sdj-57th day

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-NINTH LEGISLATURE
REGULAR SESSION, 2009
FIFTY-SEVENTH DAY
____________

Charleston, W. Va., Wednesday, April 8, 2009

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by Donnie Chapman, Dunbar Church of Christ, Dunbar, West Virginia. The cast of the Kanawha Players' production of The Adventures of Tom Sawyer then proceeded in the singing of a medley of show tunes.
Pending the reading of the Journal of Tuesday, April 7, 2009,
On motion of Senator Oliverio, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the fourth order of business.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Concurrent Resolution No. 22, Requesting Joint Committee on Government and Finance study feasibility of statewide database background check system.
And reports the same back with the recommendation that it be adopted; but under the original double committee reference first be referred to the Committee on Rules.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on Rules.
Senator Oliverio, from the Committee on Labor, submitted the following report, which was received:
Your Committee on Labor has had under consideration
Senate Concurrent Resolution No. 47, Requesting Joint Committee on Government and Finance study economic impact of state and federal prevailing wage laws.
And has amended same.
And reports the same back with the recommendation that it be adopted, as amended; but under the original double committee reference first be referred to the Committee on Rules.
Respectfully submitted,
Michael A. Oliverio II,
Chair.
The resolution, under the original double committee reference, was then referred to the Committee on Rules, with an amendment from the Committee on Labor pending.
Senator Tomblin (Mr. President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 68 (originating in the Committee on Rules)--Extending the regular session of the Legislature, 2009.
Resolved by the Legislature of West Virginia, two thirds of the members elected to each house agreeing thereto:
That the first regular session of the Seventy-Ninth Legislature, 2009, is hereby extended pursuant to section twenty- two, article VI of the Constitution of the State of West Virginia, until and including the sixth day of June, 2009, for consideration of the budget, budget bills, supplementary appropriation bills, legislation relating to implementation of or expenditures pursuant to the American Recovery and Reinvestment Act of 2009 otherwise known as the federal economic stimulus program, and for reconsideration of any bills vetoed or disapproved by the Governor and any budget bill or supplementary appropriation bill vetoed, disapproved or reduced by the Governor as to any item or part or as to the entire bill; and, be it
Further Resolved, That when adjournment is taken by the two houses of the Legislature at the close of their respective sessions on the eleventh day of April, 2009, such adjournment shall be until 12:01 a.m. on the twelfth day of April, 2009, pursuant to section twenty-two, article VI of the Constitution of the State of West Virginia, unless the Legislature is called to reconvene prior thereto by a majority vote of the Joint Committee on Joint Rules of the Legislature, in which event such adjournment shall be until the date and time of reconvening specified by said committee.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being granted, the resolution (S. C. R. No. 68) contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Oliverio, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Hall--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the resolution (S. C. R. No. 68) adopted.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Tomblin (Mr. President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Resolution No. 54 (originating in the Committee on Rules)--Authorizing the Senate Committee on Confirmations to meet and be paid during interims between regular sessions of the Seventy-Ninth Legislature .
Whereas, Section one, article one, chapter four of the Code of West Virginia, 1931, as amended, provides that either house of the Legislature may, by resolution, direct any select committee unique to that house or any standing committee of that house and created by it by rule, motion or resolution to meet between regular sessions of the Legislature; and
Whereas, The West Virginia Senate is vested with the authority, under sections eight and nine, article VII of the Constitution of West Virginia, to advise and consent to certain gubernatorial nominations and certain other nominations as determined by law; and
Whereas, The Committee on Confirmations is a standing committee of the Senate with authority to make recommendations and report to the Senate with respect to such nominations; therefore, be it
Resolved by the Senate:
That the Senate hereby authorizes its Committee on Confirmations to meet and be paid during interims between regular sessions of the Seventy-Ninth Legislature; and, be it
Further Resolved, That the Committee on Confirmations is hereby authorized to meet at times subject to the approval of the President of the Senate ; and, be it
Further Resolved, That the purpose of any such meetings would relate to gathering of information regarding prospective matters involving duties of the Senate related to advice and consent as to nominations; and, be it
Further Resolved, That members of such committee are hereby authorized by the Senate Committee on Rules to receive payment of travel and interim expenses and other compensation as provided by law.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Earl Ray Tomblin,
Chairman ex officio.
At the request of Senator Chafin, unanimous consent being granted, the resolution (S. R. No. 54) contained in the preceding report from the Committee on Rules was taken up for immediate consideration.
The question being on the adoption of the resolution, the same was put and prevailed.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. Com. Sub. for House Bill No. 2360, Insuring that tobacco products are not sold in any packaging other than the original.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2360) contained in the preceding report from the Committee on Health and Human Resources was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. House Bill No. 2485, Allowing pharmacy interns to vend pseudoephedrine and other chemical precursors of methamphetamine.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. H. B. No. 2485) contained in the preceding report from the Committee on Health and Human Resources was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2504, Establishing the Silver Alert Plan, an alert system for missing cognitively impaired persons.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2504) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 2536, Adding language that includes railcars and locomotives in the category of railroad property that is illegal to interfere or tamper with.
With amendments from the Committee on Transportation and Infrastructure pending;
And has also amended same.
Now on second reading, having been a first time and referred to the Committee on the Judiciary on April 6, 2009;
And reports the same back with the recommendation that it do pass as last amended by the Committee on the Judiciary.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2694, Establishing certain requirements for modification of custodial rights for parent's or guardian's that have been deployed to the United States Armed Forces.
With amendments from the Committee on Military pending;
And reports the same back with the recommendation that it do pass as amended by the Committee on Military to which the bill was first referred.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2694) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. House Bill No. 2884, Long-Term Care Partnership Program.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. H. B. No. 2884) contained in the preceding report from the Committee on Health and Human Resources was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with an amendment from the Committee on Health and Human Resources pending.
Senator Minard, from the Committee on Banking and Insurance, submitted the following report, which was received:
Your Committee on Banking and Insurance has had under consideration
Eng. Com. Sub. for House Bill No. 2885, Establishing a uniform credentialing form and creating a single credentialing verification organization (CVO).
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Joseph M. Minard,
Chair.
The bill, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on Banking and Insurance pending.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. Com. Sub. for House Bill No. 2916, Relating to the Emergency Medical Services Act.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Helmick, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Health and Human Resources.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3011, Repealing the section of code relating to limitation on political activity of officers or employees in the administration of the Vocational Rehabilitation Program.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on April 7, 2009;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. Com. Sub. for House Bill No. 3022, Creating a medical home health care plan for uninsured adults.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3022) contained in the preceding report from the Committee on Health and Human Resources was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance.
Senator Prezioso, from the Committee on Health and Human Resources, submitted the following report, which was received:
Your Committee on Health and Human Resources has had under consideration
Eng. Com. Sub. for House Bill No. 3336, Continuing early intervention services to families with developmentally delayed infants and toddlers but eliminating the cost-free provision.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3336) contained in the preceding report from the Committee on Health and Human Resources was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 61, Requesting Joint Committee on Government and Finance study Racial Profiling Data Collection Act results.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on the Judiciary; and then to the Committee on Rules.
Senate Concurrent Resolution No. 62, Requesting Joint Committee on Government and Finance study tax structure.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 63, Requesting Joint Committee on Government and Finance study coal mining near cemeteries.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 64, Requesting Joint Committee on Government and Finance study carbon dioxide cap and trade proposals.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 65, Requesting Joint Committee on Government and Finance study fireworks' sale, storage and usage.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 66, Requesting Joint Committee on Government and Finance study costs of highways, sewers and water projects.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Senate Concurrent Resolution No. 67, Requiring Joint Committee on Government and Finance study asbestos trust disclosure issues.
On unfinished business, coming up in regular order, was reported by the Clerk.
On motion of Senator Chafin, the resolution was referred to the Committee on Rules.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 5:30 p.m. today.
Upon expiration of the recess, the Senate reconvened and, without objection, returned to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 153, Authorizing Department of Environmental Protection promulgate legislative rules.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page seven, section one, line forty-nine, by striking out the word "repealed" and inserting in lieu thereof the word "authorized";
And,
on page nine, section one, line ninety-one, by striking out the word "repealed" and inserting in lieu thereof the word "authorized".
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 153, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 153) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 153) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 261, Mandating party executive committees submit certain nominees 70 days before election.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 370, Relating to community corrections program fees.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 11C. THE WEST VIRGINIA COMMUNITY CORRECTIONS ACT.
§62-11C-4. Special revenue account
(a) There is hereby created in the State Treasury a special revenue account to be known as the West Virginia Community Corrections Fund. Expenditures from the fund are for the purposes set forth in subsection (e) of this section and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code. The West Virginia Community Corrections Fund may receive any gifts, grants, contributions or other money from any source which is specifically designated for deposit in the fund.
(b) ~~Beginning on the first day of July, two thousand six, in~~ In addition to the fee required in section nine, article twelve of this chapter, a fee not to exceed ~~thirty-five dollars~~ $35 per month, unless modified by legislative rule as provided in section three of this article, is also to be collected from those persons on probation. This fee is to be based upon the person's ability to pay. The magistrate or circuit judge shall conduct a hearing prior to imposition of probation and make a determination on the record that the offender is able to pay the fee without undue hardship. The magistrate clerk, or deputy magistrate clerk, magistrate assistant, circuit clerk or deputy circuit clerk shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the magistrate clerk or circuit clerk shall forward the amount deposited to the State Treasurer to be credited to the West Virginia Community Corrections Fund.
(c) ~~Beginning on the first day of July, two thousand seven, in~~ In addition to the fee required in section five, article eleven-b of this chapter, a fee of ~~two dollars fifty cents~~ $2.50 per day is to be collected from those persons on home incarceration. The circuit judge, magistrate or municipal court judge shall consider the person's ability to pay in determining the imposition of the fee. The circuit clerk, magistrate clerk, or municipal court clerk or his or her designee shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the circuit clerk, magistrate clerk or municipal court clerk shall forward the amount deposited to the State Treasurer to be credited to the West Virginia Community Corrections Fund.
(d) ~~Beginning on the first day of July, two thousand six, in~~ In addition to the usual court costs in any criminal case taxed against any defendant convicted in a municipal, magistrate or circuit court, excluding municipal parking ordinances, a ~~ten-dollar~~ $10 fee shall be added. The circuit clerk, magistrate clerk, or municipal court clerk or his or her designee shall collect all fees imposed pursuant to this subsection and deposit them in a separate account. Within ten calendar days following the beginning of the calendar month, the circuit clerk, magistrate court clerk and the municipal court clerk shall forward the amount deposited to the State Treasurer to be credited to the West Virginia Community Corrections Fund.
(e) The moneys of the West Virginia Community Corrections Fund are to be disbursed by the Governor's Committee on Crime, Delinquency and Correction, upon recommendation by the community corrections subcommittee, for the funding of community corrections programs and to pay expenses of the Governor's committee in administering the provisions of this article, which expenses may not in any fiscal year exceed ten percent of the funds deposited to the special revenue account during that fiscal year.
(f) Any disbursements from the West Virginia Community Corrections Fund allocated for community corrections programs by the Governor's committee may be made contingent upon local appropriations or gifts in money or in kind for the support of the programs. Any county commission of any county or the governing body of a municipality may appropriate and expend money for establishing and maintaining community corrections programs.
§62-11C-7. Supervision or participation fee.
(a) A circuit judge, magistrate, municipal court judge or community criminal justice board may require the payment of a supervision or participation fee from any person required to be supervised by or participate in a community corrections program. The circuit judge, magistrate, municipal court judge or community criminal justice board shall consider the person's ability to pay in determining the imposition and amount of the fee.
(b) All fees ordered by the circuit court, magistrate court, municipal court or community criminal justice board pursuant to this section are to be paid to the ~~circuit clerk~~ community criminal justice board, who shall ~~monthly~~ remit the fees monthly to the treasurer of the county designated as the fiscal agent for the board pursuant to section six of this article. All fees ordered by the magistrate court pursuant to this section are to be paid to the magistrate clerk, who shall monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to said section. All fees ordered by the municipal court judge pursuant to this section are to be paid to the municipal court clerk who shall monthly remit the fees to the treasurer of the county designated as the fiscal agent for the board pursuant to section six of this article.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 370--A Bill to amend and reenact §62-11C-4 and §62-11C-7 of the Code of West Virginia, 1931, as amended, all relating to community corrections fees generally; clarifying that circuit clerks, magistrate clerks, municipal court clerks or his or her designee are all authorized to collect certain fees imposed pursuant to this article; and permitting only a community criminal justice board to have the authority to collect supervision or participation fees ordered by circuit courts, magistrate courts, municipal courts or the community criminal justice board.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 370, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 370) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 405, Relating to grandparents' visitation.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §48-10-401 and §48-10-402 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 10. GRANDPARENT VISITATION.

§48-10-401. Motion for grandparent visitation when action for divorce, custody, legal separation, annulment or establishment of paternity is pending.

(a) The provisions of this section apply to any pending actions for divorce, custody, legal separation, annulment or establishment of paternity.
(b) After the commencement of the action, a grandparent seeking visitation with his or her grandchild may, by motion, apply to the ~~circuit court or~~ family court for an order granting visitation. A grandparent moving for an order of visitation will not be afforded party status, but may be called as a witness by the court, and will be subject to cross-examination by the parties.
(c) Motions or petitions for grandparent visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.

§48-10-402. Petition for grandparent visitation when action for divorce, custody, legal separation, annulment or establishment of paternity is not pending.

(a) The provisions of this section apply when no proceeding for divorce, custody, legal separation, annulment or establishment of paternity is pending.
(b) A grandparent may petition the ~~circuit~~ family court for an order granting visitation with his or her grandchild, regardless of whether the parents of the child are married. If the grandparent filed a motion for visitation in a previous proceeding for divorce, custody, legal separation, annulment or establishment of paternity, and a decree or final order has issued in that earlier action, the grandparent may petition for visitation if the circumstances have materially changed since the entry of the earlier order or decree.
(c) When a petition under this section is filed, the matter shall be styled "In re grandparent visitation of [petitioner's(s') name(s)]."
(d) Motions or petitions for grandparent visitation shall be filed and heard in the family court except when an abuse or neglect proceeding involving the child or children is pending before the circuit court, in which case the motion or petition shall be filed and heard in the circuit court.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 405--A Bill to amend and reenact §48-10-401 and §48-10-402 of the Code of West Virginia, 1931, as amended, relating to circuit and family court jurisdiction over petitions for grandparent visitation; and establishing exclusive family court jurisdiction over such petitions or motions except when the child or children with whom visitation is sought are the subject or subjects of a pending abuse or neglect petition in the circuit court.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 405, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 405) passed with its House of Delegates amended title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 431, Providing in-state medical providers notice of small group health benefit plan.
A message from The Clerk of the House of Delegates announced that that body had refused to recede from its amendments, and requested the appointment of a committee of conference of three from each house on the disagreeing votes of the two houses, as to Eng. Senate Bill No. 445, Removing conservation supervisors' election certification requirements.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates Shook, Tabb and Hamilton.
On motion of Senator Chafin, the Senate agreed to the appointment of a conference committee on the bill.
Whereupon, Senator Tomblin (Mr. President) appointed the following conferees on the part of the Senate:
Senators Williams, Snyder and K. Facemyer.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Com. Sub. for Senate Bill No. 489, Allowing Board of Banking and Financial Institutions receive travel expense compensation.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
Eng. Com. Sub. for Senate Bill No. 612, Relating to willful nonpayment of child support.
On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendment to the bill was reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 5. CRIMES AGAINST PUBLIC JUSTICE.

§61-5-29. Failure to meet an obligation to pay support to a minor; penalties.

(1) A person who: (a) ~~Persistently~~ Repeatedly and willfully fails to ~~provide~~ pay his or her court-ordered support which he or she can reasonably provide and which he or she knows he or she has a duty to provide to a minor; or and (b) is subject to court order to pay any amount for the support of a minor child and is delinquent in meeting the full obligation established by the order and has been delinquent for a period of at least six months' duration, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or confined in ~~the county or regional~~ jail for not more than one year, or both fined and confined.
(2) A person who ~~persistently~~ repeatedly and willfully fails to ~~provide~~ pay his or her court-ordered support which he or she can reasonably provide and which he or she knows he or she has a duty to provide to a minor by virtue of a court or administrative order and the failure results in: ~~(a) An arrearage of not less than $8,000; or (b)~~ twelve ~~consecutive~~ months without payment of support that remains unpaid, is guilty of a felony and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000, or imprisoned for not less than one year nor more than three years, or both fined and imprisoned.
(3) In a prosecution under this section, the defendant's alleged inability to reasonably provide the required support may be raised only as an affirmative defense, after reasonable notice to the state.
On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
Engrossed Committee Substitute for Senate Bill No. 612, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 612) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 719, Allowing certain police officers keep weapon after retirement.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
Eng. Senate Bill No. 760, Authorizing Supreme Court to develop pilot pre-trial release programs.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 68, Extending 2009 regular legislative session.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 37--Declaring Bituminous Coal to be the official state rock.
Referred to the Committee on Government Organization.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 79--Proclaiming April, 2009, to be the Month of the Military Child.
Referred to the Committee on Government Organization.
Executive Communications
Senator Tomblin (Mr. President) laid before the Senate the following communication from His Excellency, the Governor, regarding annual reports, which communication was received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON

April 7, 2009

Senate Executive Message No. 6
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear Mr. President:
Pursuant to the provisions of §5-1-20 of the Code of West Virginia, I hereby certify that the following 2007-2008 annual reports have been received in the Office of the Governor:
1.Accountancy, West Virginia Board of;
2.Acupuncture, West Virginia Board of;
3.Affordable Housing Trust Fund, West Virginia;
4.Architects, West Virginia State Board of;
5.Attorney General, State of West Virginia;
6.Banking, Division of, West Virginia Department of Revenue (2007);
7.Behavioral Health, Office of the Ombudsman for, West Virginia Department of Health and Human Resources;
8.Board of Education, West Virginia;
9.Center for Nursing, West Virginia (2007);
10.Children's Health Insurance Program, West Virginia Department of Administration;
11.Chiropractic, State of West Virginia Board of;
12.Coal Mine Health and Safety, West Virginia Board of, and Coal Mine Technical Review Committee;
13.Consumer Advocate, Division of, West Virginia Public Service Commission;
14.Consumer Advocate, Division of, Office of the Insurance Commissioner, West Virginia Department of Revenue;
15.Consumer Protection and Antitrust Divisions, Office of the Attorney General;
16.Corrections, Division of, West Virginia Department of Military Affairs and Public Safety;
17.Counseling, West Virginia Board of Examiners in (2006 - 2008);
18.Court of Claims, West Virginia;
19.Crime, Delinquency and Correction, Governor's Committee on, Community Corrections Subcommittee, Division of Criminal Justice Services, West Virginia Department of Military Affairs and Public Safety;
20.Crime, Delinquency and Correction, Governor's Committee on, Law-Enforcement Training Subcommittee, Division of Criminal Justice Services, West Virginia Department of Military Affairs and Public Safety;
21.Criminal Justice Services, Division of, West Virginia Department of Military Affairs and Public Safety;
22.Dental Examiners, West Virginia Board of (2007 and 2008 Reports);
23.Disability Retirement Experience, West Virginia State Police, by West Virginia Consolidated Public Retirement Board for Death, Disability and Retirement Fund (Plan A) and State Police Retirement System (Plan B);
24.Economic Development Authority, West Virginia;
25.Employee Suggestion Award Board, West Virginia Department of Administration;
26.Equal Employment Opportunity, West Virginia Office of;
27.Family Protection Services Board, West Virginia (2007 and 2008 Reports);
28.Higher Education Policy Commission, Science and Research Report, West Virginia;
29.Human Rights Commission, West Virginia Department of Health and Human Resources;
30.Juvenile Services, Division of, West Virginia Department of Military Affairs and Public Safety;
31.Licensed Practical Nurses, West Virginia State Board of Examiners for;
32.Logging Sediment Control Act, Division of Forestry, West Virginia Department of Commerce;
33.Long-Term Care, Office of Health Facility Licensure and Certification, Department of Health and Human Resources;
34.Lottery, West Virginia;
35.Medicine, West Virginia Board of;
36.Massage Therapy, West Virginia Licensure Board of;
37.Mine Inspectors' Examining Board, Office of Miners' Health, Safety and Training, West Virginia Department of Commerce;
38.Miners' Health, Safety and Training, Office of, West Virginia Department of Commerce;
39.Motor Vehicles, Division of, West Virginia Department of Transportation;
40.Municipal Bond Commission, West Virginia;
41.National Guard, West Virginia, Office of the Adjutant General;
42.Natural Resources, Division of, West Virginia Department of Commerce;
43.Neighborhood Investment Program, Development Office, West Virginia Department of Commerce;
44.Nursing Home Administrators Licensing Board, West Virginia;
45.Oil and Gas Inspectors' Examining Board, West Virginia Department of Environmental Protection;
46.Osteopathy, West Virginia Board of;
47.Parole Board, West Virginia;
48.Partnership to Promote Community Well-Being, West Virginia;
49.Physical Therapy, West Virginia Board of;
50.Planning and Development Council, Region VII (2007 and 2008 Reports);
51.Poison Center, West Virginia;
52.Professional Engineers, West Virginia State Board of Registration for;
53.Professional Surveyors, West Virginia Board of;
54.Purchase of Commodities and Services from the Handicapped, Governor's Committee for, West Virginia Department of Administration;
55.Psychologists, West Virginia Board of Examiners of;
56.Real Estate Commission, West Virginia;
57.Regional Education Service Agencies, West Virginia;
58.Regional Education Service Agency II, West Virginia;
59.Regional Intergovernmental Council (2007);
60.Registered Professional Nurses, West Virginia Board of Examiners for;
61.Rehabilitation Council, West Virginia State;
62.Rehabilitation Services, Division of, West Virginia Department of Education and the Arts;
63.Risk and Insurance Management, West Virginia Board of;
64.Ron Yost Personal Assistance Services Board, Statewide Independent Living Council, Division of Rehabilitation Services, West Virginia Department of Education and the Arts;
65.Sanitarians, West Virginia Board of Registration for;
66.Senior Services, West Virginia Bureau of;
67.Supreme Court of Appeals, West Virginia;
68.State Police, West Virginia;
69.Statewide Independent Living Council, Division of Rehabilitation Services, West Virginia Department of Education and the Arts;
70.Tax Increment Financing Act, West Virginia Development Office;
71.Veterinary Medicine, West Virginia Board of;
72.Water Development Authority, West Virginia;
73.Workforce Investment Board, Inc., Northern Panhandle, Region 5;
74.Youth Services, Bureau for Children and Families, West Virginia Department of Health and Human Resources (2007).
Very truly yours,
Joe Manchin III,
Governor.
Senator Tomblin (Mr. President) then laid before the Senate the following communication from His Excellency, the Governor, submitting the annual probation and parole report, which was received:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON

April 7, 2009

Senate Executive Message No. 7
The Honorable Earl Ray Tomblin
President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear Mr. President:
As empowered by Section 11, Article VII of the Constitution of West Virginia and section sixteen, article one, chapter five of the Code of West Virginia, I extended clemency to the person named on the attached report. I submit this report in accordance with the above-cited provisions for the period March 8, 2008, through April 7, 2009.
Very truly yours,
Joe Manchin III,
Governor.
PARDONS AND MEDICAL RESPITES GRANTED
BY GOVERNOR JOE MANCHIN III
FOR THE PERIOD
MARCH 8, 2008, THROUGH APRIL 7, 2009
Morgan, Gregory Dale
Decided August 15, 2008
In 1977, Mr. Morgan pled guilty to two counts of Breaking and Entering. On March 16, 1977, he was sentenced by the Circuit Court of Mercer County to serve a term of six months to two years at the Davis Juvenile Center. After serving six months of his sentence, Mr. Morgan was released on probation from the Davis Juvenile Center and successfully completed his term of probation. Since that time, Mr. Morgan has maintained himself as a responsible, law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his history and record, unanimously recommended that Mr. Morgan be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Gregory Dale Morgan for the offense of Breaking and Entering.
NO MEDICAL RESPITES WERE GRANTED DURING THE PERIOD
MARCH 8, 2008, THROUGH APRIL 7, 2009

Senator Tomblin (Mr. President) next laid before the Senate the following communication from His Excellency, the Governor, consisting of an executive nomination for appointee:
STATE OF WEST VIRGINIA
OFFICE OF THE GOVERNOR
CHARLESTON

April 8, 2009

Senate Executive Message No. 8

TO:The Honorable Members of the
West Virginia Senate
Ladies and Gentlemen:
I respectfully submit the following nomination for your advice and consent:
1.For Member, Council for Community and Technical College Education, Greg Wooten, Logan, Logan County, for the term ending December 20, 2012.
Notice of this appointment was previously provided to the appropriate legislative staff at the time the appointment was made.
Sincerely,
Joe Manchin III,
Governor.
Which communication was referred to the Committee on Confirmations and incorporated with the executive nominations received earlier this session; all to be considered as a special order of business for Saturday, April 11, 2009, at 11 a.m.
The Senate proceeded to the sixth order of business.
Petitions
Senator Stollings presented a petition from Pastor John D. Freeman and numerous Calvary Baptist Church members, supporting Senate Joint Resolution No. 7 (Proposing amendment to Constitution designated Marriage Protection Amendment) and Senate Joint Resolution No. 12 (Proposing amendment to Constitution designated Marriage Protection Amendment).
Referred to the Committee on the Judiciary.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had returned to the Senate calendar, on third reading, Engrossed House Bill No. 2651 and Engrossed Committee Substitute for House Bill No. 2742.
Senator Chafin also announced that in the same meeting, the Committee on Rules had removed from the Senate second reading calendar, Engrossed Committee Substitute for House Bill No. 2401, Engrossed Committee Substitute for House Bill No. 2418, Engrossed Committee Substitute for House Bill No. 2419, Engrossed Committee Substitute for House Bill No. 2470, Engrossed Committee Substitute for House Bill No. 2567, Engrossed Committee Substitute for House Bill No. 2690, Engrossed Committee Substitute for House Bill No. 2719, Engrossed Committee Substitute for House Bill No. 2737, Engrossed House Bill No. 2801, Engrossed Committee Substitute for House Bill No. 2869, Engrossed Committee Substitute for House Bill No. 2999 and Engrossed Committee Substitute for House Bill No. 3017, under rule number seventeen of the Rules of the Senate.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for House Bill No. 2218, Authorizing the Department of Transportation to promulgate legislative rules.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2218) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2218) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2222, Authorizing the Department of Military Affairs and Public Safety to promulgate legislative rules.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2222) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2222) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2407, Relating to trustee accounts and funds, earnings and personal property of inmates.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2407) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2569, Creating the Juvenile Services Reimbursement Offender Fund.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2569) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 2651, Repealing article regulating male breeding animals.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2651) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2684, West Virginia Drug Offender Accountability and Treatment Act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2684) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2685, Amending the Uniform Principal and Income Act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2685) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2685--A Bill to amend and reenact §44B-4-409 of the Code of West Virginia, 1931, as amended; to amend and reenact §44B-5-505 of said code; and to amend said code by adding thereto a new section, designated §44B-6-606, all relating to amending the Uniform Principal and Income Act; complying with IRS comments regarding allocation of IRA distributions; clarifying the formula for calculating how much a trust needs to distribute and how much it can use to pay taxes; and providing effective dates of amendments.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2734, Relating to minimum guarantees provided to members who elected to transfer from the Teachers' Defined Contribution System to the Teachers' Retirement System.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2734) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2742, Repealing outdated provisions from the WV Code relating to vinegars.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2742) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2753, Relating to the continuation of the Design-Build Program.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2753) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2753) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2839, Relating to the management of pain by physicians.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Boley, Bowman, Browning, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--29.
The nays were: Barnes, Caruth, Guills and Sypolt--4.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2839) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 2877, Increasing the monetary penalties, removing the possibility of incarceration and adding community service for a minor who misrepresents his or her age when purchasing alcohol.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2877) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2877--A Bill to amend and reenact §11-16-19 of the Code of West Virginia, 1931, as amended; to amend and reenact §49-1-4 of said code; and to amend and reenact §60-3A-24 of said code, all relating to changing the use of alcoholic beverages by minors from a status offense to an act of juvenile delinquency; and establishing penalties.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2920, Eliminating the felony conviction for a second or subsequent conviction of petit larceny.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Jenkins, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. House Bill No. 2950, Creating the Neighborhood Housing and Economic Stabilization Program for low-income minority neighborhoods.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2950) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2950) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. House Bill No. 2952, Clarifying that a terroristic threat is a felony regardless of intent to actually commit the threatened act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2952) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. Com. Sub. for House Bill No. 3036, Relating to notice and publication requirements for expungement petitions.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3036) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 3036--A Bill to amend and reenact §61-11-26 of the Code of West Virginia, 1931, as amended, relating to removing the notice and publication requirements for expungement petitions.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 3120, Increasing the WV Prosecuting Attorneys Institute's executive council's elected members from five to seven and permitting the appointment of special prosecutors in juvenile delinquency, child abuse or neglect proceedings.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for House Bill No. 3196, Declaring certain claims against the state and its agencies to be moral obligations of the state.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3196) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Boley, Bowman, Browning, Caruth, Chafin, Deem, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Laird, McCabe, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Unger, Wells, White, Williams, Yost and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Oliverio--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 3196) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the ninth order of business.
Eng. Com. Sub. for House Bill No. 2170, Authorizing the Department of Commerce to promulgate legislative rules.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
O n page seven, section two, after line sixty-two, by inserting the following:
On page two, section four, subsection 4.1, after the word "Escalators'" by inserting a comma and the words "issued or effective on October 6, 2007, October 5, 2007, and March 31, 2006, respectively,";
On page two, section four, subsection 4.1, after the word "Chairlifts'" by inserting a comma and the words "published on August 28, 2008,";.
The bill (Eng. Com. Sub. for H. B. No. 2170), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2401, Providing for the expiration of the alternative minimum tax.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2418, Relating to exempting certain records of the Division of Corrections and Regional Jail Authority from the Freedom of Information Act that, if released, could aid inmates in committing unlawful acts.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2419, Providing inmates a reduction in sentence for completion of education and rehabilitation programs.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2464, Authorizing county commissions to designate locations for early voting other than the county courthouse or annex.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3. VOTING BY ABSENTEES.
§3-3-2a. Early voting areas; prohibition against display of campaign material.

(a) The county commission shall designate the courthouse or annex to the courthouse as the primary location for early voting and in addition, the commission may designate other locations as provided in subsection (b).
(b) The county commission may, with the approval of the county clerk or other official charged with the administration of elections, and the written agreement of the chairpersons of the county executive committees of the two major political parties, designate additional locations for early voting other than the county courthouse or courthouse annex. The additional locations shall comply with the requirements of this article for early in- person voting and criteria prescribed by the Secretary of State.
(c) The Secretary of State is hereby directed to propose legislative and emergency rules in accordance with the provisions of article three, chapter twenty-nine-a of this code as may be necessary to implement the provisions of this section. The rules shall include establishment of criteria to assure neutrality and security in the selection of additional locations.
(d) Throughout the period of early in-person voting, the official designated to supervise and conduct absentee voting shall make the following provisions for voting:
(1) The official shall provide a sufficient number of voting booths or devices appropriate to the voting system at which voters may prepare their ballots. The booths or devices are to be in an area separate from but within clear view of the public entrance area of the official's office or other area designated by the county commission for absentee voting and are to be arranged to ensure the voter complete privacy in casting the ballot.
(2) The official shall make the voting area secure from interference with the voter and shall ensure that voted and unvoted ballots are at all times secure from tampering. No person, other than a person lawfully assisting the voter according to the provisions of this chapter, may be permitted to come within five feet of the voting booth while the voter is voting. No person, other than the officials or employees of the official designated to supervise and conduct absentee voting or members of the board of ballot commissioners assigned to conduct absentee voting, may enter the area or room set aside for voting.
(3) The official designated to supervise and conduct absentee voting shall request the county commission designate another area within the county courthouse, any annex of the courthouse or any other designated as early in-person voting locations within the county, as a portion of the official's office, for the purpose of absentee in-person voting in the following circumstances:
(A) If the voting area is not accessible to voters with physical disabilities;
(B) If the voting area is not within clear view of the public entrance of the office of the official designated to supervise and conduct absentee voting; or
(C) If there is no suitable area for absentee in-person voting within the office.
Any designated area is subject to the same requirements as the regular absentee voting area.
(4) The official designated to supervise and conduct absentee voting shall have at least two representatives to assist with absentee voting: Provided, That the two representatives ~~shall~~ may not be registered with the same political party affiliation or two persons registered with no political party affiliation. The representatives may be full-time employees, temporary employees hired for the period of absentee voting in person or volunteers.
(5) No person may do any electioneering nor may any person display or distribute in any manner, or authorize the display or distribution of, any literature, posters or material of any kind which tends to influence the voting for or against any candidate or any public question on the property of the county courthouse, or any annex facilities, or any other designated early voting locations within the county, during the entire period of regular in-person absentee voting. The official designated to supervise and conduct absentee voting is ~~hereby~~ authorized to remove the material and to direct the sheriff of the county to enforce the prohibition.
The bill (Eng. Com. Sub. for H. B. No. 2464), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2470, Exempting all schools which include grades kindergarten through twelve from paying consumer sales tax on items the school sells.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2530, Relating to further defining professional student support personnel.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
On pages twelve and thirteen, section three-a, by striking out all of subsection (b) and inserting in lieu thereof a new subsection (b), to read as follows:
(b) When computing the basic foundation program for fiscal years 2010 through 2013 only, the allowance for professional educators and the allowance for service personnel computed for each school district in accordance with the provisions of this article that became effective on July 1, 2008, shall be based on the number of personnel that would be eligible based on the net enrollment of the county notwithstanding the number employed for the second month of the prior school term and notwithstanding the pro rata reduction for failure to establish and maintain the minimum professional instructional personnel ratios set forth in section four of this article.
The bill (Eng. Com. Sub. for H. B. No. 2530), as amended, was then ordered to third reading.
Eng. House Bill No. 2541, Including poultry among those domesticated farm animals or stock which the owner shall be liable for damages caused by those animals.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On page two, section one, line two, after the word "poultry" by inserting the words "as defined in section two, article two-b of this chapter".
The bill (Eng. H. B. No. 2541), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2557, Relating to the enforcement of new motor vehicle warranties.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on the Judiciary, were reported by the Clerk, considered simultaneously, and adopted:
On page five, section three, line twenty-six, by striking out the word "article" and inserting in lieu thereof the word "section";

And,

On page five, section three-a, line five, by striking out the words "$500 or more" and inserting in lieu thereof the words "five percent of the manufacturer's suggested retail price".
The bill (Eng. Com. Sub. for H. B. No. 2557), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2567, Relating to filing agency rules with the Secretary of State under the Administrative Procedures Act.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2690, Updating language pertaining to indemnity for the death of diseased or infected animals.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2719, Relating to the sale and distribution of craft beer.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2737, Authorizing the Administrative Director of the Supreme Court of Appeals to hire regional or specialized probation officers.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2767, Changing the membership of the PEIA Financial Board.
On second reading, coming up in regular order, was read a second time.
On motions of Senators Bowman and Plymale, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
On page two, section four, line two, by striking out the words "and consists of" and inserting in lieu thereof the words "with the following eleven members";
On page three, section four, line nineteen, by striking out the word "Three" and inserting in lieu thereof the word "Five";
On page three, section four, line twenty-eight, by striking out the word "three" and inserting in lieu thereof the word "five";
On page three, section four, line thirty-five, by striking out the word "five" and inserting in lieu thereof the word "six";
And,
On page four, section four, line fifty-two, by striking out the word "Five" and inserting in lieu thereof the word "Six".
The bill (Eng. Com. Sub. for H. B. No. 2767), as amended, was then ordered to third reading.
Eng. House Bill No. 2801, Updating language and making technical changes and clarifications of the West Virginia Board of Medicine.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2836, School Innovation Zones Act.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §18-5B-1, §18-5B-2, §18-5B-3, §18-5B-4, §18-5B-5, §18-5B-6, §18-5B-7, §18-5B-8 and 18- 5B-9, all to read as follows:
ARTICLE 5B. SCHOOL INNOVATION ZONES ACT.
§18-5B-1. Title.
This article shall be known as the "School Innovation Zones Act".
§18-5B-2. Legislative findings and purpose.
(a) Legislative findings. -- The Legislature finds that:
(1) Decades of school improvement literature substantiate that schools where the principal uses a collaborative and distributed approach to leadership and where the teachers have a unity of purpose, operate in a cohesive learning-centered culture and implement consistent, pervasive and research-based approaches to learning, can and do improve student learning;
(2) As in all enterprises, rules are established in public education to manage the resources efficiently, allot time among the activities and processes required and ensure attention to the goals mandated, but rules, by their nature, also limit the flexibility of professional educators to engage in those activities and implement those approaches that may best improve the learning of their students for the 21st century;
(3) Allowing individual schools to seek and receive exceptions from certain statutes, policies, rules and interpretations through the creation of school innovation zones will provide them greater control over important educational factors that impact student achievement, such as curriculum, personnel, organization of the school day, organization of the school year, technology utilization and the delivery of educational services to improve student learning; and
(4) Providing greater flexibility at innovation zones schools will enable school-level professional educators to exercise more fully their professional judgement to improve student learning for the 21st century by instituting creative and innovative practices.
(b) Intent and purpose. -- The intent and purpose of this article is to:
(1) Provide for the establishment of school innovation zones to improve educational performance;
(2) Provide principals and teachers at schools approved as innovation zones with greater flexibility and control to meet the needs of a diverse population of students by removing certain policy, rule, interpretive and statutory constraints;
(3) Provide a testing ground for innovative educational reform programs and initiatives to be applied on an individual school level;
(4) Provide information regarding the effects of specific innovations and policies on student achievement;
(5) Document educational strategies that enhance student success; and
(6) Increase the accountability of the state's public schools for student achievement as measured by the state assessment programs and local assessment processes identified by the schools.

§18-5B-3. School innovation zones; application for designation; state board rule.

(a) The state board shall promulgate a rule, including an emergency rule if necessary, in accordance with article three-b, chapter twenty-nine-a of this code to implement the provisions of this article. The rule shall include provisions for at least the following:
(1) A process for schools to apply for designation as innovation zones that encompasses at least the following:
(A) The manner, time and process for the submission of a school's innovation zone application;
(B) The contents of the application; and
(C) Factors to be considered by the state board when evaluating a school's application, which shall include, but are not limited to, the following factors:
(i) The level of staff commitment to apply for designation as an innovation zone as determined by a vote by secret ballot at a special meeting of all professional educators regularly employed at the school as provided in section six of this article;
(ii) Support from parents, students, the county board of education, the local school improvement council and the school's business partners; and
(iii) The potential for a school to be successful as an innovation zone; and
(2) Standards for the state board to review school applications for designation as innovation zones and to make determinations on the designation of innovation zone schools.
(b) The state board shall review a school's application in accordance with the standards adopted by the board and shall determine whether to designate the school as an innovation zone. The state board shall notify a school of the board's determination within sixty days of receipt of the school's innovation zone application.

§18-5B-4. Innovation zone schools; required plans; plan approval; state board rule.

(a) The rule promulgated by the state board pursuant to section three of this article also shall include at least the following:
(1) Each school designated as an innovation zone or seeking designation as an innovation zone in accordance with this article shall develop an innovation zone plan;
(2) The innovation zone plan shall contain:
(A) A description of the programs, policies or initiatives the school intends to implement as an innovative strategy to improve student learning if the plan is approved in accordance with section five of this article;
(B) A list of all county and state board rules, policies and interpretations, and all statutes, if any, that the school has identified as prohibiting or constraining the implementation of the plan, including an explanation of the specific exceptions to the rules, policies and interpretations and statutes required for plan implementation. A school may not request an exception from any state board rule, policy or interpretation, or from any statute, nor may an exception be granted or otherwise authorized under any provisions of this article, from any of the following:
(i) An assessment program administered by the West Virginia Department of Education; and
(ii) Any provision of law or policy required by the No Child Left Behind Act of 2001, Public Law No. 107-110; and
(C) Any other information the state board requires; and
(3) The innovation zone plan may include:
(1) An emphasis in the early childhood through intermediate grade levels on ensuring that each student is prepared fully at each grade level, including additional intervention strategies at grade levels three and eight to reinforce the preparation of students who are not prepared fully for promotion, or an emphasis in the secondary grade levels on ensuring that each student is prepared fully for college or other post-secondary education, as applicable for the school; and
(2) An emphasis on innovative strategies that allows academically advanced students to pursue academic learning above grade level or not available through the normal curriculum at the school.
(b) Each school designated or seeking designation as an innovation zone shall submit its innovation zone plan to the school's professional educators, the county superintendent and county board having jurisdiction over the school, the state board, and the state superintendent in accordance with section five of this article.

§18-5B-5. Approval of innovation zone plans; waiver of statutes, policies, rules or interpretations.

(a) Each school designated or seeking designation as an innovation zone shall:
(1) Submit its innovation zone plan to the professional educators assigned to the school for review. An innovation zone plan is approved by the school when approved by a vote by secret ballot at a special meeting of all professional educators regularly employed at the school as provided in section six of this article;
(2) Submit its innovation zone plan as approved by vote of the school's professional educators to the county superintendent and board for review. The county board shall within sixty days of receipt of the plan review the plan and with recommendations from the county superintendent report its support or concerns, or both, and return the plan and report to the school principal, faculty senate and local school improvement council; and
(3) Submit its innovation zone plan as approved by vote of the school's professional educators along with the report of the county board to the state board and state superintendent for review. The county board shall be given an opportunity to present its concerns with the plan, if any, to the state board during its review. Except as provided in subsection (c) of this section, the state board and state superintendent shall approve or disapprove the plan within sixty days of receipt, subject to the following:
(A) No exceptions to county or state board rules, policies or interpretations are granted unless both the state superintendent and the state board approve the plan at least conditionally pursuant to subsections (b) and (c) of this section; and
(B) If the plan is disapproved, the state superintendent, the state board or both, as applicable, shall communicate it's reasons for the disapproval to the school and make recommendations for improving the plan. The school may amend its plan pursuant to (d) of this section.
(b) Upon the approval of a school's innovation zone plan by the state board and state superintendent, all exceptions to county and state board rules, policies and interpretations listed within the plan are granted.
(c) If a school's innovation zone plan, or a part thereof, may not be implemented unless an exception to a statute is granted by Act of the Legislature, the state board and state superintendent may approve the plan, or the part thereof, only upon the condition that the Legislature acts to grant the exception. If the state board and state superintendent approve a plan on that condition, the state board and state superintendent shall submit the plan with the request for an exception to a statute, along with supporting reasons, to the Legislative Oversight Commission on Education Accountability. The Commission shall review the plan and request and make a recommendation to the Legislature on the exception requested.
(d) The rule promulgated by the state board pursuant to section three of this article shall include a process for amending or revising an innovation zone plan. The process shall require that any amendments or revisions to an innovation zone plan are subject to the approval requirements of subsection (a) of this section.

§18-5B-6. School approval of innovation plan application and plan; transfer of employees.

(a) A secret ballot vote at a special meeting of all professional educators regularly employed at the school shall be conducted to determine the following:
(1) The level of staff commitment to apply for designation as an innovation zone in accordance with section three of this article; and
(2) The approval of an innovation zone plan by a school as provided in section five of this article.
(b) Except for amendments or revisions to an existing innovation zone plan pursuant to section five of this article, the vote conducted to make both determinations set forth in subsection (a) of this section shall occur simultaneously at the same special meeting of all professional educators regularly employed at the school.
(c) A panel consisting of the elected officers of the school's faculty senate and one parent member of the school's local school improvement council shall call the meeting required in subsection (a) of this section, conduct the votes and certify the results to the principal, the county superintendent and the president of the county board. The panel shall provide notice of the special meeting to all professional educators regularly employed at the school at least two weeks prior to the meeting and shall provide an absentee ballot to each professional educator regularly employed at the school who can not attend the meeting to vote.
(d) At least eighty percent of the professional educators regularly employed at the school and voting as provided in this section must vote to apply for designation as an innovation zone and to approve the school's innovation zone plan before the level of staff commitment at the school is sufficient for the school to apply and before the plan is approved by the school.
(e) An employee regularly employed at a school applying for or designated as an innovation zone who is or will be affected by implementation of the innovation zone plan or proposed plan may request a transfer to another school in the school district. The county board shall make every reasonable effort to accommodate the transfer.
§18-5B-7. Progress reviews and annual reports.
(a) At least annually, the state board or its designated committee shall review the progress of the development or implementation of a school's innovation zone plan. If, following such a review, the state board determines that a designated school has not made adequate progress toward developing or implementing its plan, the board shall submit a report to the school identifying its areas of concern. The state board or its designated committee may conduct an additional review within six months of submitting a report in accordance with this section. If, following such additional review, the state board or its designated committee determines that the school has not made adequate progress toward developing or implementing its innovation zone plan, the state board may revoke the school's designation as an innovation zone or, if the school's innovation zone plan has been approved in accordance with section five of this article, rescind its approval of the plan.
(b) The state board shall provide an annual report on innovation zones and the progress of innovation zone plans to the Legislative Oversight Committee for Educational Accountability.

§18-5B-8. Teacher vacancies in an innovation zone; job postings exceeding certain qualifications and requirements; approval of postings.

A school designated as an innovation zone whose school innovation zone plan has been approved in accordance with section five of this article may make a job posting for a teacher vacancy at the school that sets forth standards or qualifications that exceed the standards and qualifications provided in section seven- a, article four, chapter eighteen-a of this code: Provided, That teachers in the county approve the job posting by majority vote: Provided, however, That the county superintendent administers the vote and the record of the vote remains on file in the personnel office of the county board until the school is no longer designated as an innovation zone.
§18-5B-9. Establishment of new innovation zone schools.
A state institution of higher education may establish a new innovation zone school with the approval of the county board with jurisdiction over the school district in which the new school is planned to be located. The state board rule required to be promulgated to implement the provisions of this article shall include a process for a state institution of higher education to establish a new innovation zone school. In order to establish a new innovation zone school, the institution of higher education must meet all the requirements of this article except for the requirements relating to professional educators voting for the designation of a school as an innovation zone and voting for the approval of the innovation zone plan.
The bill (Eng. Com. Sub. for H. B. No. 2836), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2863, Relating to construction of state utility projects.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
On pages twenty-three and twenty-four, section six, by striking out all of subsection (d).
The bill (Eng. Com. Sub. for H. B. No. 2863), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2869, Lengthening the time frame for the filing of post-primary and post general campaign financial statements.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 2968, Requiring the State Fire Commission to establish safety standards for liquefied petroleum gas systems.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on the Judiciary, were reported by the Clerk, considered simultaneously, and adopted:
On page two, after section five-c, by inserting a new section, designated sixteen-d, to read as follows:
§29-3-16d. Performance of installation of propane gas systems.
(a) Notwithstanding any statutory or regulatory provisions to the contrary, any person who installs, fuels, maintains or services any fuel gas system to a one or two family dwelling shall comply with this article and the rules promulgated under this article relating to fuel gas systems.
(b) This section does not apply to any person who performs this work on a single family dwelling owned or leased, and occupied by that person. The personal exemption provided in this subsection is the same as the personal exemption provided in the Supervision of Fire Protection Work Act, §29-3D-1, et seq. ;
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §29-3-5c and §29-3- 16d, all to read as follows: .
The bill (Eng. Com. Sub. for H. B. No. 2968), as amended, was then ordered to third reading.
Eng. House Bill No. 2981, Relating to primary elections and nominating procedures of third-party candidates.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Kessler, unanimous consent being granted, the bill was advanced to third reading with the unreported Judiciary committee amendment pending and the right for further amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2999, Relating to the Streamlined Sales and Use Tax Agreement and the West Virginia consumers sales and service tax and use tax.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 3017, Exempting from the consumers sales and service tax and use tax any sales of donated clothing or clothing accessories.
Having been removed from the Senate second reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for House Bill No. 3134, Municipal vote by mail pilot program.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 3A. VOTE BY MAIL PILOT PROGRAM.
§3-3A-1. Short title.
This article shall be known as the "West Virginia Vote By Mail Pilot Program".
§3-3A-2. Vote by mail pilot program.
This article establishes a two phase pilot project that will allow certain municipalities to vote by mail. Phase one authorizes Class IV municipalities to conduct only early voting for municipal elections by mail beginning with the municipal election of 2010. Phase two authorizes five municipalities in the state to conduct all voting by mail beginning with the primary election of 2011. The pilot project will permit registered and other qualified voters of the authorized municipalities to vote a ballot by mail during the pilot program period. The Class IV municipalities that choose to participate in phase one may conduct only the early voting for the municipal elections entirely by mail. The five municipalities selected for participation in phase two may conduct both the primary and general elections entirely by mail.
§3-3A-3. Secretary of State rulemaking.

(a) The Secretary of State is hereby directed to propose emergency and legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to implement phase one of the vote by mail pilot program. In addition to any other provisions the secretary believes are necessary to provide for the effective, efficient and orderly administration of phase one of the vote by mail pilot program, the rules proposed by the secretary shall provide for phase one municipal elections the requirements and procedures for conducting an election by mail including:
(1) That a notice of early voting by mail will be mailed to each registered voter in the municipality no more than four weeks nor less than two weeks prior to the start of the early voting period. The notice may be included in any utility or service statement or invoice mailed to every household in the municipality or a postcard sent to all registered voters in the municipality;
(2) That each ballot packet shall consist of the actual ballot, instructions, a secrecy envelope and a ballot return envelope;
(3) That each ballot will be mailed with detailed instructions on how to mark the ballot, place it in the secrecy envelop and the ballot return envelope and how to sign the ballot return envelope, a warning that the ballot return envelope must be signed or the ballot will not be counted, a warning that signing someone else's ballot return envelope is illegal, an alternative procedure for any person who is unable to sign a ballot return envelope and a procedure for returning a spoiled ballot should the voter make a mistake or otherwise need a new ballot; and
(4) That each ballot must be mailed or brought to the municipal precinct by the close of the early voting period.
(b) The Secretary of State is hereby directed to propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code necessary to implement the phase two vote by mail pilot program. In addition to any other provisions the secretary believes are necessary to provide for the effective, efficient and orderly administration of phase two of the vote by mail pilot program, the rules proposed by the Secretary shall include:
(1) Criteria for the selection of up to five municipalities to participate in the vote by mail pilot program;
(2) Procedures for conducting voting by mail including those specified in subsection (a) of this section;
(3) Requirements and criteria for the designation of places of deposit for the ballots cast in an election; and
(4) Dates and times the places of deposit must be open and the security requirements for the places of deposit. Places of deposit shall be open on the date of the election for a period of eight or more hours, but must be open until at least eight p.m., at a minimum.
(c) Each municipality wishing to conduct early voting by mail shall adopt an ordinance expressing the municipality's intent and notifying the public of the changes in voting.
(d) It is the duty of all officials designated to supervise and conduct the vote by mail program, other municipal officials, and all election commissioners and poll clerks to abide by the Secretary of State's rules, orders and instructions and to use the forms, lists and records prescribed by the Secretary of State.
§3-3A-4. Authority to conduct voting by mail
The voting by mail program is to be supervised and conducted by the municipal recorder or other officer authorized by charter or ordinance provisions to conduct voting for any election held entirely within the municipality. All other provisions of this article for conducting a municipal election shall apply.
§3-3A-5. Termination of pilot project.
The provisions of this article related to phase two of the pilot project shall terminate on January 1, 2014, unless sooner terminated, continued or reestablished.
The bill (Eng. Com. Sub. for H. B. No. 3134), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3288, Relating to mental health parity.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Banking and Insurance, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §5-16-7 of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that §33-16-3a 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 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.

§5-16-7. Authorization to establish group hospital and surgical insurance plan, group major medical insurance plan, group prescription drug plan and group life and accidental death insurance plan; rules for administration of plans; mandated benefits; what plans may provide; optional plans; separate rating for claims experience purposes.

(a) The agency shall establish a group hospital and surgical insurance plan or plans, a group prescription drug insurance plan or plans, a group major medical insurance plan or plans and a group life and accidental death insurance plan or plans for those employees herein made eligible and establish and promulgate rules for the administration of these plans, subject to the limitations contained in this article. Those plans shall include:
(1) Coverages and benefits for X-ray and laboratory services in connection with mammograms when medically appropriate and consistent with current guidelines from the United States Preventive Services Task Force; pap smears, either conventional or liquid-based cytology, whichever is medically appropriate and consistent with the current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists; and a test for the human papilloma virus (HPV) when medically appropriate and consistent with current guidelines from either the United States Preventive Services Task Force or The American College of Obstetricians and Gynecologists, when performed for cancer screening or diagnostic services on a woman age eighteen or over;
(2) Annual checkups for prostate cancer in men age fifty and over;
(3) Annual screening for kidney disease as determined to be medically necessary by a physician using any combination of blood pressure testing, urine albumin or urine protein testing and serum creatinine testing as recommended by the National Kidney Foundation;
(4) For plans that include maternity benefits, coverage for inpatient care in a duly licensed health care facility for a mother and her newly born infant for the length of time which the attending physician considers medically necessary for the mother or her newly born child: Provided, That a plan may not deny payment for a mother or her newborn child prior to forty-eight hours following a vaginal delivery, or prior to ninety-six hours following a caesarean section delivery, if the attending physician considers discharge medically inappropriate;
(5) For plans which provide coverages for post-delivery care to a mother and her newly born child in the home, coverage for inpatient care following childbirth as provided in subdivision (4) of this subsection if inpatient care is determined to be medically necessary by the attending physician. Those plans may also include, among other things, medicines, medical equipment, prosthetic appliances, and any other inpatient and outpatient services and expenses considered appropriate and desirable by the agency; and
(6) Coverage for treatment of serious mental illness.
(A) The coverage does not include custodial care, residential care or schooling. For purposes of this section, "serious mental illness" means an illness included in the American psychiatric association's diagnostic and statistical manual of mental disorders, as periodically revised, under the diagnostic categories or subclassifications of: (i) Schizophrenia and other psychotic disorders; (ii) bipolar disorders; (iii) depressive disorders; (iv) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; (v) anxiety disorders; and (vi) anorexia and bulimia. With regard to any covered individual who has not yet attained the age of nineteen years, "serious mental illness" also includes attention deficit hyperactivity disorder, separation anxiety disorder and conduct disorder.
(B) Notwithstanding any other provision in this section to the contrary, in the event that the agency can demonstrate ~~actuarially~~ that its total ~~anticipated~~ costs for the treatment of mental illness for any plan ~~will exceed or have exceeded~~ exceed two percent of the total costs for such plan in any experience period, then the agency may apply whatever additional cost-containment measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan for the next experience period.
(C) The agency shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, limitations on inpatient and outpatient benefits, utilization review, implementation of cost-containment measures, preauthorization for certain treatments, setting coverage levels, setting maximum number of visits within certain time periods, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, using provider networks and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(b) The agency shall make available to each eligible employee, at full cost to the employee, the opportunity to purchase optional group life and accidental death insurance as established under the rules of the agency. In addition, each employee is entitled to have his or her spouse and dependents, as defined by the rules of the agency, included in the optional coverage, at full cost to the employee, for each eligible dependent; and with full authorization to the agency to make the optional coverage available and provide an opportunity of purchase to each employee.
(c) The finance board may cause to be separately rated for claims experience purposes:
(1) All employees of the State of West Virginia;
(2) All teaching and professional employees of state public institutions of higher education and county boards of education;
(3) All nonteaching employees of the Higher Education Policy Commission, West Virginia Council for Community and Technical College Education and county boards of education; or
(4) Any other categorization which would ensure the stability of the overall program.
(d) The agency shall maintain the medical and prescription drug coverage for Medicare-eligible retirees by providing coverage through one of the existing plans or by enrolling the Medicare- eligible retired employees into a Medicare-specific plan, including, but not limited to, the Medicare/Advantage Prescription Drug Plan. In the event that a Medicare-specific plan would no longer be available or advantageous for the agency and the retirees, the retirees shall remain eligible for coverage through the agency.
CHAPTER 33. INSURANCE.
ARTICLE 16. GROUP ACCIDENT AND SICKNESS INSURANCE.
§33-16-3a. Same -- Mental health.
(a) (1) Notwithstanding the requirements of subsection (b) of this section, any health benefits plan described in this article that is delivered, issued or renewed in this state shall provide benefits to all individual subscribers and members and to all group members for expenses arising from treatment of serious mental illness. The expenses do not include custodial care, residential care or schooling. For purposes of this section, "serious mental illness" means an illness included in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, as periodically revised, under the diagnostic categories or subclassifications of: ~~(I)~~ (A) Schizophrenia and other psychotic disorders; ~~(ii)~~ (B) bipolar disorders; ~~(iii)~~ (C) depressive disorders; ~~(iv)~~ (D) substance-related disorders with the exception of caffeine-related disorders and nicotine-related disorders; ~~(v)~~ (E) anxiety disorders; and ~~(vi)~~ (F) anorexia and bulimia.
(2) Notwithstanding any other provision in this section to the contrary, in the event that an insurer can demonstrate actuarially to the Insurance Commissioner that its total anticipated costs for treatment for mental illness, for any plan will exceed or have exceeded two percent of the total costs for such plan in any experience period, then the insurer may apply whatever cost containment ~~measurers~~ measures may be necessary, including, but not limited to, limitations on inpatient and outpatient benefits, to maintain costs below two percent of the total costs for the plan: Provided, That for any group with twenty-five members or less, the insurer may apply such additional cost containment measures as may be necessary if the total anticipated actual costs for the treatment of mental illness will exceed one percent of the total costs for the group plan year beginning after October 3, 2009, an insurer providing a "group health plan", as defined in section one-a of this article, with an average of more than fifty employees on business days during the preceding calendar year, may not apply cost containment measures as provided in this subdivision unless the insurer can demonstrate that the application of this section results in an increase of two percent of the actual total costs of coverage for the plan year involved with respect to medical-surgical benefits and mental health benefits under the plan: Provided, however, That such cost containment measures implemented are applicable only for the plan year following approval of the request to implement cost containment measures.
(3) The insurer shall not discriminate between medical-surgical benefits and mental health benefits in the administration of its plan. With regard to both medical-surgical and mental health benefits, it may make determinations of medical necessity and appropriateness, and it may use recognized health care quality and cost management tools, including, but not limited to, utilization review, use of provider networks, implementation of cost containment measures, preauthorization for certain treatments, setting coverage levels including the number of visits in a given time period, using capitated benefit arrangements, using fee-for-service arrangements, using third-party administrators, and using patient cost sharing in the form of copayments, deductibles and coinsurance.
(4) The ~~provisions of~~ amendments to this subsection shall apply with respect to group health plans for plan years beginning on or after ~~January 1, two thousand three~~ October 3, 2009.
(b) With respect to mental health benefits furnished to an enrollee of a health benefit plan offered in connection with a group health plan, for a plan year beginning on or after January 1, 1998, the following requirements shall apply to aggregate lifetime limits and annual limits.
(1) Aggregate lifetime limits:
(A) If the health benefit plan does not include an aggregate lifetime limit on substantially all medical and surgical benefits, as defined under the terms of the plan but not including mental health benefits, the plan may not impose any aggregate lifetime limit on mental health benefits;
(B) If the health benefit plan limits the total amount that may be paid with respect to an individual or other coverage unit for substantially all medical and surgical benefits (in this paragraph, "applicable lifetime limit"), the plan shall either apply the applicable lifetime limit to medical and surgical benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not distinguish in the application of the limit between medical and surgical benefits and mental health benefits, or not include any aggregate lifetime limit on mental health benefits that is less than the applicable lifetime limit;
(C) If a health benefit plan not previously described in this subdivision includes no or different aggregate lifetime limits on different categories of medical and surgical benefits, the commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code under which paragraph (B) of this subdivision shall apply, substituting an average aggregate lifetime limit for the applicable lifetime limit.
(2) Annual limits:
(A) If a health benefit plan does not include an annual limit on substantially all medical and surgical benefits, as defined under the terms of the plan but not including mental health benefits, the plan may not impose any annual limit on mental health benefits, as defined under the terms of the plan;
(B) If the health benefit plan limits the total amount that may be paid in a twelve-month period with respect to an individual or other coverage unit for substantially all medical and surgical benefits (in this paragraph, "applicable annual limit"), the plan shall either apply the applicable annual limit to medical and surgical benefits to which it would otherwise apply and to mental health benefits, as defined under the terms of the plan, and not distinguish in the application of the limit between medical and surgical benefits and mental health benefits, or not include any annual limit on mental health benefits that is less than the applicable annual limit;
(C) If a health benefit plan not previously described in this subdivision includes no or different annual limits on different categories of medical and surgical benefits, the commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code under which paragraph (B) of this subdivision shall apply, substituting an average annual limit for the applicable annual limit.
(3) If a group health plan or a health insurer offers a participant or beneficiary two or more benefit package options, this subsection shall apply separately with respect to coverage under each option.
The bill (Eng. Com. Sub. for H. B. No. 3288), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3305, Relating to the powers and duties of probation officers.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
O n page three, section six, lines thirty-three and thirty- four, by striking out the words "taken without unreasonable delay before a judge" and inserting in lieu thereof the words "brought before the court for a prompt and summary hearing".
The bill (Eng. Com. Sub. for H. B. No. 3305), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3313, Allowing depositories and banks to meet the security requirement necessary to be a depository for boards of education by providing a letter of credit from a federal home loan bank.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Banking and Insurance, was reported by the Clerk and adopted:
On page eight, section six, lines one hundred sixteen and one hundred seventeen, by striking out the words "Investment Management Board or the West Virginia Board of Treasury Investments" and inserting in lieu thereof the words "Municipal Bond Commission".
The bill (Eng. Com. Sub. for H. B. No. 3313), as amended, was then ordered to third reading.
The Senate proceeded to the tenth order of business.
Eng. Com. Sub. for House Bill No. 3063, Relating to hunting, tagging and reporting bear.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Eng. Com. Sub. for House Bill No. 3146, Relating to seniority rights for school service personnel.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
Eng. House Bill No. 3340, Relating to entry into a data state compact among the Higher Education Policy Commission, Council for Community and Technical College Education and State Board of Education.
On first reading, coming up in regular order, was read a first time and ordered to second reading.
At the request of Senator Chafin, unanimous consent being granted, the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 771 (originating in the Committee on Finance)- -A Bill making a supplementary appropriation of federal funds out of the Treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending June 30, 2009, to the Crime Victims Compensation Fund, fund 8738, fiscal year 2009, organization 2300, to the Governor's Office - Office of Economic Opportunity, fund 8797, fiscal year 2009, organization 0100, to the Governor's Office - Commission for National and Community Service, fund 8800, fiscal year 2009, organization 0100, to the Department of Agriculture, fund 8736, fiscal year 2009, organization 1400, to the Division of Forestry, fund 8703, fiscal year 2009, organization 0305, to the State Department of Education, fund 8712, fiscal year 2009, organization 0402, to the State Department of Education - School Lunch Program, fund 8713, fiscal year 2009, organization 0402, to the State Department of Education - Aid for Exceptional Children, fund 8715, fiscal year 2009, organization 0402, to the State Board of Rehabilitation - Division of Rehabilitation Services, fund 8734, fiscal year 2009, organization 0932, Division of Environmental Protection, fund 8708, fiscal year 2009, organization 0313, Division of Health - Central Office, fund 8802, fiscal year 2009, organization 0506, Division of Health - West Virginia Safe Drinking Water Treatment, fund 8824, fiscal year 2009, organization 0506, to the West Virginia Health Care Authority, fund 8851, fiscal year 2009, organization 0507, to the Division of Human Services, fund 8722, fiscal year 2009, organization 0511, to the Adjutant General - State Militia, fund 8726, fiscal year 2009, organization 0603, to the West Virginia State Police, fund 8741, fiscal year 2009, organization 0612, to the Division of Criminal Justice Services, fund 8803, fiscal year 2009, organization 0620, to the Division of Public Transit, fund 8745, fiscal year 2009, organization 0805, to the Bureau of Senior Services, fund 8724, fiscal year 2009, organization 0508, to the Workforce West Virginia - Workforce Investment Act, fund 8749, fiscal year 2009, organization 0323, to the Division of Human Services - Temporary Assistance for Needy Families, fund 8816, fiscal year 2009, organization 0511, and to the Division of Human Services - Child Care and Development, fund 8817, fiscal year 2009, organization 0511, all supplementing and amending the appropriations for the fiscal year ending June 30, 2009.
Senate Bill No. 772 (originating in the Committee on Finance)- -A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending June 30, 2009, to the Department of Agriculture - General John McCausland Memorial Farm, fund 1409, fiscal year 2009, organization 1400, to the Department of Transportation - Division of Motor Vehicles - Motor Vehicle Fees Fund, fund 8223, fiscal year 2009, organization 0802, to the Bureau of Senior Services - Community-Based Service Fund, fund 5409, fiscal year 2009, organization 0508, and to a new item of appropriation designated to the West Virginia Northern Community and Technical College - WVNCC Land Sale Account, fund 4732, fiscal year 2009, organization 0489, supplementing and amending chapter ten, Acts of the Legislature, regular session, 2008, known as the Budget Bill.
And,
Senate Bill No. 773 (originating in the Committee on Finance)- -A Bill making a supplementary appropriation from the balance of moneys remaining unappropriated for the fiscal year ending June 30, 2009, to a new item of appropriation designated to the Department of Agriculture - Land Protection Authority, fund 8896, fiscal year 2009, organization 1400, by supplementing and amending chapter ten, Acts of the Legislature, regular session, 2008, known as the Budget Bill.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bills (S. B. Nos. 771, 772 and 773) contained in the preceding report from the Committee on Finance were each taken up for immediate consideration, read a first time and ordered to second reading.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. House Bill No. 2050, Expanding the counties covered by West Virginia Route 2 and Interstate 68 Authority to include Cabell, Mason and Jackson counties; and increasing the number of members.
Eng. Com. Sub. for House Bill No. 2423, Relating to the Board of Medical Imaging and Radiation Therapy Technology.
Eng. House Bill No. 2841, Extending the time for the city council of Richwood to meet as a levying body.
And,
Eng. House Bill No. 2913, Relating to the Statewide Independent Living Council.
And reports the same back with the recommendation that they each do pass.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bills (Eng. H. B. No. 2050, Eng. Com. Sub. for H. B. No. 2423, Eng. H. B. No. 2841 and Eng. H. B. No. 2913) contained in the preceding report from the Committee on Government Organization were each taken up for immediate consideration, read a first time and ordered to second reading.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Eng. Com. Sub. for House Bill No. 2133, Increasing the penalties for discarding trash on land and in streams.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
John Pat Fanning,
Chair.
At the request of Senator Fanning, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2133) contained in the preceding report from the Committee on Natural Resources was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on the Judiciary.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 2421, Requires that inoperable fire hydrants be painted black and be reported to emergency dispatch centers.
And has amended same.
Eng. House Bill No. 2539, Authorizing professional licensing boards to combine administrative staff functions.
And has amended same.
And,
Eng. House Bill No. 3192, Requiring reports to the Governor from state agencies to be made available electronically via the internet.
And has amended same.
And reports the same back with the recommendation that they each do pass, as amended.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bills (Eng. Com. Sub. for H. B. No. 2421, Eng. H. B. No. 2539 and Eng. H. B. No. 3192) contained in the preceding report from the Committee on Government Organization were each taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2621, Prohibiting the use of cell phone and text-messaging devices while operating a motor vehicle except when using a hands-free device or in the case of an emergency.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2621) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Eng. Com. Sub. for House Bill No. 2695, Providing criminal penalties for a hunter who fails to render aid to a person the hunter shoots while hunting.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
John Pat Fanning,
Chair.
At the request of Senator Fanning, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2695) contained in the preceding report from the Committee on Natural Resources was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on the Judiciary, with amendments from the Committee on Natural Resources pending.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2739, Enhancing the service and enforcement of domestic violence protective orders issued by state courts.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2739) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2771, Relating to the West Virginia Alcohol and Drug-Free Workplace Act.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2771) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2819, Authorizing miscellaneous agencies and boards to promulgate legislative rules.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2819) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2860, Regulating the sequestration and storage of carbon dioxide.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on April 7, 2009;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 2969, Requiring firefighters to have annual hazardous materials training.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2969) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on Government Organization pending.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 3155, Relating to the renewal of the West Virginia Small Business Linked Deposit Program.
With an amendment from the Committee on Economic Development pending;
Now on second reading, having been read a first time and referred to the Committee on Finance on April 3, 2009;
And reports the same back with the recommendation that it do pass as amended by the Committee on Economic Development to which the bill was first referred.
Respectfully submitted,
Walt Helmick,
Chair.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3194, Making it a misdemeanor to knowingly file false information with the Secretary of State.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3194) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 3195, Establishing a funding mechanism for state aid for local health departments.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3195) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. House Bill No. 3197, Authorizing municipalities to permit nonpolice officers to issue citations for littering.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bill (Eng. H. B. No. 3197) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on the Judiciary, with amendments from the Committee on Government Organization pending.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3240, Giving the Commissioner of Motor Vehicles authority to approve all-terrain vehicle rider safety awareness courses.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on April 6, 2009;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 3295, Relating to the West Virginia State Treasurer's Office.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. H. B. No. 3295) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Bowman, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 3339, Facilitating the complete closure of the Gwinn, otherwise known as the Midwest Services Landfill, located in Summers County.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Edwin J. Bowman,
Chair.
At the request of Senator Bowman, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3339) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on the Judiciary.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, April 9, 2009, at 11 a.m.
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