills were introduced, read by their titles, and severally referred as follows:
By Delegates DeLong, Amores, Mahan, Morgan, Pethtel, Pino, Azinger, Hamilton and Schadler:

H. B. 4057
- "A Bill to amend and reenact §20-1A-3 of the Code of West Virginia, 1931, as amended, relating to granting the public land corporation the authority to condemn certain abandoned structures in the waters of the State causing or contributing to flooding or erosion; requiring owner to remove certain abandoned structures; authorizing repayment to public land corporation for certain costs incurred; authorizing citations for violations of right of entry; and establishing civil penalties"; to the Committee on the Judiciary.
By Delegates DeLong, Amores, Mahan, Morgan, Pethtel, Pino, Azinger, Hamilton and Schadler:

H. B. 4058 - "A Bill to amend and reenact §21-9-4 and §21-9-12 of the Code of West Virginia, 1931, as amended, and to amend and reenact §24-2-2 of said code, all relating to requiring manufactured housing, fuel oil and propane tanks and other items to be properly secured when in flood plain; requiring certificate or installation approval from flood plain manager prior to installation; providing for penalties; providing that utility service may not be provided to a building or manufactured home under certain conditions; and requiring building or property owner provide utility companies with certificate or installation approval before service to home may be provided"; to the Committee on the Judiciary.

By Delegates DeLong, Amores, Mahan, Morgan, Pethtel, Pino, Azinger, Hamilton and Schadler:

H. B. 4059 - "A Bill to amend and reenact §7-1-3u of the Code of West Virginia, 1931, as amended, and to amend and reenact §19-21A-4 of said code, all relating to flood plain management and flood debris generally; requiring flood plain management plans to prohibit or regulate placement of manufactured housing and storage of materials which may become flood debris or present additional flood hazards; requiring local governments establish penalties for violations of flood plain management plans; and authorizing the conservation agency to remove debris and other impediments during flood emergencies"; to the Committee on the Judiciary.
By Delegates DeLong, Amores, Mahan, Morgan, Pethtel, Pino, Azinger and Schadler:

H. B. 4060
- "A Bill to amend of the Code of West Virginia,1931, as amended, by adding thereto a new article, designated §29A-8-1, §29A-8-2, §29A-8-3, §29A-8-4, §29A-8-5, §29A-8-6, §29A-8-7, §29A-8-8, §29A-8-9, §29A-8-10 and §29A-8-11, all relating to the creation of an office of administrative hearings in the executive branch of state government; specifying applicability and exceptions; defining terms; specifying the qualifications of chief administrative law judge; nominating persons for chief administrative law judge; filling vacancies; establishing an administrative law commission; making appointments to the administrative law commission; specifying terms of the commissioners; filling vacancies on the commission; compensating commissioners; requiring the cooperation of state agencies with the commission; providing for the confidentiality of information and records furnished to the commission; submitting list of names of persons qualified for chief judge to the governor; requiring the advice and consent of the Senate for the appointment of chief judge; requiring the commission to assist the chief judge in carrying out his or her duties; providing for a system of compensation for adjudicators to be established by the chief judge and the administrative law commission; providing that promotions be based on ability and performance; providing that all adjudicators be part of the classified service; providing for discipline of adjudicators; establishing a complaint resolution board; transferring adjudicatory functions of personnel, equipment and funds of affected state agencies to the office of administrative hearings; providing that all orders, determinations, rules, regulations, certificates, licenses and privileges in effect prior to this article becoming effective shall remain in effect; establishing an evaluation system for adjudicators; establishing qualifications for adjudicators and providing exceptions; establishing the power and duties of the chief administrative law judge; setting forth the nature and type of proceedings over which adjudicators may preside; providing for the use of contract adjudicators; establishing the powers of adjudicators relating to conducting hearings; providing that decisions of adjudicators are final; providing for the continued policymaking authority of agencies; providing for remand of cases which require creation of policy rather than application of policy; providing for appeal of decisions to circuit court; providing that this article is inapplicable to adjudications commenced prior to the effective date of the article; and providing for the repeal of acts or parts of acts which are inconsistent with this article"; to the Committee on the Judiciary.
By Delegate Michael:
H. B. 4061
- "A Bill to amend and reenact §35-1-1, §35-1-4, §35-1-7 and §35-1-8 of the Code of West Virginia, 1931, all relating to lands held by any individual church, parish, congregation or branch of any religious sect, society or denomination within this state; removing acreage limitations; providing procedures for limiting and assessing tax-exempt status"; to the Committee on the Judiciary then Finance.
By Delegate Perry:
H. B. 4062
- "A Bill to amend and reenact §18-5-4 and §18-5-5 of the Code of West Virginia, 1931, as amended, all relating to county boards of education generally; providing for disclosure of personal and pecuniary interests and excusal from voting; prohibiting individual board members from acting on behalf of the board in an individual capacity unless authorized by statute; and penalty for violations"; to the Committee on Education then the Judiciary.
By Delegates Ron Thompson, H. White and Perry:
H. B. 4063
- "A Bill to amend and reenact §31A-4-2 of the Code of West Virginia, 1931, as amended, relating to banks; authorizing use of certain banking terms in connection with the name of a business; authorizing Commissioner of Banking to conduct investigations and initiate enforcement actions relating to unauthorized use of certain banking terms likely to result in confusion to the public"; to the Committee on Banking and Insurance then the Judiciary.
By Delegate Perry:
H. B. 4064 - "A Bill to amend and reenact §18A-2-7 of the Code of West Virginia, 1931, as amended, relating to the definition of a transfer for classroom teachers"; to the Committee on Education then Finance.
By Delegates Perry, Pino, Stemple and Roberts:
H. B. 4065
- "A Bill to amend and reenact §62-12-23 of the Code of West Virginia, 1931, as amended, relating to notification of parole hearings; victim's right to be heard; and adding to the crimes committed by an offender for which the preparation of a parole hearing notification form and notification of release on parole is required"; to the Committee on the Judiciary.
By Delegates Perry, Pino, Stemple and Roberts:
H. B. 4066
- "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §25-1-4, relating to limitation on reimbursement rate to medical service providers for services outside Division of Corrections facilities"; to the Committee on Finance.
By Delegates Frich, Tansill and Hamilton:
H. B. 4067
- "A Bill to amend and reenact §15-12-5 of the Code of West Virginia, 1931, as amended, relating to publication of the address of registered sex offenders; and requiring the State Police to provide the specific address of a convicted registered sex offender to the public"; to the Committee on the Judiciary.
By Delegates Perry, Pino, Stemple and Roberts:
H. B. 4068
- "A Bill to amend and reenact §62-12-10 of the Code of West Virginia, 1931, as amended, relating to limiting the eligibility of a person for parole if the person has violated the terms and conditions of probation or home incarceration"; to the Committee on the Judiciary.
Consent Calendar

Second Reading

Com. Sub. for H. B. 2945, Relating to solicitation of water samples by persons or private entities and providing information identifying the name of the company making the solicitation; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
House Calendar

Unfinished Business

The following resolutions coming up in regular order, as unfinished business, were each reported by the Clerk and adopted:
H. R. 3, Authorizing the Committee on Rules to arrange a Special Calendar and providing for making public the vote on certain questions in connection with the preparation thereof,
And,
H. R. 4, Authorizing printing and distribution of Acts of the Legislature and Journals of the House of Delegates.
Third Reading

H. B. 4049, Relating to state funded student financial aid; on third reading, coming up in regular order, was reported by the Clerk.
Delegate Campbell asked and obtained unanimous consent that the rule be suspended to permit him to offer an amendment to the bill on third reading.
On motion of Delegates Campbell and Williams, the bill was amended on page fifteen, section one, line two hundred twenty-six, following the words "fee rates for", by striking out the remainder of the sentence, and inserting in lieu thereof the words "undergraduate resident students receiving a PROMISE scholarship."
And,
On page fifteen, section one, line two hundred thirty, by striking out the word "increase" and inserting in lieu thereof the word "increases".
Delegate Lane also asked and obtained unanimous consent that the rule be suspended to permit him to offer two amendments to the bill on third reading.
Delegate Lane moved to amend the bill on page fifty-four, section six, line fifty, after the word "fund" by changing the semicolon to a colon and inserting the following:
"Provided, That, notwithstanding any provision of this article to the contrary, the applicant shall only be required to achieve the less stringent of either
(i) the objective standards required to meet the eligibility requirements to receive a PROMISE scholarship award pursuant to this article which were in effect four years prior to the filing of the application, which may have been established either by the board pursuant to the reenactment of provisions of this article by the acts of the Legislature in the 2006 regular session, or which may have been established pursuant to prior enactments of provisions of this article; or
(ii) the objective standards established by the board in effect at the time of the filing of the application;"
On the adoption of the amendment, Delegate Lane demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 20), and there were--yeas 34, nays 52, absent and not voting 14, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, DeLong, Duke, Eldridge, Ellem, Evans, Frich, Hall, Hamilton, Howard, Lane, Louisos, Moore, Overington, Porter, Roberts, Romine, Rowan, Schoen, Sobonya, Stephens, Stevens, Sumner, Tansill, Thompson, Rick, Trump, Walters and Yost.
Absent And Not Voting: Armstead, Butcher, Ennis, Ferrell, Houston, Leach, Leggett, Palumbo, Schadler, Swartzmiller, Varner, Wakim, Webster and White, Gil.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.
Delegate Lane then moved to amend the bill on page fifty-one, section five, following line fifty-seven, by inserting a new subsection (b), to read as follows:
"(b) On the first day of June, two thousand six, and on the fifteenth day of January of each year thereafter, the board shall submit to the Legislature an estimate of the total amount of funds necessary to fully fund PROMISE scholarship awards to be awarded and funded in the subsequent fiscal year."
And,
By relettering the remaining subsection.
And,
On page sixty-four, section seven, line twenty-six, following the word "equal", by striking out the remainder of the section and inserting in lieu thereof the following:
"but not be less than the estimate of the amount necessary to fully fund the PROMISE scholarship awards according to the estimate provided from the board to the Legislature pursuant to subsection (b), section five of this article."
On the adoption of the amendment, Delegate Lane demanded the yeas and nays, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 21), and there were--yeas 31, nays 58, absent and not voting 11, with the yeas and absent and not voting being as follows:
Yeas: Anderson, Ashley, Azinger, Blair, Border, Canterbury, Carmichael, Duke, Ellem, Evans, Frich, Hall, Hamilton, Howard, Lane, Leggett, Louisos, Overington, Porter, Roberts, Romine, Rowan, Schoen, Sobonya, Stephens, Stevens, Sumner, Tansill, Trump, Walters and White, Gil.
Absent And Not Voting: Armstead, Butcher, Ennis, Ferrell, Leach, Palumbo, Schadler, Swartzmiller, Varner, Wakim and Webster.
So, a majority of the members present and voting not having voted in the affirmative, the amendment was not adopted.
Having been engrossed, the bill was then read a third time.

Delegates Craig and Ashley requested a ruling concerning being excused from voting under the provisions of House Rule 49.
The Speaker replied that, following discussions with the Clerk, it was his opinion that the bill before the House affected all Members having children as a class of persons rather than in a direct or certain pecuniary manner. He further stated that it was his opinion and that of the Clerk that all members would be required to vote on the bill.
The Clerk announced that the following pairs had been filed with him in accordance with House Rule 43:
For: Wakim
Against: Porter

For: Palumbo
Against: Doyle

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 22), and there were--yeas 70, nays 17, paired 4, absent and not voting 9, with the nays, paired and absent and not voting and paired being as follows:
Nays: Ashley, Blair, Boggs, Border, Cann, Carmichael, Ellem, Frederick, Frich, Howard, Lane, Long, Schoen, Sobonya, Thompson, Rick, Tucker and Walters.
Paired:
For: Wakim
Against: Porter

For: Palumbo
Against: Doyle

Absent And Not Voting: Armstead, Butcher, Ennis, Ferrell, Leach, Schadler, Swartzmiller, Varner and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4049) passed.
On motion of Delegates Campbell and Williams the title of the bill was amended to read as follows:
H. B. 4049 - "A Bill to repeal §18B-14-9 of the Code of West Virginia, 1931, as amended; to repeal §18C-7-9 of said code; to repeal §18C-8-1, §18C-8-2 and §18C-8-3 of said code; to amend and reenact §18B-10-1 of said code; to amend and reenact §18C-1-1, §18C-1-3 and §18C-1-4 of said code; to amend said code by adding thereto a new section, designated §18C-1-5; to amend and reenact §18C-5-1, §18C-5-2, §18C-5-3, §18C-5-4, §18C-5-5 and §18C-5-6 of said code; and to amend and reenact §18C-7-2, §18C-7-3, §18C-7-4 §18C-7-5, §18C-7-6 and §18C-7-7 of said code, all relating to student financial aid programs; need-based and merit-based student financial aid programs; PROMISE scholarship program; Higher Education Grant Program; abolishing the PROMISE Scholarship Board of Control; creating the Higher Education Student Financial Aid Coordinating Board; membership of said Coordinating Board; authorizing member expense reimbursement; powers, duties and responsibilities of said Coordinating Board; transferring powers, duties and responsibilities of said PROMISE Scholarship Board to said Coordinating Board; expanding certain legislative findings; establishing certain legislative intent; requiring coordination and consultation among entities for student financial aid administration; creating the 'higher education grand fund' special revenue fund; establishing legislative intent regarding increased legislative appropriation levels to the higher education grant fund and the PROMISE scholarship fund; expanding eligibility for PROMISE scholarship awards to certain students attending high school outside the state; modifying PROMISE scholarship eligibility requirements; limiting tuition and fee increase levels for certain students; modifying the calculation for determining student financial aid award levels for certain higher education grant recipients; defining terms and clarifying the definitions of certain terms; requiring promulgation of legislative rule and emergency rule; making technical corrections; and repealing obsolete provisions."
Delegate Staton moved that the bill take effect July 1, 2006.
On this question, the yeas and nays were taken (Roll No. 23), and there were--yeas 81, nays 6, paired 4, absent and not voting 9, with the nays, paired and absent and not voting being as follows:
Nays: Blair, Carmichael, Howard, Schoen, Sobonya and Walters.
Paired:
For: Wakim
Against: Porter

For: Palumbo
Against: Doyle

Absent And Not Voting: Armstead, Butcher, Ennis, Ferrell, Leach, Schadler, Swartzmiller, Varner and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4049) takes effect July 1, 2006.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Second Reading

H. B. 4019, Relating to the preparation and distribution of a digest or summary of the budget bill; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
Leaves of Absence

At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day were granted Delegates Armstead, Butcher, Ennis, Ferrell, Leach, Palumbo, Schadler, Swartzmiller, Varner, Wakim and Webster.
Miscellaneous Business

Delegate Stevens asked and obtained unanimous consent that the remarks of all members regarding H. B. 4049 be printed in the Appendix to the Journal.
At 11:04 a.m., the House of Delegates adjourned until 1:00 p.m., Monday, January 23, 2006.